Court File and Parties
Court File No.: CR-18-1380 Date: 2020 04 24 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent Counsel: J. Vlacic, for the Crown
- and -
R.K., Applicant Counsel: S. Wickramasinghe and Parmbir Gill, for R.K.
Heard: October 28, 2019
Publication Bans
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as the complainants may not be published, broadcasted or transmitted in any manner.
Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
Reasons for Ruling
(Severance and Similar Fact Evidence Applications)
Coroza J.
A. Introduction
[1] R.K. is charged on a three-count indictment with one count of sexual assault and two counts of sexual exploitation. The charges involve two complainants: B and T.
[2] Count 1 of the indictment is a charge of sexual exploitation in relation to T. Counts 2 and 3 are charges of sexual assault and sexual exploitation, respectively, with respect to B.
[3] Pursuant to s. 591(3) of the Criminal Code, R.S.C. 1985, c. C-46, R.K. has brought an application seeking the severance of Count 1 from Counts 2 and 3 (“the severance application”). He seeks two separate trials. R.K. acknowledges that a trial with all three counts on a single indictment would likely be heard sooner than two separate trials, but he is prepared to waive his s. 11(b) rights because he believes severance would permit two fair trials rather than a single, combined, unfair trial.
[4] The Crown opposes severance and submits that the three counts should remain joined on a single indictment. Furthermore, in responding to the severance application, the Crown has brought its own similar fact evidence application seeking a pre-trial ruling to have the evidence of B and T considered as evidence of similar acts (“the similar fact application”). The Crown argues that the evidence across all three counts shows that R.K. displayed a similar pattern of behavior towards both T and B and that this evidence can rebut the potential defence of innocent association or accident as well as help prove the actus reus of the separate offences.
[5] It is not disputed that the outcome of the similar fact application is a relevant factor on the severance application: see R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146. It is also not disputed that if the severance application fails, the similar fact application will not automatically succeed.
[6] Because the outcome of the similar fact application could significantly impact the severance application, I have decided to deal with it first, followed by R.K.'s application for severance.
[7] The burden of proof in each application is different. On the similar fact application, the Crown bears the burden of demonstrating on a balance of probabilities that the evidence is admissible. Equally, on the severance application, R.K. bears the burden of demonstrating on a balance of probabilities that the interests of justice require severance of the counts: see R. v. Durant, 2019 ONCA 74, at para. 76.
[8] For the reasons that follow, I would dismiss the Crown’s similar fact application and grant R.K.'s application for severance.
B. The Allegations
(i) Overview
[9] R.K. is a teacher and wrestling coach at a local high school in Brampton. The charges relate to two former students. However, the charges concern events that occurred 20 years apart.
[10] T alleges that, during the 2017 school year, R.K. expressed interest in having sexual intercourse with her. They agreed to have sex when she left the school and turned 18.
[11] According to B, she decided to come forward and speak to the police after learning of R.K.'s arrest through Facebook.
[12] B alleges that R.K. sexually assaulted her on two occasions when she was a student at the high school during the late 1990’s. First, B alleges that R.K. grabbed her buttock when she was in a weight room at the school. Second, she alleges that R.K. touched her breasts when he held a door open for her.
[13] For the purpose of these applications, I will summarize a portion of the evidence that the Crown anticipates will be called during the trial. This summary is taken from the material filed by the Crown. Specifically, I have reviewed two police statements and portions of the preliminary hearing.
(ii) Count 1: T's Allegations (2017)
[14] T told the police that in her final year of high school she began to have feelings for R.K., who was her wrestling coach. According to her, they agreed to engage in sexual intercourse once she turned 18.
[15] The police began an investigation into R.K. in June 2017. T's friends had gone to the police and disclosed messages from T detailing her relationship with R.K. and her intention to have sex with him on July 1, 2017, when school ended.
[16] On June 14, 2017, the police obtained a statement from T. At the time of the interview, she was 17 years old.
