R. v. Lai, 2017 BCSC 2594

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Lai, 2017 BCSC 2594 Date: 20171124 Docket: 26899-2 Registry: Vancouver Regina v. Alan Teck Meng Lai Restriction on publication: pursuant to s. 486.4 of the Criminal Code of Canada Before: The Honourable Mr. Justice Schultes Ruling on Admissibility of Similar Fact Evidence Counsel for the Crown: D.P. Montrichard Counsel for the Accused: P.M. McGowan (attending by teleconference) K.G. McLeod Place and Date of Hearing: Vancouver, B.C. June 27-29, 2017 Place and Date of Judgment: Vancouver, B.C. November 24, 2017 1.

Introduction [ 1 ] In this application, which is being made at the conclusion of the Crown’s case, the Crown seeks to have the evidence of the two complainants, S.K. and K.P., treated as similar fact evidence in relation to each other. The accused, Mr. Lai, opposes the application. [ 2 ] He is charged with four counts, consisting of one count of sexual assault causing bodily harm and a second count of administering a stupefying drug to assist in the commission of a sexual assault in relation to each complainant. [ 3 ] The offences against Ms.

K. are alleged to have occurred on November 28, 2012, in Richmond, and the ones against Ms. P. on June 11, 2013, in Vancouver. 2. The Evidence of S.K. [ 4 ] Ms. K. testified that she first met Mr. Lai at an after-hours club in Vancouver in the winter or spring of 2012. According to her direct evidence, earlier that evening she had gone to a nightclub in South Vancouver. While she was there, she met and became friendly with a woman and that woman’s group of friends.

At this nightclub, she consumed alcohol and ecstasy, but described herself as “still in control”. [ 5 ] She accompanied her new friend and group to the after-hours club, where she remained until about 5:00 or 6:00 a.m. Mr. Lai had introduced himself to her inside, but the music was very loud so she could not really hear him. While they were in the club, he gave her an ecstasy pill. [ 6 ] When this club closed, the friend and her group were then going on to another gathering, which Ms. K. understood she was not welcome to attend. As she was standing outside, she realized she had lost her wallet.

Her new friend gave her $20 to assist, but she did not think that would be enough for her to get home to Richmond. Mr. Lai then grabbed her arm and said that if she came with him, he could give her a ride home. She accepted and took a taxi with him to an apartment that he shared with roommates. [ 7 ] When they went to the kitchen of his apartment, she asked for the ride home and he offered her a drink. He said he could not give her a ride. She took the drink, which she described as “kind of like liquid ecstasy”. She had seen him prepare it and it was “sort of a clear colour” and “like a Sprite mixture drink”.

She drank it all and said it had “sort of an off taste”. Mr. Lai consumed the same kind of drink that she had. [ 8 ] In her direct evidence she said that after spending some further time at Mr. Lai’s house, she left and made her way to her grandmother’s house. Her grandmother gave her some money so she could afford to take a taxi home. [ 9 ] It was approximately six months later that she next heard from Mr. Lai. She was still upset about the way the first time that she

had met him ended, with him failing to provide her with a ride home despite having said he would do so. However, after receiving two or three Facebook messages and exchanging some texts, she agreed to go out with him. She did this even though she was still upset, because she was just coming out of an abusive relationship, was lonely, and “wanted to go out and have a good night”. Her understanding was that he was going to take her out to eat and then to a party. [ 10 ] She gave him her neighbour’s address, because she did not think she knew him well enough to provide her home address.

She was living with her parents in Richmond. [ 11 ] About half an hour before Mr. Lai arrived, she drank one of her father’s 45-calorie beers. [ 12 ] She said he picked her up in a grey sports utility vehicle “at roughly around 7:00 to 8:00”. He had brought some liquor with him and he offered what she described as a “pre-drink” before the party. They also stopped at a liquor store “near No.3 Road” to purchase more liquor for the party. Mr. Lai wanted to make that stop. [ 13 ] He gave her the first drink about ten minutes after picking her up, after they had parked in a secluded area “past the airport”.

She described the drink as Sprite and vodka, clear in colour, served in the kind of red plastic cups that are often used at barbecues, with no ice. It tasted “a little bit off” and had what she described as a “B.O.” taste, which I took to mean body odour. She had a second drink of the same kind in the vehicle. It was a lot stronger than the first one. Mr. Lai prepared both of her drinks. She “sort of saw” him doing it, but was not paying too much attention. They were having conversation and she was a bit nervous because she had not seen him in a long time. [ 14 ] Ms. K. could not recall how full the drinks were.

She drank all of the first one and, from what she could remember, all of the second one too. She thought Mr. Lai was drinking as well, but was “not a hundred percent sure”. [ 15 ] When this was all happening, they were in the front seat of his vehicle. After the second drink, she felt groggy and then did not remember anything. Her last memory before blacking out was talking to Mr. Lai. Next, she recalled “flashing in and out” of consciousness. During this process, she first saw Mr. Lai with her in the back seat, then saw him in the front seat. [ 16 ] When she woke up, he was “smacking” her face.

Her vagina was sore and she was feeling pressure in her lower abdomen. She later clarified in relation to the vaginal soreness that she felt like she had been “penetrated”. In addition, the nose ring that she had been wearing was missing and she had eyelash glue in her hair. She believed that the eyelash glue had gotten into her hair because she was lying with her head on her clutch bag and the pressure had caused the container of glue inside it to open. The leggings that she had been wearing were on, but her bra and panties were off.

Her bra was on the rear seat and the panties were on the floor. [ 17 ] She felt very disoriented and groggy. She defined groggy as not fully in control of her body, “just sort of coming in and out” and feeling very dizzy. She went on to explain that she had trouble walking and was not fully aware of what was going on. The vehicle was still parked in the same place and it was dark out. [ 18 ] She said she was “still very out of it”, but was “pretty upset”. She asked Mr. Lai what had happened and he told her that she had taken a nap. She later added that he told her that she had drunk too much and blacked out.

When she asked him if they had had sex, he confirmed that they had and asked, “You don’t remember?” She answered, “No.” [ 19 ] She explained that she did not include this statement by Mr. Lai regarding sex having occurred between them on the first day of her direct examination because she had a severe headache, was feeling a bit overwhelmed, and felt like she could not explain anything. The same was true of her comment on the second day of her direct evidence about him slapping her when she woke up, which she had not mentioned previously. [ 20 ] Returning to her narrative, Ms.

K. said she needed to urinate and left the vehicle to do that. There were no washrooms in the area. While she was outside, she confirmed the feeling that she had had while she was still in the vehicle that she was bleeding from her vagina. She did not believe that it was menstrual blood, because it was not her time of the month and such bleeding lasts for a much longer period and is preceded by severe abdominal and back pain for several days, which she did not have in this case. This abdominal pain prior to her menstrual period is also different than the pain she experienced after waking up in Mr.

Lai’s vehicle. [ 21 ] She did not want to get back in the vehicle, but he kept telling her that he would give her a ride home. Because it was a secluded area, she thought it would be best to accept the ride. After he dropped her off, which she said was at around 10:00 p.m., she felt groggy and very “out of it”. She has had hangovers after excessive drinking and this was definitely something different. Later that night Mr.

Lai texted her, suggesting that they meet up and talk about it, but she did not want to see him again. [ 22 ] The next day, after some internal debate and seeking the advice of her mother and her best friend, Ms. K. went to the hospital to be examined. She first went to Richmond, but was then referred to Vancouver General Hospital, where she underwent a sexual assault examination. [ 23 ] In cross-examination of Ms. K., Mr.

Lai’s counsel brought out inconsistencies between her current testimony and her previous statements, and pointed out where she had testified about matters that she had never described previously to the police or Crown counsel, despite their apparent significance. In addition, answers were elicited from her in support of the suggestion that there has been a degree of tainting of her evidence. [ 24 ] The most significant of these various responses were that: • Although she testified that the night she met Mr.

