R. v. Last

91 O.R. (3d) 561

Court of Appeal for Ontario,

Feldman, Lang and Juriansz JJ.A.

August 21, 2008

Criminal law -- Sentence -- Totality -- Accused sentenced to total sentence of 22.5 years (after getting credit of 4.5 years for pre-sentence custody) -- Accused receiving 17 years' imprisonment for aggravated sexual assault and overcoming resistance by choking arising out of one brutal sexual assault and to ten years' consecutive for sexual assault with weapon and overcoming resistance by choking involving another victim a month after the first offence -- Accused being 19 at time of offences -- Accused having antisocial personality disorder, showing no remorse and denying need for treatment -- Combined effect of sentences at high end of range but not offending totality principle.

Criminal law -- Trial -- Severance of counts -- Accused charged with offences arising out of two brutal sexual assaults committed against two complainants five weeks apart -- Trial judge not erring in dismissing accused's motion to sever counts -- Trial judge's ruling not resulting in injustice as jury instructed not to use evidence from one set of counts to conclude that accused would have committed offences in other set of counts.

Criminal law -- Trial -- Charge to jury -- Propensity evidence -- Accused convicted of offences arising out of two brutal sexual assaults committed against two complainants -- Trial judge not giving specific propensity instruction but clearly instructing jury not to use evidence on one set of counts to conclude that accused would have committed other set of offences -- Instruction adequate.

The accused was convicted of one count of sexual assault with a handgun, one count of aggravated sexual assault, two counts of overcoming resistance by choking and two counts of breach of recognizance. All of the charges, apart from the breach of recognizance charges, arose from two sexual assaults. The accused created an opportunity to be alone with M and then threatened her with a gun, repeatedly sexually assaulted her vaginally and anally, and choked her. Approximately five weeks later, the accused visited A, whom he had never met, in the company of a friend of A's. He stayed behind in A's apartment when the friend left, and then hit A on the forehead with a tea mug and choked her into unconsciousness. When she regained consciousness, she suffered a seizure. After she recovered from the seizure, she sought help at her superintendent's apartment, identifying her attacker as a friend of a friend. She suffered extensive injuries consistent with a violent attack that included vaginal and anal assaults. The accused, who was 19 years old at the time of the offences, was sentenced to 22.5 years' imprisonment after being granted a credit of 4.5 years for pre-trial custody. He appealed the convictions and the sentence.

Held, the appeal should be dismissed.

Per Lang J.A. (Feldman J.A. concurring): The trial judge did not err in refusing to sever the counts. He found that there was a nexus in time between the two sets of charges. It was his view that any potential risk of prejudice to the accused could be addressed by clear instructions to the jury. He noted the lack of complexity presented by the case, the unlikelihood of inconsistent verdicts, the vague reference by defence counsel to the accused's intention to testify and the purpose of [page562] joining counts to avoid a multiplicity of proceedings. The trial judge did not act unjudicially. It would be an error to over-emphasize general prejudice and intention to testify to the virtual exclusion of the other factors. If potential prejudice and potential testimony by the accused are the dominant factors in determining severance motions, such motions would be routinely granted in a myriad of other cases, and the result would be an effective reversal of the current burden of proof on the accused to establish the need for severance. The trial judge's ruling did not result in an injustice, as his charge to the jury adequately instructed the jury against impermissible reasoning.

While the trial judge did not give the jury a specific propensity instruction, he told the jury in clear language not to use the evidence (or a finding of guilt) on one set of counts to conclude that the accused would have committed the assault in the other set of counts. The jury would have been left in no doubt that they were required to completely isolate the two sets of counts and to apply the presumption of innocence to each set.

While the combined sentence imposed by the trial judge fell at the high end of the appropriate range, the sentence did not offend the principle of totality because it did not exceed the accused's overall culpability for the offences. The accused showed no remorse, had an antisocial personality disorder which was difficult to treat and did not accept the need for treatment. He was at risk of reoffending. The trial judge did not fail to take into account the accused's prospects for rehabilitation.

Per Juriansz J.A. (dissenting): The trial judge erred in dismissing the motion to sever the counts. He gave insufficient weight to the serious risk that there would be substantial prejudice to the accused and insufficient weight to the possibility that the accused might wish to testify in one case and not the other. At the same time, he placed too much weight on countervailing factors in favour of trying the counts together, particularly on the tenuous nexus between the counts. The ruling resulted in injustice. Given the real risk of prejudice to the accused, it was essential that the trial judge, if he chose not to sever, deliver a strong limiting instruction to minimize that risk. While the trial judge instructed the jury repeatedly that the evidence on one set of charges could not be considered in relation to the other set of charges, he did not warn the jury against impermissible propensity reasoning. In addition, he failed to instruct the jury that they could not use the testimony of one complainant to bolster the credibility of the other.

APPEAL by the accused from a conviction entered on March 16, 2005 and a sentence imposed on February 24, 2006 by Killeen J., sitting with a jury.