[17] T acknowledged that R.K. was her wrestling coach and a teacher at the school. She explained that the wrestling season ran from November 2016 to February 2017. During the season, she said she began to develop feelings for R.K. She explained that she was very comfortable around R.K. and that they would exchange dirty jokes with each other.
[18] According to T, around December 2016, another coach showed R.K. a photo online depicting T’s bare stomach. At some later point, T was with a group of other teammates when one of her teammates poked her stomach and R.K. commented, "how'd you know I was going to ask about that". T believed this flirtatious behaviour brought them closer.
[19] Distilled to the essentials, T alleges that she and R.K. were planning to have sex once she turned 18 and had finished high school. She specifically told the police that R.K. called her over to him during practice and showed her the date of July 1, 2017 on his phone. This signalled the date they were going to have sex – it would follow her graduation from high school.
[20] T also told the police that, in May 2017, R.K. had discussed having sex in his home and told her he wanted to take her clothes off.
[21] On June 15, 2017, R.K. was arrested for sexual exploitation (by the invitation of sexual touching) of T.
(iii) Counts 2 and 3: B's Allegations (1997)
[22] On June 16, 2017, B saw a Facebook post from her home in Alberta about the arrest of R.K.
[23] B then contacted the police on June 22, 2017 and came forward with her own allegation of sexual assault. B alleged that when she was 16 or 17 years old and a student at the same Brampton high school, she was sexually assaulted by R.K., who was a gym teacher and wrestling coach at the school.
[24] B was an athlete at the school but not a wrestler.
[25] One day after school, B walked into the school weight room to look for a friend and encountered R.K. as she was about to leave. According to B, R.K. grabbed her buttock and squeezed it, commenting that she would need to "beef up some more".
[26] On another occasion, following the first incident, B was walking down a hallway in the school while R.K. was walking down the same hallway in the opposite direction. R.K. held the door open for her as she walked through the doorway, but he placed the back of his hand along the door so that his palm faced out towards B. As B walked through the door, B alleges that R.K. took his hand off the door and placed it along her breasts. He commented, "don't worry more will come" in apparent reference to her breasts.
C. The Similar Fact Application
(i) Overview
[27] The principles that must be applied to both applications are not disputed. They are helpfully reviewed by both Crown and defence counsel in their written submissions. I will summarize these principles only to the extent that is necessary to deal with each application. Again, I will first deal with the Crown's similar fact application and then deal with R.K.'s severance application.
(ii) The Timing of the Similar Fact Application
[28] The Crown is not required to bring a similar fact evidence application at the time the defence brings a severance application. The Crown is entitled to defer the argument of the admissibility of evidence regarding similar acts across counts until all its evidence has been tendered: see Last, at para. 34. Indeed, in many cases, the Crown will wait until the end of its case to request a ruling with respect to similar fact evidence across counts. However, when a severance application is brought by the defence before the trial, the Crown will often argue that there is a “viable” similar fact evidence application.
[29] The Court of Appeal for Ontario has warned trial judges that “assessing the viability of a similar fact application on a severance application can be tricky, given that the burden to achieve severance is on the defence, while the burden to admit similar fact evidence is on the Crown”: see R. v. Sahdev, 2017 ONCA 900, 356 C.C.C. (3d) 137, at para. 49. This exercise must be approached with great care: see R v. Waudby, 2011 ONCA 707, at para. 4; Sahdev, at para. 49.
[30] In this case, the Crown has not merely asserted its intention to bring a similar fact evidence application later in the trial. Instead, it has in fact brought an application to admit similar fact evidence and seeks a ruling on this issue before the start of the trial. In light of this position, I am not engaging in a mere preliminary assessment of the purported similar fact evidence; I must actually determine its admissibility. I have therefore decided to deal with the Crown’s similar fact application first because the outcome of this application will likely be a very important factor to consider on the severance application.
(iii) Similar Fact Evidence: General Principles
[31] Similar fact evidence is presumptively inadmissible because its significant prejudicial effect will generally outweigh its minimal probative value: R. v. Arp, [1998] 3 S.C.R. 339, at para. 40. Evidence of similar acts will not be admitted across different counts on the indictment unless the Crown establishes on a balance of probabilities that the probative value of the similar fact evidence in relation to a particular issue at trial outweighs its potential prejudicial effect: Arp, at paras. 42, 44; Durant, at para. 77.
