Guelph traditional Chinese medicine practitioner sentenced to 60 days house arrest for sexual assault

A traditional Chinese medicine practitioner formerly practicing in Guelph has avoided jail time, but still has two trials to go.

At a sentencing hearing on May 25, Superior Court Judge Gisele Miller sentenced Shu-Seng (Sherman) Lai to 60 days house arrest and three years probation for sexually assaulting a patient in his former practice in Guelph in 1992.

The allegations centered on vaginal touching which the crown claimed was sexual assault, and the defense argued it was a legitimate TCM practice. However, although Judge Miller said the touching took place, she did not find it a sexual assault beyond a reasonable doubt.

Instead, his conviction was based on a different aspect of the plaintiff’s testimony: that Lai removed a towel without the woman’s consent during a visit to his Guelph clinic in 1992.

Miller announced the guilty verdict in January 2021, following a five-day trial in December 2020.

As part of his sentence, Lai will be explicitly prohibited from practicing traditional Chinese medicine (TCM) during his 60 days of house arrest, but Miller did not impose the restriction during or after his probation.

Not that she needs it.

The College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (CTCMPAO) governs the practice of TCM in Ontario. His website notes that Lai’s license is suspended until after his trials.

Lai was defended by Danielle Robitaille and co-counsel Sydney Hopkins of Henein Hutchison LLP. During the hearing of submissions, Robitaille argued that the jail sentence for the now elderly citizen was inappropriate given the charge. Similarly, Hopkins argued that the coronavirus pandemic should weigh in on the committal judge’s decision.

Miller wrote in his sentencing decision that COVID-19 should be considered, but should not be the determining factor for jail time versus no jail time.

Ahead of sentencing, the defense and Assistant Crown Attorney Judith MacDonald were asked to provide updates on the COVID-19 situation in the prisons. MacDonald said there was no longer an outbreak at Maplehurst Correctional Complex, while Robitaille said there were reports of low vaccination rates among inmates.

Some mitigating factors noted by Miller in his decision include positive character references from Lai’s family and associates.

“One of Mr. Lai’s martial arts students – for 29 years – said that Mr. Lai gave him personal support and taught him about fairness, responsibility for his actions and how to have compassion and forgiving others,” Miller wrote.

In addition to the trauma suffered by Lai’s former patient, the main aggravating factor noted by the justice is that Lai violated his position of trust as a healthcare provider.

“(The victim) presented a deeply personal issue which she entrusted to Mr. Lai to handle in a professional manner. Instead, he breached that trust and caused her to feel humiliated and frightened,” the judge wrote.

Along with house arrest and probation, Lai will also have to provide his DNA and be listed as a sex offender for 20 years.

But only if his appeal fails.

According to a notice, Lai intends to challenge the guilty verdict on the grounds that removing the towel was a “fundamentally different offense from that which the Crown sought to prove”, which undermined the fairness of the trial. .

“In particular, the defense suffered prejudice by not being able to cross-examine the plaintiff with notice of this alternative theory of liability,” the notice of appeal states.

This is Lai’s third trial relating to sexual assault allegations by patients, and the first time he has been found guilty.

He has two more trials scheduled for 2021.