Cases referred to R. v. M. (B.) (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1, [1998] O.J. No. 4359, 115 O.A.C. 117, 130 C.C.C. (3d) 353, 21 C.R. (5th) 324, 40 W.C.B. (2d) 116 (C.A.); R. v. S. (F.), 1995 CanLII 8951 (ON CA), [1995] O.J. No. 2413, 83 O.A.C. 76, 28 W.C.B. (2d) 134 (C.A.); R. v. Thomas (2004), 2004 CanLII 33987 (ON CA), 72 O.R. (3d) 401, [2004] O.J. No. 4158, 191 O.A.C. 144, 190 C.C.C. (3d) 31, 26 C.R. (6th) 274, 63 W.C.B. (2d) 404 (C.A.), distd Other cases referred to R. v. A. (B.), [2008] O.J. No. 2739, 2008 ONCA 556, 238 O.A.C. 198; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82, 166 D.L.R. (4th) 296, 232 N.R. 317, [1999] 5 W.W.R. 545, J.E. 98-2397, 114 B.C.A.C. 1, 58 B.C.L.R. (3d) 18, 129 C.C.C. (3d) 321, 20 C.R. (5th) 1, 40 W.C.B. (2d) 196; R. v. C. (N.P.) (2007), 86 O.R. (3d) 571, [2007] O.J. No. 2444, 2007 ONCA 457, 225 O.A.C. 89, 222 C.C.C. (3d) 559, 74 W.C.B. (2d) 741; R. v. Craig, [1996] O.J. No. 1504 (C.A.); R. v. C. (D.A.), 1997 CanLII 397 (SCC), [1997] 1 S.C.R. 8, [1997] S.C.J. No. 4, 208 N.R. 303, 86 B.C.A.C. 81, 112 C.C.C. (3d) 96, 5 C.R. (5th) 362, 33 W.C.B. (2d) 192, affg 1996 CanLII 8341 (BC CA), [1996] B.C.J. No. 583, 72 B.C.A.C. 227, 106 C.C.C. (3d) 28, 30 W.C.B. (2d) 372; R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, [1989] S.C.J. No. 82, 97 N.R. 321, [1989] 6 W.W.R. 501, J.E. 89-1190, 39 B.C.L.R. (2d) 273, 50 C.C.C. (3d) 142, 71 C.R. (3d) 1; [page563] R. v. E. (L.), 1994 CanLII 1785 (ON CA), [1994] O.J. No. 2641, 75 O.A.C. 244, 94 C.C.C. (3d) 228, 25 W.C.B. (2d) 390 (C.A.); R. v. Handy (2002), 61 O.R. (3d) 414, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57, 2002 SCC 56, 213 D.L.R. (4th) 385, 290 N.R. 1, J.E. 2002-1226, 160 O.A.C. 201, 164 C.C.C. (3d) 481, 1 C.R. (6th) 203, 53 W.C.B. (2d) 286; R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, 143 D.L.R. (4th) 433, 207 N.R. 246, J.E. 97-457, 157 N.S.R. (2d) 161, 113 C.C.C. (3d) 1, 4 C.R. (5th) 280, 33 W.C.B. (2d) 348; R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, [1993] S.C.J. No. 127, 161 N.R. 161, J.E. 93-1895, 14 Alta. L.R. (3d) 1, 145 A.R. 321, 86 C.C.C. (3d) 97, 25 C.R. (4th) 137, 21 W.C.B. (2d) 369; R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 194 N.R. 321, J.E. 96-671, 73 B.C.A.C. 81, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269, 30 W.C.B. (2d) 200; R. v. Pontello, 1977 CanLII 2056 (ON CA), [1977] O.J. No. 1625, 38 C.C.C. (2d) 262, 2 W.C.B. 75 (C.A.); R. v. Rollocks (1994), 1994 CanLII 8728 (ON CA), 19 O.R. (3d) 448, [1994] O.J. No. 1458, 72 O.A.C. 269, 91 C.C.C. (3d) 193, 30 C.R. (4th) 293, 24 W.C.B. (2d) 281 (C.A.); R. v. Rose, 1997 CanLII 2231 (ON CA), [1997] O.J. No. 1947, 100 O.A.C. 67, 34 W.C.B. (2d) 503 (C.A.); R. v. S. (E.), 2000 CanLII 3240 (ON CA), [2000] O.J. No. 405, 129 O.A.C. 146, 45 W.C.B. (2d) 324 (C.A.) [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 310]; R. v. Samkov, [2008] O.J. No. 1005, 2008 ONCA 192, 78 W.C.B. (2d) 278; R. v. Savoury, 2005 CanLII 25884 (ON CA), [2005] O.J. No. 3112, 201 O.A.C. 40, 200 C.C.C. (3d) 94, 31 C.R. (6th) 1, 66 W.C.B. (2d) 598 (C.A.); R. v. Schultz, [1987] B.C.J. No. 1970 (C.A.); R. v. Starr, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 2000 SCC 40, 190 D.L.R. (4th) 591, 258 N.R. 250, [2000] 11 W.W.R. 1, J.E. 2000-1848, 148 Man. R. (2d) 161, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1, 47 W.C.B. (2d) 250; R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641, [1997] O.J. No. 3579, 103 O.A.C. 15, 117 C.C.C. (3d) 481, 14 C.R. (5th) 116, 35 W.C.B. (2d) 464 (C.A.); R. v. Vincent, [1998] O.J. No. 3666, 39 W.C.B. (2d) 488 (C.A.) [Application for leave to appeal to S.C.C. discontinued [1999] S.C.C.A. No. 39]; R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277, J.E. 91-603, 46 O.A.C. 352, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, 12 W.C.B. (2d) 551 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 591(1), (3), (a), 718.2 [as am.]

Clayton C. Ruby and Sarah Loosemore, for appellant. Lisa Joyal, for respondent.

LANG J.A. (FELDMAN J.A. concurring): -- I. Introduction

[1] The appellant appeals from his convictions and sentence arising from a jury trial presided over by Killeen J. The appellant was convicted of one count of sexual assault with a weapon (a handgun), one count of aggravated sexual assault, two counts of overcoming resistance by choking and two counts of breach of undertaking. All counts in the indictment, other than the counts relating to breach of undertaking, arose from alleged sexual assaults against S.M. and M.A. The trial judge sentenced the appellant, who was 19 years of age at the time of the offences, to [page564] 22.5 years' imprisonment, after granting a 4.5-year credit for pre-trial custody, resulting in an effective global sentence of 27 years.

[2] The conviction appeal rests on four grounds. The appellant argues that the trial judge erred in the following respects: first, in dismissing the appellant's motion to sever the counts; second, in failing to give the jury a propensity instruction; third, in failing to instruct the jury regarding prior consistent statements; and fourth, in improperly instructing the jury regarding the presumption of innocence and the burden of proof. The sentence appeal challenges the sentence as demonstrably unfit and based on an error in principle.

[3] For the reasons that follow, I would dismiss the appeals. II. Background

The facts

[4] The appellant was charged with sexually assaulting S.M. on September 27, 2003, the day of S.M.'s 19th birthday. The appellant and S.M. first met the previous day. On the day of the assault, the appellant accepted S.M.'s invitation to join [her] at a club. A friend of S.M. offered S.M. and the appellant a ride from the club. When they arrived at the appellant's home, S.M. announced that she would not accompany the appellant. However, the appellant was insistent and would not leave the car. In order not to inconvenience her friend, S.M. accompanied the appellant, but with the intention of calling a taxi from the appellant's home. Once inside the home, according to S.M., the appellant threatened her with a gun and repeatedly sexually assaulted her in various ways, including both vaginally and anally. S.M. testified that, during the attack, the appellant choked her on several occasions and she repeatedly lost consciousness. S.M. eventually escaped.

[5] While her sister noticed red marks on S.M.'s neck the next morning, there were no visible injuries when S.M. attended at the hospital two days later. In addition to S.M.'s evidence, another witness testified that she had seen the appellant with a gun on three other occasions. The appellant testified to consensual sex with S.M. and denied owning a gun.

[6] The other sexual assault charges relate to M.A., who testified that she had not met the appellant before the events of October 29, 2003. On that evening, a friend came to M.A.'s apartment in the company of the appellant, whom the friend said she was dating. When the friend left to go to a bar, the appellant waited at M.A.'s apartment, allegedly because he did not have money to go to the bar. M.A. testified that, soon after her friend's departure, [page565] the appellant suddenly hit her in the forehead with her empty tea mug and then choked her into unconsciousness. When she regained consciousness, M.A. suffered a seizure. After she recovered from the seizure, she realized she was naked and bloody and sought help at her superintendents' apartment. She identified her attacker to her superintendents as a friend of a friend. M.A. suffered extensive injuries consistent with an extremely violent and callous attack that included vaginal and anal assaults.

[7] The time frame for the appellant's opportunity to assault M.A. was approximately 20 minutes, based upon cell phone records. In one call between M.A.'s friend and the appellant, the friend enquired about M.A.'s whereabouts. The appellant responded that M.A. had been on the telephone with a man who was going to come to her apartment and it was for this reason that the appellant had left her apartment.

[8] The appellant testified at trial. He denied the assault and explained that he had left M.A.'s apartment because she was expecting another man. There was no physical evidence linking the appellant to the assault on M.A. The defence argued that the trauma of the assault and her injuries rendered M.A.'s memory unreliable. The defence also argued that the perpetrator was her ex-boyfriend, whom M.A. had seen earlier in the evening. As well, the defence pointed to the brief 20-minute window of opportunity, the absence of the appellant's DNA at the scene, the inadequacies of the police investigation and the lack of blood on the appellant's clothes. The defence argued that these factors belied the appellant's involvement in the attack. III. Analysis

Conviction Appeal

[9] I will deal with each of the grounds of appeal in turn, incorporating into my discussion the trial judge's rulings or jury instructions regarding each issue. 1. Did the trial judge err in refusing to sever the counts?