Lai was during winter or spring, and she confirmed that she remembered that because it was cold outside, she agreed that she had told Crown counsel in her pretrial interviews that it was unlikely that it was winter because she was wearing heels. • She said she had four drinks at the night club earlier in the evening, consisting of beer and “maybe” mixed cocktail-type drinks in

cups. However she agreed that she had told Crown counsel in her pretrial interview that she had had “lots of shots” at the night club. • She took two ecstasy pills at the nightclub, in addition to the one she received later from Mr. Lai at the after-hours club. She had told Crown counsel she was only under the influence of two. She did not mention having received a pill from Mr.

Lai in either of her statements to the police. • After agreeing that she had stayed until the after-hours club closed, which she initially said was at 6:00 a.m., she said she did not take the SkyTrain home, despite a station being nearby, because they do not run at 5:30 and that, “I didn’t necessarily say we stayed until complete closing, we stayed until pretty early in the morning.” She then explained she does not take transit, either the SkyTrain or buses. • She did not tell the police in either of her statements that Mr. Lai offered her a ride home from the after-hours club, nor about the events that followed.

Later, when it was suggested that she had omitted everything after exchanging their contact information outside the club in her police statements, she said, “I left a little bit out because I was ashamed.” (Reference to being ashamed was a persistent explanation for various omissions in her evidence.) She denied that she was attempting to deceive the police by omitting it. She said she was “scared and in a bad place” in her life. Similarly, she denied misleading the officer in her June 2013 statement by saying that Mr.

Lai had told her that he lived downtown and had two roommates, when in reality she had seen those things herself when she went to his apartment. • The beverage that Mr. Lai offered her at his apartment on the night that they first met was Grey Goose vodka, she was “pretty sure” with Sprite. Although from what she could remember it was a clear mixture, she agreed that she had told Crown counsel that she understood it to consist of vodka and cranberry juice.

When it was suggested to her that cranberry juice is not clear, she said she was not a hundred percent sure, and later added that there is also such a thing as white cranberry juice. She further explained that the reason that she had said it was cranberry juice was because the drink was “bitter in taste”. • She agreed that she had not mentioned the “liquid ecstasy” component described by Mr.

Lai until her direct evidence, including in her previous discussions with Crown counsel. • In one of the more significant additional pieces of evidence elicited on cross-examination, she agreed that after having the drink, she and Mr. Lai went to the bedroom and had sexual intercourse. She took the position that whatever he had given her in the drink took away her ability to make a judgment, and that she could not say she was “in control” with respect to providing her consent. She went on to say that “it was so overpowering to the point where I wasn’t in control of my…body.

It was overwhelming.” Although she maintained that the effect of the drug was overpowering, she accepted that she had told Crown counsel outside of the courtroom during the course of her evidence that this sexual intercourse was not “forced”. She also agreed that she had specifically denied ever having had intercourse with Mr. Lai before November 28 in her November police statement. • When asked if there had been some question in her mind whether she had had intercourse with Mr.

Lai at his apartment, she said she did not remember the full night and that there had been the same flashing in and out of her recollection that she had described in connection with the incident in his vehicle. • She said that he contacted her for the get-together on November 28 by Facebook message and text.

She then agreed that her November police statement had her saying that she had initiated it by a phone call. • Although she did not think that there was any alcohol in her house that could have been used to make a mixed drink, she accepted that she had “possibly” told Crown counsel that she had a beer “or a mixed drink” before Mr. Lai picked her up. • In contrast to her direct evidence about giving Mr.

Lai her neighbour’s address because she was not comfortable with him having her home address yet, she confirmed that in both of her police statements she had said that he picked her up at her house. • She said that when she went out with him on November 28, there was no possibility in her mind that she was going to have sex with him that evening.

She was then presented with her November statement in which she agreed she had said that “maybe” she would have had sex with him that night. • Although in her direct evidence the day before she had described his SUV as grey, she did not remember its colour during cross- examination. • After confirming that the drink that he initially gave her when he picked her up was from liquor that he already had in the vehicle, and that the liquor they subsequently bought was not from a liquor store connected to a pub, she accepted that in her June statement in 2013, she had described them stopping and Mr.

Lai going into a liquor store attached to an Irish pub near her grandmother’s house (which is in Steveston), and that he had poured her a drink from what was purchased there. She then explained that they had gone to the liquor store first, but that Mr. Lai thought the prices were too high, as a result of which they went to a different store in the No. 3 Road area. Her explanation for the content of the June statement was that it was given six months after the incident. • She agreed that she had told Crown counsel in her pretrial interviews that Mr.

Lai had mixed drinks for her from the clear liquor that he bought from a liquor store on Steveston Highway. She said that maybe she was mistaken (in the statement, I took it) and that she was confident in her current evidence on that point. • She accepted that she had not mentioned being given a drink by Mr. Lai as soon as she got in the vehicle in either of her police statements. • She also accepted that she had not mentioned in either statement feeling groggy, or any other effects of the drinks, before losing consciousness.

She explained, in relation to the omission from the June statement, that she had really tried to “bury in her mind” what had happened. • Nor had she mentioned Mr. Lai slapping her face or being in the back seat with her in those statements.

• She had told the police in her November statement that she did not think she was in the same parking lot when she woke up as she had been when she had the drinks. She explained that that was because she was still confused in her mind about what had happened and was not “in a full state of mind”, which I took to mean not in a fully-functioning state. • She had said in her June statement that her leggings were off, which she also repeated to Crown counsel in the pretrial interview.

She explained that she had thought long and hard about that point, and did not think that her answer in her police statement was “the most accurate answer at the time”. • In contrast to her direct evidence that the bleeding she experienced after waking up was distinct from her menstrual period, in her June statement had she described getting her period afterwards, and in reference to attending the hospital that next day, that one of the uncomfortable aspects of it was that “I had my period”. (Crown counsel brought out in re-examination that in her November statement she had qualified her certainty about what was happening when she told the officer “it was kind of like I have my period, but I don’t have my period”.) • She agreed that she had expressed at the hospital in Richmond that she was not sure whether she had been drugged or not.

She also agreed that in fact she was not sure at that time, although she is sure now. The close friend with whom she spoke before going to the hospital suggested that something might have been put in her drink, but Ms. K. herself also felt that that might have happened. • Before she gave her second statement to the police, in June 2013, the investigators told her that at least one other complainant had come forward alleging that she had been drugged with GHB and then sexually assaulted by Mr. Lai. However, Ms.

K. said that she came to her own decision about whether to give that further statement. • She has searched for further information about this case using Google and found one news story that referred to the allegations that she was making, as well as those being made by at least one other person. She also did some internet research about GHB effects after she spoke to the first police officer in November 2012. However, she denied finding out in that manner about the taste that it can have. 3. The Evidence of K.P. [ 25 ] She testified that she met Mr.

Lai at a birthday party for a friend named Mercedes that was held at a penthouse in Coal Harbour on Saturday, June 8, 2013. She attended the party with her friend Ashley, and said that other than Mercedes, none of the other women there were particularly friendly towards her. [ 26 ] Her first contact with Mr. Lai was when they were both in the pool in the rooftop deck where she had gone with Ashley, using the bathing suits provided by the woman who lived at the apartment. There they had a conversation in which Mr.

Lai asked her questions about herself, such as eliciting that she has a young daughter, and told her about some of his interests, such as attending DJ events and going boating. In relation to an upcoming trip to Las Vegas that she had planned, he told her that he knew all the promoters of the clubs there and could help get her into them. There was a poolside bar and Mr. Lai was making alcoholic drinks for her and Ashley.

She stayed for about two hours, leaving at around 7:00 p.m. [ 27 ] Later that evening, he texted her asking her to come out with the rest of the birthday group, which had moved on to another venue, but she was watching movies with Ashley by then and declined. [ 28 ] She said that the next day, through a combination of phone calls and texts, Mr. Lai was asking when she could come out for dinner, or when he could take her out for it. She told him that she could go on Tuesday the 11th, because that was an evening on which the father of her daughter, with whom Ms.