[32] This rule aims to prevent the trier of fact from doing two things. First, it aims to prevent them from placing more weight than is justified on the evidence of similar facts (known as "reasoning prejudice"). Second, it aims to prevent them from finding the accused guilty based on forbidden propensity reasoning (known as "moral prejudice"). Propensity reasoning is "reasoning that a person who has engaged in disreputable conduct alleged in one count has a propensity or disposition to do the type of act charged in another count": see R. v. T.C. (2005), 74 O.R. (3d) 100 (C.A.), at para. 54; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31.
(iv) Application of the Principles to this Case
[33] The Crown argues that since R.K.'s defence will likely be a straightforward denial of the allegations, the credibility and reliability of both T and B will be central issues at trial. The Crown's position is that the allegations made by T and B are so connected and similar that they should be admissible across all counts on the indictment in order to rebut the defence of innocent association and to prove that the actus reus of the offences occurred. The Crown's primary argument is that both complainants have described a teacher and coach who engaged in a pattern or system of design involving flirting, teasing and inappropriate sexual behaviour.
[34] Similar fact evidence derives its power from the improbability of coincidence: see Arp, at paras. 44-46. I have considered the evidence of the complainants with this principle in mind. With due respect to the Crown's position, the evidence does not establish a pattern or system of design. I say this for the following reasons.
[35] First, there are differences between the evidence of both complainants with respect to the sexual misconduct. B alleges that R.K. intentionally touched her in a sexual manner on two occasions. By contrast, T denies that R.K. touched her but acknowledges there was a plan in place for the two of them to have sex when she turned 18 and graduated from the high school.
[36] Second, many of the pieces of evidence listed by the Crown as being similar (at paragraph 55 of its factum) are simply too generic to be probative as similar acts. For example, the fact that the complainants are both female, were about the same age (16 to 17), and were both students at the high school adds nothing to the probative value of the evidence. It is not disputed that R.K. is a high school teacher and a wrestling coach. He has been employed at the same school since the late 1990’s and would have likely taught or coached hundreds of students matching the description of the complainants. I do not find these descriptors unique.
[37] Third, the allegations are 20 years apart and remote in time. Binnie J. in Handy explained that a “greater lapse of time tends to undermine the premise of continuity of a person's character or disposition.” I note that there are no other allegations before the court other than two incidents alleged by B in 1997 and the incident alleged by T in 2017.
[38] Fourth, contrary to the Crown’s argument, I find that the nature of the teasing alleged by the Crown with respect to both complainants is different. The allegations made by T suggest that a mutual flirtatious relationship involving dirty jokes and comments about her abdominal muscles later transformed into a mutual plan to have sex once she left the school. On the other hand, B's allegations involve a specific accusation of non-consensual touching of her buttocks and breasts accompanied by verbal comments that left no doubt in her mind that the touching was not accidental but was indeed intentional and sexual. I am not persuaded by the Crown’s argument that the teasing and flirting demonstrates a unique “system of design” or a similar pattern.
[39] Admittedly, in order to succeed on this application, the Crown does not need to demonstrate that the evidence of both complainants is strikingly similar. However, for the reasons outline above, I am not persuaded that there is any probative similarity between the complaints. The evidence the Crown seeks to admit as similar fact evidence in this case is simply too generic to demonstrate an “implausibility of coincidence”: see Arp, at para. 45.
[40] Indeed, the potential prejudice to R.K. of admitting this similar fact evidence is significant. As I see it, the Crown's argument really comes down to this proposition: R.K. is a person of sexually questionable character because he was a person of authority who flirted with his students and is therefore more likely to have acted inappropriately with both complainants. This could lead the trier of fact, hearing all of the counts together, to engage in a prohibited chain of reasoning based on notions of general bad character: if R.K. did it to one student, he is a bad person, and he should be convicted: see Handy, at paras. 72, 85. In my view, this type of argument is extremely prejudicial and involves general, rather than specific, propensity reasoning. Indeed, the comments made by B to the police that it was common knowledge that R.K. was dating other students and was a "bit of a creep" only fortify my conclusion that the evidence across counts has the potential for great mischief if a single jury hears the separate allegations made by B and T during one trial.