[10] Section 591(1) of the Criminal Code, R.S.C. 1985, c. C- 46 empowers the Crown to include a number of offences in an indictment. Thus, the premise is that counts included in an indictment will be tried together, absent severance. Section 591(3) of the Code provides that the court "may" sever counts "where it is satisfied that the interests of justice so require". It is evident from the submissions on the severance motion, and from the trial judge's ruling, that he was alive to these provisions of the Code. [page566]

[11] In his five-page ruling, the trial judge recognized the burden on the appellant to persuade him that severance was in the interests of justice on a balance of probabilities. He considered R. v. E. (L.), 1994 CanLII 1785 (ON CA), [1994] O.J. No. 2641, 94 C.C.C. (3d) 228 (C.A.), at p. 238 C.C.C., where Finlayson J.A. set out the applicable factors to be considered on a severance motion. These factors include general prejudice, the factual and legal nexus between the counts, the complexity of the evidence (a factor given less weight in a non-jury trial), the possibility of inconsistent verdicts, an intention of the accused to testify on one count as opposed to the other and the desire to avoid a multiplicity of proceedings. Counsel do not challenge these factors, nor the principle that no one factor is determinative; rather, all factors must be weighed to determine whether severance is in the "interests of justice".

[12] Applying those criteria to this case, the trial judge was not persuaded that a trial on all counts would prejudice the appellant because the trial judge could negate any potential prejudice by instructing the jury how to deal with the evidence. The trial judge expressed the view that juries "are capable of understanding clear instructions". As well, in considering the other relevant factors, the trial judge found a nexus between the two assaults, both of which were sexual in nature, on the basis that they occurred "roughly one month apart". The trial judge observed that the case was not complex, and that the possibility of inconsistent verdicts did "not loom large". He noted that the position advanced by the appellant's trial counsel regarding the appellant's intention to testify "was taken so vaguely as not to constitute a significant factor". Finally, he observed that the avoidance of a multiplicity of proceedings favoured a dismissal of the motion.

[13] After noting the "rather open-ended criteria" for severance, the trial judge concluded that the appellant had not met the onus to establish his case for severance. Accordingly, the trial judge dismissed the motion.

[14] The test on appellate review of a severance ruling was set out in R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, [1993] S.C.J. No. 127, 86 C.C.C. (3d) 97, at p. 254 S.C.R., pp. 113-14 C.C.C., where Iacobucci J. recognized that the broad criteria of the test for severance give a trial judge a "great deal of discretion". In reviewing such an exercise of discretion, Iacobucci J. instructed that appellate interference is only permissible where "the issuing judge acted unjudicially" or "the ruling resulted in an injustice". As I will explain, in my view, the trial judge in this case did not act unjudicially, nor did his ruling result in an injustice. [page567] (a) Did the trial judge act unjudicially?

[15] The trial judge correctly recited the law. He took into account all relevant factors and did not consider irrelevant factors. His reasons reflect a reasonable balancing of those factors. Accordingly, in my view, he acted judicially.

[16] On the factor of the nexus between the counts, the trial judge specifically referred to the approximately five-week period between the two assaults and found a nexus in time between the two sets of charges. He was also alive to the Crown's position that it would not be relying on any similar act evidence.

[17] As well, the trial judge was cognizant that the nexus between the counts had to be weighed with the other factors, particularly the potential prejudice to the appellant.

[18] The trial judge's concern about prejudice is evident both in his discussions with counsel in the course of submissions and in his reasons. It was his view, at that juncture in the proceedings, that any potential risk of prejudice could be addressed by clear instructions to the jury. He explained his reasoning in his ruling:

As to general prejudice, I am not persuaded that, at trial, the question of prejudice will be a significant factor at all. I, as the trial judge, have the duty to instruct the jury on how to deal with the evidence on the two sets of counts, and that is not a difficult matter in my view. Modern juries, whatever the case was in the past, are well educated, and are capable of understanding clear instructions. Judges are required to give clear instructions and, as it seems to me, a modern jury should be able to handle the instructions given by me to avoid any meaningful possibility of prejudice.

[19] Regarding the other factors, the trial judge noted the lack of complexity presented by the case, the unlikelihood of inconsistent verdicts, the vague reference by counsel to the appellant's intention to testify and the purpose of joining counts to avoid a multiplicity of proceedings.

[20] In arriving at the decision to refuse severance, the trial judge saw "no reason in principle" to sever the counts. In other words, defence counsel failed to persuade the trial judge that severance was required on the applicable standard of a balance of probabilities.

[21] My colleague, Juriansz J.A., takes the view that the trial judge gave insufficient weight to the factors of potential prejudice and the appellant's intention to testify on one set of counts.

[22] In support of his position that the trial judge failed to adequately weigh the potential prejudice, Juriansz J.A. refers to three decisions of this court overturning dismissals of severance motions. However, in my view, those decisions are distinguishable from the facts of this case. [page568]

[23] The first of those cases is R. v. S. (F.), 1995 CanLII 8951 (ON CA), [1995] O.J. No. 2413, 83 O.A.C. 76 (C.A.), which involved alleged separate sexual assaults against a mother and her daughter. On appeal, this court was concerned about potential prejudice resulting from the trial of all the counts together. The concern was that, if the jury determined the mother was credible regarding the assault against her, the jury would also likely accept that the mother was credible regarding the charges respecting her six-year-old daughter. This was particularly important because much of the evidence regarding the charges involving the child was given by her mother. That case is quite different from this one, where the two complainants and two assaults are separate. Here, one complainant would not be testifying about any aspect of the assault against the other. Accordingly, in this case, unlike in S. (F.), the danger of cross-pollination on credibility assessments could be more readily controlled with an appropriate instruction to the jury.

[24] The second case that Juriansz J.A. refers to is R. v. Thomas (2004), 2004 CanLII 33987 (ON CA), 72 O.R. (3d) 401, [2004] O.J. No. 4158, 190 C.C.C. (3d) 31 (C.A.), where this court also concluded that the trial judge erred in dismissing a motion to sever. Thomas, which involved 14 complainants and similar act evidence, was considerably more complex than this case. As well, unlike this case, Thomas involved significantly different sexual acts in regard to two groups of complainants. This court upheld the convictions relating to a group of four of the complainants, but ordered a new trial for the group of 14 complainants. I note that there was no suggestion that the group of 14 should be further subdivided into separate trials for the counts relating to each of the complainants. Viewed in this light, I find Thomas of little assistance to the facts of this case.

[25] Finally, Juriansz J.A. relies on R. v. M. (B.) (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1, [1998] O.J. No. 4359, 130 C.C.C. (3d) 353 (C.A.). That case also involved very different circumstances. In particular, the indictment in that case included many counts of sexual assault against family members as well as two further counts alleging bestiality. This court observed that the bestiality charges were very different in kind from the alleged sexual assaults and that potential prejudice could result if the jury were influenced by the depravity of the bestiality conduct. Accordingly, the court was of the view that the bestiality counts ought to have been severed from the other counts.

[26] While the assault against M.A. was unquestionably more brutal physically, the assault against S.M. also involved significant violence, given both the gun threat and the act of choking. M.A. and S.M. both alleged that they were choked into unconsciousness and sexually assaulted anally and vaginally. Accordingly, the facts [page569] in one set of counts were unlikely, on their own, to inflame the jury regarding the other set of counts. In any event, the prejudice resulting from any potential cross-pollination in this case could be offset by a proper instruction to the jury.