P. was no longer in a relationship, would be caring for their daughter. [ 29 ] According to Ms. P., she was not interested in Mr. Lai as a potential romantic partner, but in light of his apparent numerous connections her friend Ashley had advised her to exchange numbers with him and “keep him in the friend zone”. Her intention was to make the nature of her interest clear at dinner, but to preserve the opportunity to do things such as going boating with him, which she thought would be fun. [ 30 ] As to the nature of the dinner, she described Mr.

Lai telling her, “Oh, I want to take you to sunset dinner.” And when she asked, “Is that a place like a restaurant?” he answered, “Yeah, it’s a place.” Her assumption was that upon arriving at his place, they would hop into his car and go for dinner. She planned to be home by 10:00 p.m. and have only one drink, so that she would be able to drive. She was scheduled to work at seven in the morning the next day. [ 31 ] After she dropped her daughter off, she drove to the address that he had given her, which is an apartment building at 1500 Hornby Street.

She arrived at “6:15-ish”. [ 32 ] Her clothing was tights, a long shirt with a belt that came down to just above her knee, and high heels. The shirt was meant to be worn outside the tights, not tucked into them. [ 33 ] Mr. Lai came outside and let her into the secure parking area with her vehicle.

He told her it was “a little early for dinner” and suggested that she come up and see the apartment, which was around the 22nd floor. [ 34 ] He had a roommate named Raymond who was either in the apartment when they entered or arrived shortly afterwards with groceries. [ 35 ] After telling her about the history of a large Buddha statue in the apartment and showing her the view from the balcony, Mr. Lai told her that instead of sunset dinner, his roommate, who was a good cook, was going to make dinner for them instead. She was disappointed because she had gotten dressed up to go out for dinner, but said okay. Mr.

Lai said that they could go out later if they wanted.

[ 36 ] At that point, she and Mr. Lai were facing each other on a pair of lounge chairs. Mr. Lai then called out, “Hey Raymond, why don’t you make one of your speciality signature shots?” He then said, “It’s really good.” [ 37 ] Ms. P. said that Raymond made the shots, although she did not see him doing it. He then brought three tall double-shot glasses over to them on a small tray. The liquid in them was light red – “like a tinge of red but clear”. They said cheers and all drank their shots. This was about 15 minutes after she arrived in the apartment. [ 38 ] Ms. P. said the drink tasted disgusting.

It was very salty and had a “weird” taste. She thought maybe Raymond was “trying to channel a Caesar”, which she knew had a red-like colour and a salted rim on the glass, although she had never had one. Mr. Lai asked, “What? Do you not like it?” She answered, “What was in there? It was gross. No, I don’t like it.” Raymond began to list a bunch of alcohols that were in it and also said “cranberry”. [ 39 ] After approximately ten minutes, she started to feel funny - really happy, outgoing, and talkative. Both Mr.

Lai and Raymond were asking her a bunch of questions, such as about her friends, her job, and the father of her daughter. Raymond brought out the salad for the dinner and she started to feel sick to her stomach. She said she needed to use the bathroom before eating and Mr. Lai showed her where it was. [ 40 ] She locked herself in the bathroom, because she does not like throwing up and did not want them coming in if they heard her doing it.

She knelt down in front of the toilet bowl and began to burp, trying not to throw up. [ 41 ] The next thing she was aware of was waking up on one of the lounge chairs, at 10:30 p.m. Mr. Lai was lying beside her in the lounge chair in a “spooning-type position”, - his body behind and touching hers. He was rubbing her arm and her side as though to warm her up. There was a comforter over top of both of them. [ 42 ] Raymond was also in the room, but she was not sure in what position. She described herself as freezing cold, shivering but also sweaty, as well as weak and disoriented.

She saw the time on the microwave clock in the kitchen and closed her eyes, pretending she was not awake yet to take the situation in. She stayed like that for five to ten minutes. [ 43 ] When she was able to stand, she noticed that her long top was tucked into the top of her leggings all the way around, in a way that she certainly would not have worn it and that she thought looked stupid. It had not been that way when she went into the bathroom to throw up. [ 44 ] When she stood up, she was wobbly and could not walk properly. There was dinner at the table and they told her to come over and eat.

They asked her if she was okay. She said she did not feel good and something was wrong. She sat at the table with her head in her hands. [ 45 ] She refused offers of food or water from them, because she was concerned that those items also contained drugs. She then accused them of drugging her. Their response was to deny it. [ 46 ] Mr. Lai said she drank too much and passed out. She maintained that she had one shot and had then passed out for four hours. She accused them of putting “G”, a well-known slang term for the drug GHB, in her drink. At this point, Mr.

Lai asked Raymond if he put any G in the shot and Raymond answered that he had not. She told them she wanted to leave. [ 47 ] She went to her purse, took out her wallet, and began counting her money conspicuously. Mr. Lai was laughing and asked, “You think I need your money? You think I would steal your money?” They were trying to get her to eat something, but she insisted on leaving. [ 48 ] In response to her demand, Mr. Lai said that he needed to buzz her out (of the parking lot, I infer) and that he would come with her. [ 49 ] In the elevator, he kept asking her why she was so mad.

He also asked how come she thought they put G in her drink and why she would say that. She did not want to give him the satisfaction of engaging in conversation and so remained silent. He rode in the passenger seat of the vehicle and opened the parking gates for her, at which point she unlocked the passenger door and curtly told him to get out of the vehicle, which he did. [ 50 ] She drove to her home in New Westminster. At home she changed her outer clothing, but kept her underwear on.

She then went to Royal Columbian Hospital, but was directed on to Surrey Memorial Hospital because there was a forensic nurse examiner there. She got there around midnight and underwent a sexual assault examination, including providing various samples of bodily substances, one of which has significance for the further investigation. [ 51 ] Pursuant to the policy governing sexual assault examinations, she was given the option of calling the police right away or taking a form from the examiner, which she could give to the police later to allow them to access the bodily samples that had been taken.

Those samples would be stored for up to a year pending such access. She elected to take the form. She said they also gave her the bags to put the other clothing that she had been wearing at the time of the assault into. She could not recall at that point if her underwear was taken during the examination or if she bagged it herself later.

She then said she was pretty sure that the nurse at the hospital had put her underwear in a smaller bag. [ 52 ] In cross-examination, she confirmed that she had been advised at the hospital that they wanted to seize the underwear, and that she had placed it in an envelope provided for that purpose and given it to them. [ 53 ] She initially said that she got home at 3:00 a.m. and slept for twelve hours. When she got up, she had a pain in her “lower area”, which she defined as being the area from just above to just below her waist.

When she later had a bowel movement, it was extremely painful and she had a significant amount of blood in her stool. She Googled the effects of GHB that evening.

[ 54 ] Starting at 10:55 on the evening of the alleged incident, Ms. P. exchanged text messages with Mr. Lai. She deleted those on her phone, but screenshots from a BlackBerry containing the ones to which she was referred were entered as an exhibit on the trial. She wrote, “You should be embarrassed you G a mother my daughter dad will kill you I’m at the hospital and they know what’s up.” Mr. Lai’s response was that she had a few drinks, got drunk, and that they put a blanket over her and waited for her to wake up.

He also claimed that she had asked him to hold her because she was cold. [ 55 ] At 11:11 p.m., she texted him that her blood alcohol had been tested, which it actually had not been yet, and that she was not drunk. She also said, “Don’t worry I didn’t tell them ur name i’m saving that for a better cause i’m giving your info to ppl who will actually deal with you.” He responded by claiming that he had given her a drink, “vodka water”, and that she had drunk it “perfectly with no complaints”.