(v) Conclusion on the Similar Fact Application
[41] Given the potential for prejudice and the absence of any probative value, T’s evidence should not be introduced as similar fact evidence with respect to B's evidence, and vice versa. The Crown has not met its burden to persuade me on a balance of probabilities that the evidence should be admitted across counts.
[42] The Crown's application is dismissed.
D. The Severance Application
(i) Overview
[43] I now turn to the severance application. R.K. argues that it is in the interests of justice to sever Count 1 (the charge relating to the allegations made by T) from Counts 2 and 3 (the charges relating to the allegations made by B).
(ii) R.K.'s Position
[44] R.K. submits that the interests of justice require severance of Count 1 from Counts 2 and 3 because:
- R.K. intends to testify on Count 1 but not on Counts 2 and 3;
- There is no meaningful factual or legal nexus between the counts;
- The Crown application to adduce similar fact evidence has no merit;
- The total number of trial days is highly unlikely to change if severance is ordered;
- There is no risk of inconsistent verdicts if severance is ordered;
- A joint trial would prejudice R.K. and;
- R.K. will waive his s. 11(b) right to be tried within a reasonable time if severance is ordered.
(iii) Severance: General Principles
[45] Section 591(3)(a) of the Criminal Code gives the court broad discretion to sever counts in an indictment "where it is satisfied that the interests of justice so require".
[46] In exercising this discretion, the court balances the accused's right to be tried on the evidence admissible against the accused with society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner, mindful of the risk that evidence admissible on one count could influence the verdict on an unrelated count: Durant, at para. 72.
[47] The Court of Appeal for Ontario in Durant, at para. 73, held that the following non-exhaustive list of factors should be weighed in determining whether severance is in the "interests of justice" under s. 591(3)(a) of the Criminal Code:
(i) general prejudice to the accused as a result of the influence of the volume of evidence adduced and the effect of verdicts across counts; (ii) the legal and factual nexus between or among counts; (iii) the complexity of the evidence; (iv) the desire of the accused to testify on one or more counts but not on another or others; (v) the possibility of inconsistent verdicts; (vi) the desire to avoid a multiplicity of proceedings; (vii) the use of evidence of similar acts; (viii) the length of trial; (ix) prejudice to the accused's right to be tried within a reasonable time; and (x) the existence or likelihood of antagonistic defences.
(iv) Application of the General Principles to this Case
[48] I am satisfied that R.K. has met his burden to show that the interests of justice require the severance of Count 1 from Counts 2 and 3 on this indictment. The following factors strongly favour severance.
[49] First, as discussed in detail above, the Crown does not have a viable similar fact evidence application. If a single trial were to proceed on all three counts, the jury would have to be told that it could not consider the evidence admissible on Counts 2 and 3 in their consideration of Count 1, and vice versa. While I appreciate that jurors are presumed to follow limiting instructions, I am of the view, as noted above, that there is a risk that the jury will engage in prejudicial thinking if it hears all of these allegations at the same time. Jury instructions can reduce the risk but the risk of moral prejudice remains: see Last, at para. 46.
[50] Second, while there is always a desire to avoid a multiplicity of proceedings, this factor is not pressing in this case. The Crown’s witnesses will not be prejudiced by having two trials. The allegations involve two different complainants who would not need to testify in both trials. B is now an adult who will be testifying about events from 20 years ago. T is a young adult who will testify about events that took place only three years ago. This is not a case where the key evidence comes from young children who have to testify more than once.