[27] I also note that there are numerous decisions of this court refusing to interfere in a trial judge's exercise of discretion on the issue of severance: see, for example, R. v. S. (E.), 2000 CanLII 3240 (ON CA), [2000] O.J. No. 405, 129 O.A.C. 146 (C.A.), leave to appeal refused [2000] S.C.C.A. No. 310; R. v. Vincent, [1998] O.J. No. 3666, 39 W.C.B. (2d) 488 (C.A.), application for leave to appeal discontinued [1999] S.C.C.A. No. 39; R. v. Rose, 1997 CanLII 2231 (ON CA), [1997] O.J. No. 1947, 100 O.A.C. 67 (C.A.); and R. v. Rollocks (1994), 1994 CanLII 8728 (ON CA), 19 O.R. (3d) 448, [1994] O.J. No. 1458, 91 C.C.C. (3d) 193 (C.A.).

[28] Juriansz J.A. is also of the view that the trial judge gave insufficient weight to the information regarding the appellant's intention to testify, which was given to the court by the appellant's trial counsel during the severance argument. At that time, defence trial counsel did not say that the appellant intended to testify on one count but not the other. All she said was that it was more probable that he would have an intention to testify on the S.M. counts regarding whether the sexual activity was consensual. This was because the M.A. counts were, according to trial defence counsel, "more dependent on other evidence". She did not elaborate, but only argued that the counts should be separated so that the appellant could then decide whether to testify.

[29] In my view, the trial judge was entitled to categorize this position as "vague" and to accord it little weight.

[30] In any event, the appellant was likely to testify on the S.M. counts because his defence was that the sexual activity with S.M. was consensual. However, it was also likely that he would testify on the M.A. counts, since he admitted being in M.A.'s apartment on the night of the assault.

[31] While certainly not determinative, I observe the appellant never renewed his severance motion at any point during the trial and that, in the result, he testified regarding both sets of charges.

[32] Finally, but importantly, in my view, it would be an error to over-emphasize general prejudice and intention to testify to the virtual exclusion of the other factors. If potential prejudice and potential testimony by the accused are the dominant factors in determining severance motions, such motions would be routinely granted in a myriad of other cases, including, for example, cases involving multiple counts of break and enter or robbery. The result would be an effective reversal of the current burden of proof on the accused to establish the need for a severance. It could exponentially increase the number of trials before the [page570] courts, further overburden an already strained system of justice (including the legal aid system) and increase the burden for witnesses who would often be required to attend at multiple trials. It is incumbent on the trial judge to weigh all the factors, including the need to avoid an unnecessary multiplicity of proceedings.

[33] It is helpful to return to the Criminal Code requirement that the court decide a severance motion "in the interests of justice". The interests of justice include, but are not limited to, the interests of the accused.

[34] I conclude that there was nothing unjudicial in the trial judge's decision that the interests of justice did not mandate separate trials in the circumstances of this case. (b) Did the trial judge's ruling result in injustice?

[35] The appellant's secondary argument is that the severance ruling resulted in an injustice to his client. In my view, injustice would only result if the trial judge's charge failed to explain to the jury that the evidence relating to each event was to be considered separately.

[36] The prejudice argued by the appellant is the trial judge's failure to give an appropriate propensity instruction. This issue is raised as a separate ground of appeal and I will address it separately. As Charron J.A. observed in Rose, at para. 17, the issue of injustice requires consideration of the entire trial. In this case, that includes consideration of the substance of the charge, the absence of a request for a specific propensity instruction and the appellant's decision to testify without renewing his severance motion. It is sufficient at this point to observe that, in my view, the trial judge's charge to the jury adequately instructed the jury against impermissible reasoning.

[37] I conclude on this issue that the experienced trial judge made no error in dismissing the appellant's severance motion. He applied the correct principles, was cognizant of all the relevant factors, considered counsel's lengthy submissions and explained why he dismissed the severance motion. I see no basis upon which to interfere with his exercise of discretion. 2. Did the trial judge err in failing to instruct the jury regarding propensity reasoning?

[38] In his charge to the jury, the trial judge correctly and repeatedly explained the meaning of the presumption of innocence and proof beyond a reasonable doubt. He also emphasized the importance of both principles. The trial judge fully explained to the jury at length their responsibilities under the three-step [page571] analysis in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 63 C.C.C. (3d) 397. While the trial judge did not specifically caution the jury against "propensity" reasoning, he clearly instructed the jury to keep the evidence on each set of counts separate.

[39] The appellant argues that the trial judge was obliged to instruct the jury that they could not use a finding of credibility or guilt on one set of charges to infer that the appellant was a bad person or the kind of person who would commit the crimes alleged in the other set of charges. [See Note 1 below] The appellant also argues that a similar warning was necessary in relation to the gun evidence in the S.M. case. In my view, reading the charge as a whole, the trial judge's instruction was sufficient to guard against impermissible propensity reasoning by the jury.

[40] In addition to charging the jury regarding the presumption of innocence, proof beyond a reasonable doubt and the W. (D.) requirements, the trial judge gave the following instruction:

You must segregate the evidence and examine it separately, that relating to [M.A.'s] case and you know what that was. [M.A.] says, I am innocently seated on a couch in my apartment and this man attacks me. You cannot use that evidence to infer guilt or to assist the case with respect to the other woman, and vice versa. It is as simple as that. It would be profoundly unfair to the accused if you did that.

So you must segregate the evidence with respect to each alleged victim. Look at it and see if it proves those offences but you cannot use it with respect to the other alleged victim's cases. All right, I know you will not do that, it would not be fair and it would not be proper. (Emphasis added)

[41] The trial judge immediately thereafter cautioned the jury that the appellant's criminal record could not be used to conclude that the appellant was more likely to be guilty of the charges he was facing:

I want you to clearly understand the limitations that you must put on that evidence during your deliberations, very important. You can only use the evidence of those convictions in assessing his credibility, the accused person's credibility as a witness in the witness box. You cannot use those prior convictions as evidence of guilt on any of these charges per se, only in weighing his credibility. [page572]

The theory of the law is that if an accused has been convicted of prior offences and testifies, those convictions can be brought out for the purpose of assessing his credibility as a witness, nothing more. You cannot infer from those that he was guilty on these charges before us today because of those prior convictions.

They may assist you or they may not assist you in deciding whether he is a truthful witness, that is for you to decide, but nothing more than that. The law assumes that they may be of assistance to a jury in assessing credibility of the accused but nothing more. You cannot draw any inferences of guilt on these charges from those prior convictions. Please remember that and honour that instruction. I know you will.

[42] Finally, the trial judge informed the jury that, if their recollections about the evidence differed from the trial judge's comments about the evidence, the jury should rely on their own recollections.

[43] A specific propensity instruction would have told the jury not to use a finding of guilt in relation to one of the assaults to decide that the appellant was the sort of person who would have committed the other assault. While the trial judge did not use the word "propensity", he explained to the jury in clear, comprehensible language not to use the evidence (or a finding of guilt) on one set of counts to conclude that the appellant would have committed the assault in the other set of counts. The jury would have been left in no doubt that they were required to completely isolate the two sets of counts and to apply the presumption of innocence to each set.