As a result, he wondered how she could make that accusation. [ 56 ] The last text message to which she was referred was at 6:22 on the following evening, although there was a time received of 2:30 p.m. on the second page of it. In addition to repeating the accusation, “you g’d me I g-holed (another slang expression, this time for being subject to the effects of GHB) at your place for four hours”.

She advised that the bodily samples taken from her “were in cold storage at the hospital forensics for 1 year for when I decide to lay charges.” [ 57 ] She referred to the belief, I take it on behalf of those who had examined her, that she had been anally sexually assaulted and she described injuries to her anus. She requested Raymond’s last name and said that if Mr.

Lai was not willing to talk to her anymore, she would get her lawyer to talk to his lawyer “and u can deal with the police you and Raymond.” [ 58 ] She mentioned having seen a hypnotist and a therapist for her difficulties, although that was not true. [ 59 ] Finally, she was referred to a passage, apparently in the same text message, in which she said, “Ok I’m taking this as you are still blaming your roommate so I have no choice I’m filing now.” [ 60 ] She described herself as feeling angry when she wrote these messages and said she was “just trying to get some answers.” [ 61 ] She also described having phone conversations with Mr.

Lai after the incident in which she attempted to obtain $50,000 each from him and Raymond, in return for not going to the police about what had happened to her. She explained that she did not want to be known as a “rat” and she did not want to go through the court process. She told Mr. Lai that if she received the $100,000, she would give him the paper authorizing the police to access the hospital samples, so he could rip it up.

She did not ultimately receive any money, so she went to the police. [ 62 ] As I have said, she deleted the corresponding text messages on her own phone, because she had a boyfriend at the time, and she also did not want the police to read that she was asking for money. She deleted the entry of Mr. Lai’s address in her vehicle’s navigation system, because she did not want it to come up with her boyfriend. [ 63 ] The challenges to Ms. P.’s credibility in cross-examination were no less extensive than were put forward in relation to Ms. K, but were of a different nature.

Rather than raising inconsistencies among her various versions of events or new evidence that had not previously been disclosed, the focus with Ms. P. was on attempting to show that her interactions with Mr. Lai were pursuant to a plan to extort money from him, one that predated her allegations of the offences. Matters canvassed with her included that: • She agreed that she was under the impression when she met Mr.

Lai that he had a significant amount of money. • As between the two of them, she believed that she was the first person to make contact after she left the birthday party, letting him know her phone number. Between then and the dinner on June 11, they texted each other about 15 times and spoke on the phone about 10 times. At some point before the dinner she forwarded a photo taken at the party to him, which showed her and her two friends and a third woman in their bikinis. • She viewed their planned get-together as a social dinner rather than a date.

She intended to convey that their relationship was to be a friendship and not romantic by her body language at the dinner, instead of verbally.

She later described her intention as being “to portray myself as a friend”. • She agreed that she had not used the word “restaurant” in her inquiry to him about whether sunset dinner was a place, and that her response to him after he raised it was “sounds romantic”, followed by an emoticon of what she eventually agreed, after some resistance, was a shy or blushing face. • Although she had said in her direct evidence that her alcohol consumption involves having three beers once a week on Saturday night, resulting in her being “buzzed” (which she defined as “just a little bit drunk”), she agreed that in her statement to the police on June 19, 2013, she had answered a question about the number of times she had been drunk with “lots, hundreds”.

She explained that she considered the terms “buzzed” and “drunk” to be equivalent. • At the point that she conveyed the threat that her “daughter dad” would kill Mr. Lai by text, she had not yet spoken to her child’s father about what had happened. She never asked him at any point to kill Mr. Lai, she maintained. She confirmed that her child’s father, M.C., who died in 2014, was a high-ranking member of a well-known criminal gang that she knew frequently engaged in violence. She did not believe, however, that she had ever told Mr. Lai about Mr.

C.’s gang membership or the gang tattoo he had on his hand or lower arm. On the contrary, she said she remembered not disclosing it, and she “makes it clear” not to tell people about the tattoo. • Contrary to her direct evidence that she had gone to her home at 3:00 a.m. and slept for 12 hours, she agreed in cross-examination that she had actually gone to her boyfriend’s home in Coquitlam.

Although she did not leave the bed until 3:00 p.m., it was possible that she had been corresponding with her child’s father during this period. • In re-examination, she explained that she had described going to her own home instead of to her boyfriend’s house, “because then [the police] wouldn’t have to interview him too, as well, and it was irrelevant too…well it is now, but I mean it didn’t have anything to

do with…what happened or anything after that had happened as well.” She elaborated that “anything after” meant “the contact me andAlan had and the police.” • She agreed with the suggestion that she had engaged in a course of extortion in the days following the incident. In addition, sheagreed that she was in constant communication with Mr. C., and that she spoke to him before and after each call to Mr. Lai. However, shedenied that Mr. C. was advising her or guiding her through the process. In fact, when she told him what had happened, he wanted Mr.

Laiand Raymond to get “beat up and hurt”, but she told him she would rather handle it on her own and try to get money from them, or go tothe police. She maintained that the plan was carried out on her own, not in conjunction with Mr. C. • She accepted that when she communicated the death threats to Mr. Lai, they would have taken on an added degree of significancebecause of her connections. In re-examination she explained that she had said her child’s father was going to kill Mr.

Lai, “because Iknew he was a scared (by which I took her to mean scary) person…you know, like an organized crime person.” • In response to the suggestion that she could face retribution for testifying about the involvement of a gang member in criminalactivity, thus providing her with a motive to downplay any involvement of Mr.

C. in the extortion, she said, “Yeah, I guess so.” • She accepted the suggestions that she had initially deceived the police about her involvement in extortion, had attempted to deleteevidence of her texts because she thought she was going to go to jail, and had lied to the police about the extent of her communicationswith Mr. Lai after the incident. She did not disclose the extortion until the police confronted her with evidence of it.

Unless it had beenbrought up, she would not have mentioned it. • When it was suggested that she was a person who would actively deceive somebody when it suits her purpose, she replied, “In thiscase, yes.” (When asked in re-examination to explain what she had meant by “in this case, yes,” she said, “I don’t know.

I was just kindof answering, so he wouldn’t keep asking.”) • Dealing with the physical after-effects of the incident that she claimed to have experienced, she agreed that she has suffered fromhemorrhoids in the past and that they have also caused bleeding. • In addition to the Google inquiries about GHB that Ms. P. admitted making on June 12, she Googled the subject “maybe a coupleof times” after that. She also Googled both of the accused’s names and looked them up in “CSO”, which I took to mean Court ServicesOnline.

In her internet search, articles relating to this case came up and she agreed that included other people making allegations and thenature of those allegations, including drugging and sexual assault (before the Crown indicted Mr. Lai separately he was jointly chargedwith Mr. Law and there were additional complainants). It was during “the same timeframe” as June 12 that she was Googling the names.In re-examination, however, she said that her Googling about the case came after a police officer told her there was an

article onlineabout it and this was “way after” she first met with the police. [64] The Crown relies on forensic evidence that is independent of Ms. P.’s testimony, in order to support it. In overview, Mr. Lai’sDNA profile, said to have derived from semen, was found on the waistband of the underwear that she said she had been wearing thatnight, and the urine sample taken from her at the hospital was analyzed and found to contain a significant amount of GHB. 4.

Applicable Principles [65] The Crown and defence each emphasized different aspects of the test for admission of similar fact evidence, as I will discuss,but the overall principles are not in dispute. [66] Despite the general rule that excludes evidence of an accused’s propensity as a means of showing that it is more likely that theycommitted the offence in question, an exception to that rule exists for evidence of similar acts to demonstrate propensity that is so cogent(that is, compelling) and relevant that its probative force outweighs the prejudice that arises from its admission: R. v.

Handy, 2002 SCC56 , [2002] 2 S.C.R. 908 at para. 41. Handy is an essential decision, in which Justice Binnie clarified the law relating to similarfact evidence significantly. [67] The key aspect of the probative value of similar fact evidence is the unlikelihood that the similarity between the similar factevidence and the charged offences is the result of coincidence: Handy at paras. 42 and 47.