[51] Third, there is little chance that a jury hearing B’s case separately will feel that they are missing part of the evidence if they do not hear about the allegations made by T. I am not persuaded by the Crown’s submission that separate trials will prejudice B because R.K.’s arrest for allegations relating to T was the act that prompted her to come forward to the police. According to the Crown, since B's credibility will be a critical issue at this trial, she must be permitted to answer questions regarding why she chose to report the incident after reading about R.K.’s arrest. Whether it is one trial or two trials, I see no impediment to B answering questions as to why she decided to come forward with her allegations and what prompted her disclosure. Indeed, I would be surprised if counsel for R.K. did not explore this during cross-examination during a separate trial involving B. It may very well come out that R.K. had been arrested for another incident involving T. That said, there are several ways of introducing evidence as to why B decided to go to the police without repeating T’s allegations. For example, the parties can file an agreed statement of fact for the jury providing them with general background information as to why and when B decided to go to the police. There is no prejudice to B in proceeding in this way.
[52] Fourth, the overall amount of court time will unlikely be increased if there are two trials. Each case would involve allegations from a single complainant. It appears that the trial on the allegations involving T may involve one or two more witnesses, but it is unlikely that witnesses will have to testify twice. There is also no issue about any delay. If two trials are ordered, R.K. is prepared to waive his s. 11(b) right to be tried within a reasonable time if severance causes a delay in scheduling two trials instead of one.
[53] Fifth, R.K.’s assertion that he will testify on the count involving T but not on the counts involving B is objectively reasonable and not just a mere assertion. There is a basis for this claim in the evidence. The allegations are 20 years apart. Obviously, T and R.K. will have fresher memories of their contact during the 2017 school year and R.K. will likely have a stronger recall of these events in defending himself against these allegations. In contrast, the defence strategy in defending against B’s allegations may involve simply challenging the reliability of her evidence given the passage of time.
[54] Sixth, while both trials will involve an assessment of the respective complainant’s credibility, for the reasons outlined above in my decision on the similar fact application, I do not view the counts as having a similar legal or factual nexus. There are at least three differences. First, the allegations involving B include touching while T’s allegations do not. Second, the allegations made by T suggest an established relationship between the parties while B’s allegations suggest that the sexual assaults took place on two separate occasions without any history between her and R.K. Finally, the Crown may call other witnesses and introduce text messages to support the count involving T but, as I see it, no such witnesses or text messages exist in the evidence involving B’s allegations.
(v) Balancing the Factors and Assessing the Interests of Justice
[55] I have considered all of the factors set out in the jurisprudence. I find two factors to carry substantial weight in the overall balance. First, the dismissal of the Crown’s similar fact evidence application is significant. In many cases, a ruling allowing similar fact evidence will favour a joint trial since the evidence on all incidents would have to be introduced in any event. In this case, the Crown’s similar fact evidence application fails. Second, there is an objective basis for R.K.’s stated desire to testify on the count involving T but not on the counts involving B. The Court of Appeal for Ontario has held that an accused’s asserted desire to testify on one or more counts but not on another or others is accorded substantial weight in the severance analysis: see Durant, at para. 75.
(vi) Conclusion on Severance Application
[56] For all of the reasons provided above, I find that R.K. has demonstrated on a balance of probabilities that the severance of Count 1 from Counts 2 and 3 is required in the interests of justice. The severance application is granted.
E. Conclusion
[57] The Crown’s application to admit the evidence of T and B as similar fact evidence on all counts is dismissed.
[58] R.K.'s application to sever the counts is granted. Count 1 will be severed from Counts 2 and 3.
[59] The trial date is scheduled for September 2020. In light of my rulings, counsel are encouraged to schedule a further pre-trial with Durno J. through the trial coordinator to discuss the implications of this ruling and which trial should proceed first. I refer counsel to the Superior Court of Justice COVID-19 practice directions in making arrangements to schedule a further pretrial.
“Original signed by Justice Coroza”
Coroza J.
Released: April 24, 2020
COURT FILE NO.: CR-18-1380 DATE: 2020 04 24 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent - and - R.K. Applicant REASONS JUDGMENT COROZA J. Released: April 24, 2020