[44] Given the trial judge's instruction as a whole, including the charge regarding the use to be made of past convictions, the jury would have clearly understood that they were prohibited from inferring that the appellant was more likely to have committed an offence based on the other counts in the indictment, the gun evidence or the appellant's prior criminal acts. Thus, in my view, the trial judge's charge foreclosed any potential propensity reasoning. The trial judge made it abundantly clear that the two sets of charges were to be kept separate and, specifically, that the evidence from one set of charges could not be used "to infer guilt or to assist the case" on the other set of charges. The jury would have understood from this that they could not use the fact of two complainants to bolster the credibility of one or both complainants. The jury would also have understood from the charge as a whole, including the instructions regarding past convictions, that a finding of guilt on one set of charges could not be used to infer guilt on the other.

[45] My colleague points out that, on one occasion in his charge, the trial judge misspoke and placed a gun in the M.A. assault. The trial judge also, on several occasions, misspoke [page573] M.A.'s name, confusing her name with a complainant in another trial. The jury would have understood these errors to be mere slips of the tongue.

[46] I also note that this jury undertook careful deliberations, from approximately 3:30 p.m. to 9:30 p.m. on the first day and during the whole of the next day, arriving at their verdict at 5:00 p.m. While deliberating, the jury asked only one question, which was specifically related to the S.M. counts. The jury gave no indication that they failed to understand the trial judge's instructions. It is also significant that trial defence counsel did not request a propensity instruction either before or after the charge, presumably because counsel considered that the charge fairly and adequately set forth the necessary caution for the jury.

[47] On the specific issue of the gun evidence, it would have been clear to the jury, based on the manner in which the evidence was called and discussed at trial, that the gun evidence related only to the S.M. charges. Moreover, the trial judge's instructions to keep the evidence separate would have served to forestall any risk that the jury would have improperly used the gun evidence.

[48] In addition, the evidence about the appellant possessing a gun was significantly less serious than the conduct with which the appellant was charged. It has been held that the risk of propensity reasoning decreases where the evidence of the accused's misconduct is of a different nature than the conduct charged: R. v. C. (N.P.) (2007), 2007 ONCA 457, 86 O.R. (3d) 571, [2007] O.J. No. 2444, 222 C.C.C. (3d) 559 (C.A.). Here, the primary focus of the trial was on the separate sexual assaults and choking conduct, not on the appellant's possession of a gun. In these circumstances, it is not realistic to assume that the jury would have engaged in propensity reasoning or would have sought to punish the appellant based on the evidence that, at one point, he had a gun.

[49] As I indicated earlier, trial defence counsel did not request the limiting instructions raised on appeal and made no objection to their absence from the charge to the jury. While trial counsel's failure to do so is not determinative, it provides some indication that further instructions were not thought necessary at the time to ensure a fair trial and that the instructions given by the trial judge caused no prejudice to the appellant: see R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, 113 C.C.C. (3d) 1. 3. Did the trial judge err regarding the use of prior consistent statements?

[50] At trial, M.A. identified the appellant, the visitor who came with her friend, as her attacker. She also testified that it [page574] had been hard for her at the preliminary inquiry to "see the person that had hurt me so badly" and that she was "100 per cent certain who hurt me". As well, at trial, M.A. and one of her superintendents testified that, when M.A. sought help on the night of the attack, she told her superintendents that her attacker was a friend of her friend and she named the friend.

[51] In discussion of this evidence during the pre-charge conference, Crown counsel did not ask that the jury be told that the evidence was admissible for the truth of its contents. However, the evidence took on more significance after counsel's submissions to the jury. In closing, trial defence counsel attacked the reliability of M.A.'s identification on the basis of the extensive trauma she suffered. In response, the trial Crown counsel told the jury: "[M.A.] tells [the superintendent] right way, friend of a friend. She tells the police, she tells [the examining nurse] details, she tells the preliminary inquiry and she testifies at trial, and never once does she shift on who done it."

[52] The defence did not object to this response by Crown counsel and made no request for a particular instruction. The trial judge made no reference to the matter in his charge, and neither counsel raised the issue. On appeal, the appellant argues both that the appellant was prejudiced by the trial judge's failure to instruct the jury regarding the limited purpose of M.A.'s prior consistent identifications and by Crown counsel's overstatement of the prior identifications.

[53] I do not agree with the appellant's counsel that the prior consistent identifications could not be used to assess M.A.'s identification of the appellant as her attacker. In R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641, [1997] O.J. No. 3579, 117 C.C.C. (3d) 481 (C.A.), Doherty J.A. discussed the admissibility and relevance of prior consistent identifications, at para. 37:

If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment. (Footnote omitted) See also R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 147 C.C.C. (3d) 449, at para. 221.

[54] While the appellant's identity was not an issue at trial in the traditional sense (since it was common ground that the appellant had been alone with M.A. in her apartment before the [page575] attack), the reliability of M.A.'s identification of the appellant was challenged. It was challenged both on the basis of M.A.'s trauma and on the basis of her evidence that her attacker, from the "look in his eyes", "looked like a different person". In my view, in these circumstances, the prior consistent identification evidence was admissible to assist the jury in assessing the reliability of M.A.'s identification of the appellant as her attacker in accordance with the principle in Tat: see also R. v. A. (B.), [2008] O.J. No. 2739, 2008 ONCA 556.

[55] Moreover, the absence of an explicit instruction about this evidence did not prejudice the defence and may have inured to its benefit. In any event, it would have been very evident to the jury in this uncomplicated trial that a central issue was the effect of M.A.'s injuries on the reliability of her post-assault identification. The jury would have exercised its common sense to consider the whole of the evidence in determining what weight to give to M.A.'s identification.

[56] The appellant also takes issue with trial Crown counsel's closing reference to M.A.'s identification of the appellant to the police, to the nurse and at the preliminary inquiry. Regarding the preliminary inquiry, M.A. testified at trial about encountering the appellant, whom she described as her attacker, at the preliminary inquiry. Although she did not specifically testify at trial about her preliminary inquiry evidence, it was a reasonable inference from her trial evidence about the preliminary inquiry that she identified the appellant at that time. Crown counsel did not mislead the jury in her reference to that evidence.

[57] Neither was the reference to the police misleading. Police officers testified at trial that, after the attacks, M.A. told them that her named friend knew the identity of her assailant.

[58] The trial Crown did err in referring to M.A.'s identification to the nurse, since that identification was not part of the trial evidence. However, this reference resulted in no prejudice to the appellant because it added nothing to M.A.'s identifications immediately after the attack to her superintendents and to the police. In addition, the trial judge explicitly told the jury in his charge to depend on their recollection of the evidence rather than on that of counsel and to exercise their common sense.

[59] I would not give effect to this ground of appeal. 4. Did the trial judge improperly instruct the jury on their duty as the triers of fact?

[60] The appellant argues that the trial judge improperly left the jury with the impression that they were required to determine the truth about the events in question and were required to [page576] choose between the complainants' and the appellant's versions of the events. The appellant refers to a passage in the trial judge's charge where he instructed the jury to review the evidence to help decide "what are the important issues in this case and what are the important pieces of evidence upon which your findings will be made as to what really happened in these two incidents". The appellant also refers to another statement by the trial judge where he told the jury they were chosen "because it is expected that you will be able to determine what the truth of this case is from your careful deliberations". In addition, when the trial judge suggested guidelines to assess the evidence, such as the manner of the witnesses' testimony and the background facts underlying the evidence, he noted that, since there were conflicts in the testimony, the jury was required to "resolve those by using those guidelines and any that you think are better . . .".