To demonstrate the unlikelihood ofcoincidence, the propensity evidence must be situation-specific and clearly linked to the offences charged – not evidence of generalpropensity, but “repeated conduct in a particular and highly-specific type of situation”. [68] The prejudice that must be overcome by the probative force of the evidence includes both moral prejudice (the accused is morelikely to have committed the offence because they are a bad person) and reasoning prejudice (the trier of fact is, among other things,distracted from attention to the actual offence charged by the propensity evidence): Handy at para. 100. [69] To be admissible, the evidence must support what has been called the double inference: (1) that the accused has asituation-specific propensity to act in a certain way; and (2) that they did so in the circumstances of this case: also para. 100. [70] The “principal driver of probative value” is “the connectedeness (or nexus) that is established between the similar fact evidenceand the offences alleged”: para. 76. [71] The precise degree of similarity that is required will vary according to the nature of the case and the issue in relation to whichthe prosecution seeks to lead the propensity evidence.

The “drivers of cogency will be different” in a case in which, for example, theevidence is led to prove the commission of the actus reus, as opposed to evidence identifying the accused as the person who committedit, in which a high degree of similarity among the acts is required. In another example provided in Handy, a compelling inference may bedrawn about the animus of an accused towards the deceased based on the accused’s previous attempts to harm him, even if thoseattempts did not resemble the circumstances of the murder: paras. 78 to 80.

[ 72 ] Similarity in this respect does not require a strong peculiarity or unusual distinctiveness underlying the events being compared: para. 81. An approach of toting up each minute similarity or dissimilarity and arriving at some sort of net balance of them is also unhelpful: R. v.

Shearing , 2002 SCC 58 at para. 60 . [ 73 ] A non-exhaustive list of factors that may be helpful in showing connectedness between the proposed evidence and the offences includes: their proximity in time, the extent to which they are similar in detail, the circumstances surrounding them, any intervening events, and anything else that would tend to support or rebut their underlying unity: Handy at para. 82 . [ 74 ] It is essential that the prosecution identify the live issue in the trial to which the evidence relates.

Care must be taken not to define the issue so broadly that what is in effect evidence of general propensity to commit bad acts ends up being admitted: Handy at paras. 115 and 116 . [ 75 ] The strength of the evidence that the similar acts actually occurred is a factor that must be taken into account when assessing their probative value. Where admissibility is bound up with credibility, as it is in this case, the analysis requires a consideration of the credibility of that evidence.

While the ultimate assessment of the evidence is obviously for the trier of fact, unless the evidence is found to be “reasonably capable of belief” at the admissibility stage, it will not be able to overcome its prejudicial effect: para. 134. [ 76 ] Since the reasoning process underlying the probative value of similar fact evidence is the unlikelihood that the similar events are the product of coincidence, evidence of collusion among witnesses as to the acts in question will undermine the strength of the inferences that might otherwise arise from those acts.

As a result, when there is an air of reality to allegations of collusion, the Crown must demonstrate, on a balance of probabilities, that the evidence has not been tainted by it: para. 112. [ 77 ] This test for admissibility must also be met when the Crown seeks to use different counts on the same indictment as similar fact evidence in relation to each other, as in this case.

However the prejudice analysis may be somewhat different for count-to count similar fact, because the other potentially morally repugnant acts are already before the court and there is already a process in place for ensuring that the counts are considered separately. [ 78 ] Concerns about prejudice are reduced when the trier of fact will be a judge sitting alone, since the judge will already have heard the evidence at the admissibility stage and can, for the most part, be safely relied on to compartmentalize their analysis of the propensity evidence and demonstrate its correct use in a transparent way: R. v.

T.B. , 2009 ONCA 177 at paras. 30 to 32 . 5. Positions (

a) Crown counsel [ 79 ] In addition to canvassing the general principles that I have summarized, Crown counsel spent some time elaborating on the threshold question of when proposed similar fact evidence is reasonably capable of belief. [ 80 ] The Crown pointed out that evidence has been said to meet this threshold if it is not so unreliable or flawed that it is not reasonably capable of belief: R. v. Titmus , 2004 BCCA 633 at para. 17 . [ 81 ] In R. v.

Pickton , 2006 BCSC 1448 , Justice Williams, after noting that this is “not an overly-high threshold”, defined it in helpful terms at para. 35: [35] In my view, “reasonably capable of belief” reduces to this: I must be satisfied that the proposed evidence is such that, having full regard to its deficiencies and frailties, a jury [to which I would add a judge acting as the trier of fact], acting reasonably, could find it to be credible. If I am not so satisfied, then I am obliged to conclude that the evidence does not meet the necessary threshold.

As the trial judge, my function is limited to that of a gatekeeper; the ultimate assessment of credibility rests with the trier of fact. [ 82 ] The Crown also relied on the analysis in R. v.

J.G.E.S. , 2005 BCSC 1915 , as an example of the correct approach: [66] I conclude at this point, in dealing with the threshold requirement of being “reasonably capable of belief”, that it is not appropriate to make a detailed commentary on findings on the credibility of the witnesses, or the weight that should be given to their evidence, particularly as I have not heard full submissions from either counsel directed to that issue in the overall context of all of the evidence in the case. [67] I note that in R. v. Handy , supra , there were serious credibility issues with the complainant . . .

Notwithstanding that, Mr. Justice Binnie held that the evidence passed the threshold and was capable of raising at least the first inference sought by the Crown, as set out in para. 135. [68] The mere fact of inconsistencies and problems with the credibility of a witness, then, is not sufficient to exclude the evidence. I also conclude that I can consider all of the evidence, and that I am not restricted to the evidence of the witness herself. I can thus consider, for example, the evidence in corroboration of her version.

But I conclude [that] I should not attempt, at this point, to resolve whether disputed matters are, in fact, inconsistencies, or if they are, what the effect of those inconsistencies should be on the credibility of the witness. [69] In this case, there is evidence which may corroborate the evidence of Ms. P., but again, I do not think it is appropriate to determine the weight to be given to that corroborative evidence at this point. [70] It is fair to say, at this point, that there may be questions raised about the evidence of Ms. P. as to whether some of the matters she testified about are possible . . .

[71] I can also say that there may be evidence which may be accepted as corroboration . . . [72] Taking all of that evidence into account, and without attempting to perform an ultimate assessment of the credibility of Ms. P., Iam satisfied that her evidence meets what I consider to be a relatively low threshold, that it is not – [in] the words of the trial judge in R.v.

Titmus, – “so unreliable or flawed that it is not reasonably capable of belief”. [83] With respect to the purposes for which similar fact evidence can be admissible, the Crown points out that this can includeestablishing the actus reus of the offence, which encompasses the absence of consent where that is an issue (as in Shearing) as well as tosupport the credibility of the complainants (as in the classic decision of the Supreme Court of Canada in R. v. B.(C.R.), (SCC), [1990] 1 S.C.R. 717).

The use of similar fact for those two purposes will often be inextricably intertwined. [84] On the substance of this application, Crown counsel “seeks to have the similar fact evidence used to enhance eachcomplainant’s credibility as it relates to establishing the actus reus of the offences charged.” [85] They submit that while there are certainly inconsistencies in the evidence of both complainants and Ms. P. admitted to lyingunder oath, a detailed commentary on their credibility or the weight to be given to their evidence is not appropriate at this stage.

Instead,that process needs to be undertaken at the conclusion of the trial, in light of all the evidence, including other potential supporting orcontradictory evidence. Nor is it appropriate, the Crown submits, for me to resolve whether disputed matters are actually inconsistenciesor to determine the effect of any such inconsistencies.

A trier of fact acting reasonably could find both complainants to be credible, whichis all that is required to meet the relatively low threshold. [86] Referring to other helpful factors underlying probative value that were identified in Handy, Crown counsel noted that the periodof time between these incidents is relatively short, within which Mr. Lai is unlikely to have changed his behaviour. Continuity ofbehaviour over time is of course a significant aspect of the probative force of different events.