[61] The challenged extracts are merely isolated passages. A parsing of the charge ignores the complete, repeated and unchallenged instructions by the trial judge regarding the presumption of innocence, the burden of proof and the W. (D.) requirements. The trial judge's instructions on these issues were careful and correct. They would have left the jury with no doubt about the proper methodology to apply to their task. As Cory J. wrote for the majority in W. (D.), at p. 758 S.C.R., pp. 409-10 C.C.C., "[w]here an error is made in the instruction on the burden of proof, the fact that the trial judge correctly instructed on that issue elsewhere in the charge is a strong indication that the jury were not left in doubt as to the burden resting on the Crown".

[62] I would not give effect to this ground of appeal.

Sentence appeal

[63] The appellant argues that the global sentence was demonstrably unfit and offended the principle of totality. He also argues that the trial judge erred in principle in failing to consider the appellant's prospects for rehabilitation.

[64] The trial judge sentenced the appellant to 17 years' imprisonment, less four and a half years of pre-trial custody, for the aggravated sexual assault and overcoming resistance by choking of M.A. He sentenced the appellant to an additional ten years for the offences of sexual assault with a weapon and overcoming resistance by choking of S.M. In addition, the trial judge imposed a sentence of one month each for the two breaches of undertaking, to be served concurrent to each other and to the other sentences.

[65] At the time of the offences, the appellant was 19 years old with an unrelated and relatively minor criminal record. The trial [page577] judge determined that the appellant had some prospect of rehabilitation. The appellant argues that, in these circumstances, the combined sentence of 27 years offended the principle of totality and ignored his prospects for rehabilitation. He proposes a sentence of ten years in relation to the assault on M.A. and five years in relation to the assault on S.M.

[66] At the time of sentencing, the trial judge had dismissed the Crown's dangerous offender application because he rejected the expert opinion given on behalf of the Crown that the appellant was a sexual sadist and psychopath. Instead, the trial judge accepted that the appellant suffered from antisocial personality disorder that was treatable on a reasonable possibility standard. In his admittedly brief sentencing reasons, the trial judge noted that the crimes against M.A. resembled cases where life imprisonment was imposed for a grave single instance of sexual assault. In imposing a 17-year sentence, he noted the principles of proportionality, denunciation and deterrence. He refused to impose a concurrent sentence for the crimes in regard to S.M., noting that to do so would "make a mockery of our sentencing laws" because the convictions related to separate crimes committed at different times.

[67] The appellant does not take issue with the imposition of a consecutive sentence, which he acknowledges was open to the trial judge to impose, because the offences did not arise out of the same transaction, but rather were committed on separate occasions.

[68] However, the appellant argues that the combined sentences offended the totality principle set out in s. 718.2 of the Criminal Code, which states that "where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh".

[69] In my view, while the combined sentence imposed by the trial judge fell at the high end of the appropriate range, the sentence did not offend the principle of totality because it did not exceed the appellant's overall culpability for the offences. The sentence could not be said to be outside a range that was other than just and appropriate in light of the callous circumstances of the offences and the lack of remorse shown by the appellant. See also R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 105 C.C.C. (3d) 327.

[70] Both sets of offences were unprovoked, extremely violent and demonstrated complete disregard for the victims. In both instances, the appellant created opportunities to be alone with each of the women, whom he had just met. The appellant choked both women into unconsciousness and left M.A. alone while she was unconscious and bleeding from the head. The M.A. assault took place in the "security" of her home. The S.M. assault included [page578] coercion with the use of a gun. Both victims suffered greatly, although undoubtedly the increased violence against the second victim, M.A., was more significant.

[71] There was no explanation for the appellant's conduct and a virtual absence of mitigating circumstances apart from his relative youth and the absence of significant earlier sentences of imprisonment. The appellant showed neither remorse for his crimes nor acceptance of any need for treatment. In addition, the antisocial personality disorder from which he suffers is difficult to treat. He is at risk of re-offending.

[72] While it is difficult to compare sentences in the disparate circumstances of offences and offenders, the individual sentences imposed by the trial judge did not exceed those imposed in other situations, as evidenced by many of the cases cited in counsels' sentencing charts. In addition to those cases, I note the life sentence imposed in R. v. Schultz, [1987] B.C.J. No. 1970 (C.A.) for two separate incidents of break and enter and sadistic sexual assaults against a 19-year- old and a 44-year-old woman, one of which involved the use of a knife. In the appellant's case, the Crown also sought a life sentence. Life sentences for serious sexual offences were also imposed in R. v. Craig, [1996] O.J. No. 1504 (C.A.) and R. v. Pontello, 1977 CanLII 2056 (ON CA), [1977] O.J. No. 1625, 38 C.C.C. (2d) 262 (C.A.).

[73] The sentence, although lengthy given the appellant's young age, need not be crushing because he may seek early release if he is found to benefit from treatment.

[74] Finally, I do not accept the appellant's submission that the trial judge failed to take into account the appellant's prospects for rehabilitation. The sentencing reasons, while brief, immediately followed the dangerous offender hearing. In his reasons on the dangerous offender application, the trial judge was not only alive to the appellant's prospects for rehabilitation, but they were a central focus of that hearing. The trial judge's sentencing reasons must be read in the context of his reasons in the dangerous offender application.

[75] While I would grant leave to appeal sentence, since I am not persuaded that the sentence was unfit, or that the trial judge erred in principle, I would dismiss the sentence appeal. IV. Conclusion

[76] In the result, I would dismiss both the conviction and sentence appeal.

[77] JURIANSZ J.A. (Dissenting): -- On March 16, 2005, a judge, sitting with a jury, convicted the appellant of six offences relating [page579] to separate sexual assaults against two female complainants, S.M. and M.A. The appellant brought a pre-trial application to have the counts related to S.M. severed from those related to M.A., but the trial judge denied the application. The trial judge also dismissed the Crown's dangerous offender application and sentenced the appellant to 22.5 years' imprisonment, crediting him with 4.5 years for 27 months of pre-trial custody.

[78] The appellant appeals the convictions and sentence. On the convictions appeal, he raises the following issues: (1) Did the trial judge err in dismissing the severance application? (2) Did the trial judge err in failing to properly instruct the jury not to engage in propensity reasoning, and more specifically, on the proper use of the gun evidence? (3) Did the Crown improperly rely on prior consistent statements in closing, and did the trial judge err by failing to correct this error in the charge to the jury? (4) Did the trial judge err by improperly instructing the jury that it was their task to determine the "truth" or "what really happened"?

[79] The appellant submits that these errors, whether taken alone or in combination, created an unfair trial and that the matter must be sent back for a new trial.

[80] On the sentence appeal, the appellant submits that the sentence was demonstrably unfit and contends that the trial judge erred in principle in failing to consider the appellant's prospects for rehabilitation.

[81] I would allow the appellant's appeal of his convictions on the basis that the trial judge erred in not allowing the severance application. Given my conclusion on this issue, it is unnecessary to deal with the other issues raised by the appellant. Background (1) Evidence relating to the offences against S.M.

[82] The appellant was charged with one count of sexual assault with a weapon (a hand gun), one count of overcoming resistance by choking and one count of breach of bail recognizance in relation to the attack against S.M.

[83] On September 26, 2003, the day before her 19th birthday, S.M. accompanied a friend to a barbershop where the appellant worked. S.M. found the appellant attractive and took [page580] his telephone number. She later called him and invited him to meet her at a club that night where she was going to celebrate her birthday. He accepted the invitation and joined her at the bar later that evening.

[84] At 2:15 a.m., S.M. left the club with a girlfriend, M.B., who was giving her a ride. The appellant asked for a ride to his house, and M.B. agreed. M.B. testified that it was her expectation that S.M. would get out with the appellant at his home.

[85] When they arrived at the appellant's home, M.B. testified that S.M. said she did not want to go with him anymore, but the appellant said he would not get out of the car unless S.M. accompanied him. At this point, it was already after 2:30 a.m., which was M.B.'s curfew. S.M. testified she got out of the car, intending to take a taxi home, to save M.B. from getting into trouble with her strict parents.

[86] S.M. testified that she went inside with the appellant to call a cab because it was raining. Once inside, the appellant asked her to come downstairs to use the phone because there were children upstairs. S.M. said she headed downstairs and kept walking because she was not getting a cell phone signal at first. While she was in the basement, she received a call from a friend.

[87] While she was on the phone, the appellant rubbed up against her. After the phone call ended but before she called a cab, the appellant pulled her down on the bed. She testified that when she stood up, insisting she had to leave, the appellant pulled out a gun from under the corner of his mattress. She said she tried to escape but the appellant grabbed her and put his hand over her mouth to stop her from screaming.

[88] S.M. testified that the appellant then put the gun to her head and choked her into unconsciousness. When she came to, he choked her two more times as she continued to resist.

[89] S.M. testified that after she regained consciousness, the appellant raped her vaginally and tried to force her into mutual oral sex. She said he then raped her again vaginally, and forced her onto her hands and knees and raped her anally. She testified that she finally escaped after the appellant fell asleep but, in the meantime, he forced her to engage in oral sex more than once.

[90] After escaping, S.M. went home and told her younger sister that she had gone home with a friend of M.B.'s and "the guy made her have sex with him and stuff". Her sister testified that she noticed red marks on her sister's neck around the collarbone.

[91] On the night of September 29, 2003, S.M. went to a hospital where she was examined and various swabs were taken. There were no injuries to any part of her body -- including her neck or genitals -- that were consistent with choking or sexual [page581] assault. S.M subsequently gave statements to police. The police did not make note of any visible injuries.

[92] In addition to S.M.'s evidence, the Crown called a witness who testified that she had seen the appellant with a gun on three occasions both before and after the events in question.

[93] The appellant testified that he had consensual sex with S.M. after she asked if she could come over to his place. According to the appellant, while they were lying on his bed, they started kissing each other. They then took off their clothing and engaged in consensual oral and vaginal sex. He said that he asked her if she had ever had anal sex, and she said no. She agreed to try it, but asked him to stop because it hurt, and he did. He denied owning a gun. (2) Evidence relating to the offences against M.A.

[94] The appellant was charged with one count of aggravated sexual assault, one count of overcoming resistance by choking and one count of breach of bail recognizance in relation to the sexual assault against M.A.

[95] In the early hours of October 29, 2003, M.A. was feeling tired and ill. Her friend S.K. called and said she wanted to bring over her new boyfriend. Even though M.A. was reluctant, she said yes when S.K. promised they would not stay long since they were on their way to a birthday party at a nearby bar.

[96] When S.K. and the appellant arrived at M.A.'s apartment, the three of them had tea. S.K. subsequently got a call from the friend having the birthday party. S.K. wanted to go to the party and encouraged the appellant to go with her. He said he did not want to go because he did not have any money and he did not like to go to a bar without money. He said that he would stay at the apartment and wait for S.K.

[97] After S.K. left for the party, the appellant went to the kitchen to get more tea. M.A. testified that, after returning from the kitchen, the appellant suddenly grabbed the empty ceramic mug that S.K. had been using and struck her with it right in the middle of her forehead.

[98] M.A.'s evidence was that the appellant then came towards her, grabbed her by the throat, and started to choke her hard with both of his hands until she lost consciousness. When she came to, she had a seizure. After the seizure ended, she noticed blood on her arms and face, and realized that she was naked. She grabbed a towel and then went to get out of her apartment to get help.

[99] M.A. testified that she noticed that her door was locked. She said that the dead bolt on her door could only be locked from [page582] the inside or from the outside with a key. When she had come home that evening, she had placed the keys on a small wooden bench by the door. She said that she never saw those keys again.

[100] She managed to get out and go to her superintendent's apartment, and told him and his wife that somebody had hit her over the head and choked her. She identified her attacker as a friend that S.K. had brought over.

[101] A medical examination revealed that M.A. had suffered extensive injuries, including significant bruising to her face, scalp, arm and neck, and a serious cut on her nose. She had three tears in her anal area, an abrasion on the hymeneal tissue of her vagina, which suggested that her vagina had been struck or manipulated so as to cause the outer layers of the hymen to tear away, and abrasions to her cervix consistent with a manufactured object having been inserted into the vagina.

[102] S.K. testified and her testimony confirmed M.A.'s version of events to the point of her departure for the party. S.K. estimated that she stayed at the party for about 20 minutes, and after leaving the bar, received a call from the appellant asking her to meet him at her place in ten minutes.

[103] After speaking to the appellant, she called M.A. but got no answer. She then went to M.A.'s apartment to check on her, but got no answer when she buzzed. She estimated that this was at around 1:45 or 2:00 a.m. S.K. said that she then called the appellant and asked him where M.A. was but he said that he did not know. He told S.K. that M.A. had been on the phone with some guy and he thought the guy was going to come over and so he left.

[104] S.K. returned home and the appellant arrived wearing the same clothes he had been in earlier. She noticed a small red mark on the left hip area of his white jersey, which she thought was lipstick. She asked him about the mark and he said it was already there. She said that he used the washroom and then left her house and did not return.

[105] The appellant also testified. He denied striking M.A. in the head with a mug, choking or assaulting her. He testified that shortly after S.K. left, M.A. told him there was a guy coming over, and so he left and called S.K. He told her he would meet her at her house. When S.K. called him back and asked him where M.A. was, he said that he did not know.

[106] He said he reached S.K.'s house around 2:15 or 2:20 a.m. He saw five people there, including S.K. and two guys he had had a "problem with the week before at that club". He went to the washroom and then told S.K. that he had to leave because he did not wish to associate them. [page583]

[107] There was no physical evidence linking the appellant to the crime against M.A. The police did not send the clothing he wore that night for forensic testing. His clothing worn on the night in question was not seized by police. No fingerprints were found on any items in M.A.'s apartment. Testing of fingernail scrapings and a penis swab from the appellant at the time of his arrest at approximately 1:00 a.m. on October 30, 2003 did not yield any DNA other than his own. None of the samples taken from M.A. yielded DNA other than her own. The Crown's theory was that the appellant sexually assaulted her using some kind of instrument.

[108] Defence counsel submitted that the complainant's memory was not reliable because she had suffered unconsciousness. Counsel sought to introduce M.A.'s ex-boyfriend as the perpetrator: he had keys to her apartment, and M.A. admitted she saw him on her way home that night and he was looking at her. She also testified that when they were dating, he was at times emotionally abusive and had pushed her.