And while two incidents are obviously theminimum number that could potentially be considered as similar fact in relation to each other, that number does not bar admissibility andis not unusual in cases of this kind, as shown by several cases that the Crown cited. [87] Crown counsel also identified what they argue are a number of relevant similarities in the surrounding circumstances, as well ascertain distinctive unifying features of both sets of acts. Those circumstances include: the lack of an extensive prior relationship withMr.

Lai, consisting of only one previous meeting in both cases; the similar gender, age, and physical appearance of both complainants;and their discomfort in the social situation in which they first met him. Crown counsel has attached a more extensive and detailedappendix of similar surrounding circumstances, which I have considered but in the interests of conciseness will not quote from. [88] As to the key unifying features of the offence, the Crown points to: Mr.

Lai’s transition of the complainants from what isdescribed as a “normal public dating scenario” to a more isolated one; providing them or requesting that they be provided with a mixeddrink of unknown origin and unusual taste; the complainants’ quick experience of unusual physical symptoms and memory loss; themovement of their bodies and rearrangement of their clothing while they were unconscious; his explanation to them after they regainedconsciousness that they had drunk too much alcohol and passed out; their experience of effects inconsistent with alcohol consumptionand the amount of alcohol they had actually consumed; and injuries to, or at least bleeding from, their vaginal areas. [89] The Crown argues that on a balance of probabilities that these are unlikely to be the product of coincidence. [90] On the question of prejudice, the Crown points out that the moral prejudice here is limited by the fact that the discreditable actsbeing relied on are already part of the evidence on the indictment, rather than being extrinsic to it as is frequently seen, and the fact that Iam hearing it without a jury.

Reasoning prejudice is likewise diminished by the fact that Mr. Lai is not taken by surprise in any way bythe evidence, the issues on both counts are essentially the same and, sitting alone, I am unlikely to be drawn into confusion by theevidence. [91] Taken as a whole, the Crown says this is a case where the probative value of the evidence goes well beyond the requiredthreshold of a balance of probabilities and significantly outweighs any prejudicial effects. [92] As to collusion or concoction, the Crown argues that nothing here even raises an air of reality.

Both complainants went tohospital in relation to the offences within a day of when they said it occurred. Ms. K. involved the police on the same day and Ms. P.about eight days later. Ms. K. involved the police before Ms. P.’s incident had even occurred. Her statement that she was not sure shehad been drugged made to the examining official indicates that she suspected she may have been. They remain unknown to each other atthe time of trial. Ms.

P. did not Google the case until “way after” she had spoken to the police, and while she Googled the effects of GHBon June 12, there is no evidence that this affected her reporting of the allegation.

Regardless, the finding of a level of GHB in her bloodconsistent with the symptoms that she reported shows that her account of what happened stands reliably apart from whatever informationshe may have obtained. [93] In any event, the Crown says that whatever possible weight could be given to the potential for collusion or concoction herewould still not reduce the probative force of the complainants’ evidence below the required threshold. (

b) Mr. Lai’s counsel [94] In his canvass of the overall principles, Mr. Lai’s counsel stressed the narrow basis and exceptional nature of the admissibilityof similar fact evidence – arising only when “highly relevant and cogent” evidence is presented. It is “usually” or “prima facie”inadmissible and prejudice arising from its admission is presumed. [95] He also placed great emphasis on the need identified in Handy to go beyond mere catchphrases when identifying the purposefor which the Crown is seeking to admit the evidence. As helpfully explained in a passage from the fourth edition of McWilliamsCanadian Criminal Evidence 4th ed. (Toronto: Canada Law Book, 2013) at

Chapter 10-7, such phrases are not “automatic tickets toadmissibility”. Instead, the proponent of the evidence must do more, clearly articulating how and by what method of reasoning the

proffered evidence proves the fact in issue in the context of that specific prosecution. [ 96 ] Counsel spent a meaningful amount of time on the principles governing collusion as well. Handy reminds us that collusion is a crucial factor, because it rebuts the premise on which admissibility depends.

He emphasized that the mere possibility or suspicion of it shifts the burden to the Crown to show that the evidence has not been tainted, and that the concern arises well beyond the situation of complainants actively colluding to fabricate their allegations and actually encompasses all forms of tainting, intentional or unintentional.

In particular, exposure to information about complaints other than their own can affect the reliability of a complainant’s evidence, even if they have not consciously adopted that information. [ 97 ] He submitted that the evidence of tainting in this case is much more compelling than was present on the facts of Handy , where the accused’s ex-wife told the complainant, before the incident alleged by the complainant occurred, how she had obtained a substantial compensation award just by saying that the accused had abused her. [ 98 ] In this case, counsel identifies several concerns of this nature. Ms.

K. was provided with information about another complainant, including the allegation that this person had been drugged with GHB and sexually assaulted, in the context of addressing her own reluctance to provide a statement. She looked up information about GHB and its effects on the Internet, as well as a news story that included the nature of the allegation by her and another complainant. Similarly, Ms.

P. looked up the effects of GHB before speaking to the police and agreed that she had read articles about the case, including one with the allegations of another complainant that dealt with drugging and sexual assault. In addition, she was specifically advised by a police officer about a case-related article, which she then read. [ 99 ] Mr. Lai’s counsel submits that these complainants were provided with information about the core allegations that the Crown now relies on. In essence, there is no meaningful difference between what occurred here and overt collusion among complainants.

This situation may be even more damaging, because the police were the conduits of part of the information. [ 100 ] He submits that in doing their research online, it is likely that the complainants read the same articles, which could account for the similarities in their versions of events and descriptions of their symptoms. On the latter point, he notes that the Crown’s toxicology expert confirmed that information concerning the symptoms of GHB ingestion are readily available on the Internet. [ 101 ] In the defence’s view, the impact of tainting can readily be seen on the evidence of Ms.

K., who went from not being sure when she was at the hospital whether she had even been drugged or not, to demonstrating complete certainty – describing various symptoms of GHB ingestion and a fading in and out of her consciousness for the first time in her trial evidence. [ 102 ] Handy at para. 111 speaks of increasing concerns about tainting where there is the existence of a profit motive and/or a willingness to concoct. Both are present here, Mr. Lai’s counsel submits – in the form of Ms.

P.’s extortion scheme and both complainants’ demonstrated willingness to tailor their evidence and even lie when it suits their objectives. [ 103 ] Counsel stresses that it is not for the defence to disprove collusion or tainting once an air of reality with respect to it has arisen. After the concerns having were exposed during cross-examination of the complainants, it was for the Crown to show that the implications that have been raised were actually of no consequence. [ 104 ] On the issue of whether the evidence is reasonably capable of belief, Mr.

Lai’s counsel notes Handy ’s observation at para. 136 that: If the proffered similar fact evidence is not properly capable of supporting the inferences sought by the Crown, the analysis generally need go no further. [ 105 ] It is also important to emphasize that the cumulative effect of several unreliable witnesses, which counsel says is what we have in the present case, goes no farther towards constituting evidence that is reasonably capable of belief than that of a single witness. As it was expressed in R. v. Canvin , 2012 NWTSC 47 , at para. 58: Whether there are two witnesses or five is immaterial.

The evidence of an unreliable witness is not made stronger by the evidence of another unreliable witness. Similar comments were made in R. v. Bereznicki , 2015 ABCA 144 . [ 106 ] In both cases, trial judges rejected proffered similar fact evidence at the gatekeeper stage, because of what they found to be the frailties and inconsistencies in that evidence. In neither case were those problems as egregious as what we have here, Mr. Lai’s counsel submits. [ 107 ] The same result occurred in R. v.

J.D. , 2014 ONCJ 743 , in which the judge found, with respect to two of the complainants, “many inconsistencies in their evidence and numerous admissions by both of lying to the police and to the court respecting their statements and evidence”: para. 132. [ 108 ] Counsel also cited R. v. J.B. , 2011 YKYC 4 , as an example of the rejection of this kind of evidence for failure to pass the reasonably capable of belief threshold.

However in that case the judge found that a conflict between the evidence of the two witnesses on an important issue, when their evidence was looked at as a whole, negated the probative value of both witnesses’ evidence. However I do not think this analysis is consistent with the process envisioned by Handy.

It confuses the ultimate weight to be assigned to individual pieces of evidence with the gatekeeper function, which looks only at its reasonable capability of being believed. [ 109 ] In addition to reviewing the inconsistencies in the evidence of the two complainants that were brought out in cross-examination, which I have already summarized, Mr. Lai’s counsel also pointed to areas in which their evidence was either contradicted by other objective evidence or the supporting evidence relied on by the Crown failed in its intended task.

[ 110 ] With respect to Ms. K., there was evidence of text messages from her phone to Mr. Lai’s number on November 9 and 24, despite her evidence that all their arrangements to meet arose on the day of the incident; and text messages and phone calls before their meeting on that day, despite her denial that she contacted him repeatedly to move him along in arriving. [ 111 ] There were also several calls and texts between them initiated by her the following day, rather than radio silence by her, as counsel says one might expect after such an incident as she described, or any efforts by Mr. Lai to contact her.

This is in addition to her adding him as a Facebook friend after the incident that had occurred the first time they met. [ 112 ] As to the physical effects that she described, counsel observes that the amount of alcohol she would have consumed in the vehicle, given her description of the cups and how full they were, would have incapacitated even an experienced drinker quite aside from anything untoward having been added to it.

In that regard, the low blood alcohol level obtained for her at the hospital 26 hours later could actually be the residue of a very serious level of alcohol consumption, although the expert evidence was that a calculation of her blood alcohol level at an earlier time based on that reading was not possible. [ 113 ] The sexual assault examination of her at the hospital offers no objective support for her version of events, he stresses. [ 114 ] With respect to Ms.

P., her claim to have seen the time on the microwave when she came to consciousness after the incident is contradicted by the photos taken of the apartment during the police investigation, which show no clock on the microwave. And according to the security fob records and videos from the building, she was already out of the apartment by 10:27, after which all of her post-waking interactions with Mr.

Lai inside are supposed to have happened. [ 115 ] Rather than having been socially isolated at the birthday party, as she claimed, the picture of her in the bathing suit with the two friends and the third woman show her seeming to be enjoying herself, and she subsequently sent that same photo to Mr.

Lai. [ 116 ] As to the supporting evidence relied on by the Crown, counsel asks me to note that the admissions refer to DNA testing of underwear obtained from her by the police on June 19, whereas her evidence is that she provided the underwear to hospital staff on the night of the incident. [ 117 ] In addition, there is said to be no admissible evidence of the DNA profiles that the RCMP’s reporting scientist, Julia Harnett, used to match the DNA sample from Mr.

Lai to the sample found on the underwear. [ 118 ] Also under this area, the defence says that it is unclear whether the bodily substance on the underwear is actually semen, as the Crown contends. It did not fluoresce under the special lighting used to detect it, as one would expect. Ms. Harnett’s opinion that it was semen was based on the assumption that results of the three screening tests used on it had been positive.

In fact, that is not a safe assumption because numerous other bodily and non-bodily substances can cause false positives in one of the tests, including items that might be expected to be found following sexual intercourse. Significantly in light of the fact that Ms. P. said she was still breastfeeding her child, human breast milk can also cause such a false positive on that test.

Another of the tests also has some possibility of false positives, and the third test suffers from the shortcoming that research has not yet been done on the ability of other kinds of cells to produce positive results. [ 119 ] Dealing with the other key confirmatory pillar of the Crown’s case with respect to Ms. P., Mr.

Lai’s counsel reminds me that the QTrap machine that analyzed her urine samples for the presence of GHB expressed one of the results as 867 nanograms per millilitre, which, if it is correct, is within the amount that is produced by the body itself. [ 120 ] The Crown called evidence to address this difficulty, which they contend was a typographical error, but counsel submitted that none of it actually goes to the critical issue of showing that the nanogram per millilitre figure is incorrect. [ 121 ] On the supposedly confirmatory aspect of the sexual assault exam, Mr.

Lai’s counsel points out that the abrasions that were found are consistent with innocuous causes, no injury was observed to the anal area, and there appears to have been no report of pain, which is usually associated to such injuries (although the examining doctor did indicate that pain might not be felt until a bowel movement). [ 122 ] The defence submits that in light of the numerous frailties, inconsistencies and contradictions with reliable evidence in these complainants’ evidence, and the demonstrated willingness of both to mislead investigators, their evidence is not reasonably capable of belief.

In other words, it is not strong enough to support the inferences sought by the Crown or to overcome the heavy prejudice that would attach to its admission. Counsel goes so far as to brand both of them as so-called Vetrovec witnesses — witnesses whose evidence is incapable or would be unsafe to rely on without independent corroboration. [ 123 ] The defence also argues that the degree of connectedness between these allegations, a crucial driver of probative value according to Handy , is insufficient to support their admission as similar fact in relation to each other.

Two incidents cannot fairly be described as a pattern, in the absence of some striking degree of similarity which is certainly not present here. The physical setting and the manner in which the substance was administered are quite distinct from each other in each allegation. In the case of Ms. P., Mr. Lai was not even the one who is alleged to have provided it.

The similarities in terms of the sexual act itself are not notable, and the unfortunate prevalence and resulting public knowledge of drug-facilitated sexual assaults means that a description of it occurring cannot be described as a distinguishing feature. [ 124 ] As to the surrounding circumstances, the defence submits that there is nothing that speaks cogently to the improbability of coincidence. The incidents occurred seven months apart, in different cities. The manner and timing of the complainants’ original meetings with Mr.

Lai and the arrangement of the get-togethers during which the offences are said to have occurred also have little in common. [ 125 ] As a result of these numerous shortcomings, the defence submits that the proposed similar fact evidence falls far short of the significant degree of probative force that is needed to overcome the serious prejudice that accompanies the introduction of evidence of such morally repugnant acts.

(

c) Crown reply [126] In the interest of maintaining as concise a description of counsel’s positions as possible, I will concentrate only on those pointsthat end up having an impact on the outcome. [127] In reply to the defence cases suggesting that unreliable evidence cannot support other unreliable evidence, the Crown said thatthese authorities are difficult to reconcile with the comments of the Supreme Court of Canada at para. 66 in R. v.

Arp, (SCC), [1998] 3 S.C.R. 339 that: …Though the similar fact evidence, standing alone, may fall short of proof beyond a reasonable doubt, it can be relied upon to assist inproving another allegation beyond a reasonable doubt. Two separate allegations can support each other to the point of constituting proofbeyond a reasonable doubt, even where a reasonable doubt may have existed in relation to each in isolation… [128] With respect to the absence of any clock on the microwave in the police photos of Mr. Lai’s kitchen, the Crown points out thatthe photos were taken several weeks after the alleged incident.

The contradiction between Ms. P.’s times and the video evidence andsecurity fob for the apartment are said to be just what one would expect after four years and following the effects of GHB ingestion. [129] As to the path of the underwear from seizure to testing, Crown counsel pointed to other parts of Ms.

P.’s testimony that showedthat she had the underwear in a smaller bag and kept it at her house until the police seized it, which is not necessarily inconsistent withher later evidence that she gave the underwear to “them”, that is the hospital staff, on that night. [130] On the issue of the evidence of DNA profiles underlying Ms. Harnett’s opinion, the Crown pointed to the description of theDNA profiles being generated from the underwear, Ms. P., and Mr. Lai in the admissions of fact, and Ms.

Harnett’s reference to thatadmitted factual basis for her opinion, coupled with her detailed testimony of what the lab did and what she made of it in terms of hercomparison of the profiles and her ultimate opinion. [131] On the question of whether the substance found was semen, the Crown refocused the inquiry on the three testing preconditionsto Ms. Harnett’s opinion. Those preconditions were met, leading to her opinion that the profile came from semen.

I took the Crown to besaying, in essence, that alternative bases for positive test results and/or an unexplored area of research with respect to one of the tests donot displace the probative force of the fact that there were three actual positive findings. 6.

Discussion [132] I will begin by resolving some of the conflicting submissions with respect to the legal principles to be applied. [133] First, it is useful to clarify that the purpose or issue for which similar fact evidence is sought to be admitted is not the same thingas the reasoning process by which the conduct in question is said to support the double inference.

The former will usually be quitegeneric – identity, actus reus, supporting credibility, etc. – whereas it is the way in which the conduct is actually supposed to advancethe theory of close connection between the evidence that will need to be very focused and specific, as explained in the quote fromMcWilliams provided by the defence. [134] If by “unreliable”, the cases relied on by the defence mean evidence that is not reasonably capable of belief, then they arecorrect in saying that unreliable evidence cannot support other unreliable evidence.

But if they mean that evidence with weaknesses thatwould otherwise lead to a reasonable doubt cannot form the basis of similar fact evidence that mutually supports other equivalentevidence to a standard that can then support a conviction, then Arp is the correct and governing authority. [135] No matter how attenuated moral and reasoning prejudice may be when the issue is count-to-count similar fact evidence in ajudge-alone trial, the fundamental analysis required by Handy is still based on the concept that admitting evidence that does no morethan illustrate general propensity is always inherently prejudicial and can only be overcome by cogent evidence of closely connectedbehaviour. [136] The way in which the test for whether potential similar fact evidence is reasonably capable of belief was expressed in thePickton decision is the most helpful in this analysis.

It makes clear that this is a prospective assessment of how the evidence is capable ofbeing treated by a trier of fact acting reasonably at their ultimate stage of deciding the case, not a current finding with respect to itsbelievability by the judge who is performing the gatekeeper function. [137] J.G.E.S. correctly describes the need to refrain from engaging in what amounts to the ultimate process of weighing andassessment, but without at least identifying the probable ultimate effects of what appear to be inconsistencies and contradictions at thegatekeeper stage, it is difficult to see how the role assigned to the judge as gatekeeper by Handy can be carried out.

To that extent I mustdepart from its analysis. [138] But by the same token, the likely ability of other supportive evidence to address any shortcomings that have been identified inthe complainants’ own evidence is a valid part of the predictive process of identifying reasonable capability of belief. [139] If there is an air of reality to allegations of collusion among witnesses, or other forms of tainting that could undermine theimprobability of coincidence, the Crown can meet its burden of showing that the evidence has not been so tainted by pointing to theevidence as a whole, and arguing that based on it that it is more likely than not that tainting did not occur.

The burden does notnecessarily require the leading of additional evidence to meet it, although that is certainly permissible. [140] I am satisfied that similar fact evidence in this case is relevant to the questions of whether the actus reus was committed byMr. Lai, including whether he proceeded with sexual activity in the knowing absence of consent, and thereby to support the credibility ofeach complainant. While I agree that there are some factual distinctions between the surrounding circumstances and the means by which

drugging and assaults were alleged to have been carried out, and that the mere fact of drugging by means of GHB in order to take sexual advantage is not, in itself, particularly distinctive these days, I am satisfied that there are core allegations common to both incidents that describe a cogent and situation-specific manner of acting on Mr. Lai’s part. [ 141 ] Specifically, I find that the pretext of a casual dating situation, converted at his request into a more physically isolated one; Mr.

Lai’s role as the dispenser or requester of a mixed drink of unknown origin then given to the complainant; the quick onset of powerful symptoms, followed by loss of memory; a return to consciousness, with a significant rearrangement of their physical position and clothing; and a cover story presented to her that she drank to excess and passed out, combined with his expressed obliviousness to any other cause, are meaningful common features. [ 142 ] I would characterize the differences in some of the surrounding circumstances, including the participation of Raymond in the second incident, as indications of different contexts and opportunities to put essentially the same plan of operation into effect.

And while GHB drugging is a well-known phenomenon, it has this particular means of accomplishing it is not an invariable or generic means of proceeding in the public understanding. [ 143 ] I do not regard the gap in time between the incidents as being especially significant, and both occurred within the Lower Mainland, in areas that Mr. Lai could access quite readily in the normal course of his social activities. [ 144 ] With respect to the strength that the evidence of the acts occurred, Ms. K.’s evidence was fraught with difficulties.

She was contradicted by her previous statements on virtually every important aspect of her narrative, and she introduced significant new allegations for the first time in her trial testimony, including what amounts to an allegation of an additional drugging and sexual assault on the night that she and Mr. Lai met.

Her explanations for those difficulties were unconvincing, and there is no independent support for the incriminating parts of her evidence – not that there needs to be as a matter of law, of course, but given the problems with her own evidence something reliable to restore the trier of fact’s faith in it is essential as a practical matter. [ 145 ] While it is always theoretically possible to extract only the incriminating portions of a witness’s evidence and disregard the rest, I can identify no reasonable process of analysis by which her evidence, standing alone, could be believed.

For the purposes of the similar fact analysis, I find that her evidence is not reasonably capable of belief. [ 146 ] I consider Ms. P.’s evidence to be on a different footing. She acted greatly to the detriment of her credibility in two very serious ways: by attempting to extort money from Mr. Lai and Raymond, rather than reporting the incident promptly to the police, and by lying under oath about where and how she spent the next 12 hours after returning from hospital.

The former suggests that she values extrajudicial retribution and holds values more consistent with it than the legitimate court processes, and the latter suggests, as we tell juries in the case of such a lie, that she may not take her oath seriously. Either might ultimately be fatal to her credibility. [ 147 ] She also downplayed her own apparent motives and enthusiasm in seeking to go out with Mr.

Lai, and there is some potential evidence contradicting her evidence of the timing of the events. [ 148 ] But her evidence itself was given in a coherent and potentially persuasive fashion and her explanations for her wrongdoing, which she did not seek to evade at any point, were disarmingly candid. Perhaps most importantly, there is significant potential independent forensic support for her having received a significant dose of GHB and having been subject to some form of sexual contact involving ejaculation by Mr. Lai.

His counsel has ably identified various potential weaknesses in that forensic evidence, and while the defence arguments might ultimately succeed in reducing or eliminating its impact, it is certainly not a given at this stage that that will be the result. [ 149 ] Viewing all of this evidence, a trier of fact acting reasonably could certainly believe her evidence, and so it passes that threshold in the analysis. [ 150 ] I do not find any air of reality to the allegation of tainting of the complainants’ evidence, which was argued to be the equivalent of collusion for the purposes of the Handy analysis.

The Googling of symptoms of GHB is not instructive on the improbability of coincidence, because it is not the use of GHB or its effects in themselves that renders Mr.

Lai’s conduct distinctive – it is the manner in which he managed the deployment and consequences of it, according to the evidence of the complainants. [ 151 ] Before such inquiries could impact on the improbability of coincidence, there would have to be evidence that the complainants accessed the same source, otherwise it is a matter going only to their own credibility, and becoming aware that there is another complainant in relation to the allegations of sexual assault by Mr.

Lai using GHB, whether through information provided by the police or a news article, is no more than I would expect to be known by any complainant in these circumstances, since it would routinely be available to the public through the media. [ 152 ] Accepting that tainting can arise unintentionally or unconsciously and that the media and that the police can be conduits does not mean that it should be automatically deemed to arise from case-related knowledge of any kind.

I am frankly unsure how any complainant in a multi-count case could remain insulated from the kind of generic information that the evidence discloses. There was no evidence that something that went to the actual manner in which the offences were described by the co

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