[109] The defence also submitted that the confirmed timelines made it improbable that the appellant was the attacker, since there was not enough time to carry about the brutal attack. S.K.'s time of departure was confirmed to be about 1:45 a.m., and cell phone records confirmed that she spoke to the appellant by phone at 2:05 a.m. and at 2:13 a.m.

[110] Counsel also argued that had he carried out the attack, he would have had a lot of blood on his clothes when he showed up at S.K.'s place, which he did not. (3) Severance ruling and charge to the jury

[111] Section 591(3) of the Criminal Code gives the court the power to order that counts be severed where "the interests of justice so require":

591(3) The court may, where it is satisfied that the interests of justice so require, order (a) that the accused or defendant be tried separately on one or more of the counts;

[112] The trial judge recognized that the case law has attempted, over the years, to fashion some criteria for the exercise of the broad discretion granted by s. 591(3). He applied the factors stated by Finlayson J.A. in R. v. E. (L.), 1994 CanLII 1785 (ON CA), [1994] O.J. No. 2641, 94 C.C.C. (3d) 228 (C.A.), at p. 238 C.C.C.:

The relevant factors to be considered by a trial judge on a motion to grant severance are general prejudice and the factual and legal nexus between the counts (R. v. Simpson (1977), 1977 CanLII 1142 (ON CA), 35 C.C.C. (2d) 337 (Ont. C.A.)); the undue [page584] complexity of the evidence (R. v. Chamandy (1934), 1934 CanLII 130 (ON CA), 61 C.C.C. 224 (Ont. C.A.); R. v. McNamara (No. 1) (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.) (leave to appeal to the S.C.C. dismissed with three unrelated exceptions, 37 N.R. 85n)); the possibility of inconsistent verdicts; whether the accused intends to testify on one count but not another; and the desire to avoid a multiplicity of proceedings. The existence of a jury is not a specific factor, but the fact that there is not going to be a jury means that the consideration of complexity, and to a lesser extent prejudice, will not have the same weight.

[113] The trial judge found there was a nexus in time and place between the two sets of charges because "[t]he incidents giving rise to the charges only occurred roughly one month apart". He stated he was "not persuaded that, at trial, the question of prejudice will be a significant factor at all" given that the trial judge had the duty to instruct the jury on how to deal with the evidence on the two sets of counts. He observed that modern juries are well educated and capable of understanding clear instructions. He also found this was not a complex case, the possibility of inconsistent verdicts did not pose a problem and the question of multiplicity of proceedings favoured non-severance.

[114] Finally, the trial judge commented on defence counsel's submission that the accused might wish to testify on one set of counts but not the other. He refused to recognize this as a significant factor because "that point was taken so vaguely".

[115] The trial judge gave the jury clear instructions to keep the evidence on each of the sets of counts separate. He instructed the jury as follows:

Now, I want you to keep this in mind during your deliberations. The sets of charges, the two sets of charges, one set relating to [M.A.], one set relating to [S.M.], you cannot use the evidence on one set of those charges, as you assess the evidence on the other set of charges and vice versa. There is no overlap. You cannot use the evidence on the charges relating to [M.A.] when you are assessing the charges relating to [S.M.] and vice versa.

You must segregate the evidence and examine it separately, that relating to [M.A.'s] case and you know what that was. [M.A.] says, I am innocently seated on a couch in my apartment and this man attacks me. You cannot use that evidence to infer guilt or to assist the case with respect to the other woman, and vice versa. It is as simple as that. It would be profoundly unfair to the accused if you did that.

So you must segregate the evidence with respect to each alleged victim. Look at it and see if it proves those offences but you cannot use it with respect to the other alleged victim's cases. All right, I know you will not do that, it would not be fair and it would not be proper.

[116] The trial judge did not caution the jury against propensity reasoning. [page585] Analysis

Issue: Did the trial judge err in failing to sever the counts in respect of the two complainants? (1) Factors to consider in deciding a severance application

[117] The parties did not dispute the relevant factors to be considered in an application to sever counts on an indictment. They include: (a) The factual and legal nexus between the counts; (b) general prejudice to the accused person; (c) the undue complexity of the evidence; (d) whether the accused person wishes to testify on some counts, but not others; (e) the possibility of inconsistent verdicts; and (f) The desire to avoid a multiplicity of proceedings (i.e., administrative efficiency) See, for e.g., R. v. C. (D.A.), 1996 CanLII 8341 (BC CA), [1996] B.C.J. No. 583, 106 C.C.C. (3d) 28 (C.A.), at para. 9, affd 1997 CanLII 397 (SCC), [1997] 1 S.C.R. 8, [1997] S.C.J. No. 4, 112 C.C.C. (3d) 96.

[118] This list of factors supplies a structure to facilitate the application of the broad "interests of justice" test. No one factor is determinative. The weight of each factor must be assessed and their relative weight balanced with a view to determining whether severance is required in the interests of justice. (2) Appellate review of a severance decision

[119] A trial judge's decision to refuse an application for severance is deserving of great deference. The wording of s. 591(3)(a) of the Code makes clear that the exercise of the court's power is largely discretionary.

[120] The Supreme Court of Canada has commented on the broad and discretionary nature of the "interests of justice" standard. In R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, [1993] S.C.J. No. 127, 86 C.C.C. (3d) 97, at pp. 353-54 S.C.R., pp. 113-14 C.C.C., Iacobucci J. cautioned that an appellate court should only intervene in two situations:

The criteria for when a count should be divided or a severance granted are contained in ss. 590(3) and 591(3) of the Code. These criteria are very broad: [page586] the court must be satisfied that the ends or interests of justice require the order in question. Therefore, in the absence of stricter guidelines, making an order for the division or severance of counts requires the exercise of a great deal of discretion on the part of the issuing judge. The decisions of provincial appellate courts have held, and I agree, that an appellate court should not interfere with the issuing judge's exercise of discretion unless it is shown that the issuing judge acted unjudicially or that the ruling resulted in an injustice. (Emphasis added)

[121] As this passage indicates, the first ground on which an appellate court may intervene is where the judge acted unjudicially. This requires that the appeal court defer to the trial judge unless there is an error in principle, a failure to consider a germane factor, or an incorrect weighing of an appropriate factor. As Doherty J.A. explained in R. v. Savoury, 2005 CanLII 25884 (ON CA), [2005] O.J. No. 3112, 200 C.C.C. (3d) 94 (C.A.), at para. 26:

This court will interfere with the exercise of that discretion where the trial judge had failed to consider the relevant principles, or has considered an irrelevant principle. If the trial judge has erred in principle, it falls to this court to decide, according to the proper principles, whether severance should have been granted. Even if a trial judge has considered the relevant principles, this court will review the trial judge's exercise of her discretion against a reasonableness standard. As Laskin J.A. said in R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 at 54 (Ont. C.A.), when referring to a different discretionary decision:

The weighing of relevant factors, the balancing process is what the exercise of discretion is all about. To maintain deference to the trial judge's exercise of discretion, the weighing or balancing of relevant factors must be assessed against the reasonableness standard of review. Only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court interfere . . .

[122] Second, as indicated in the passage of Litchfield set out above, an appellate court may interfere with a severance ruling if it results in an injustice. There is an element of hindsight in this analysis. As Charron J.A., speaking for this court in R. v. Rose, 1997 CanLII 2231 (ON CA), [1997] O.J. No. 1947, 100 O.A.C. 67 (C.A.), explained, at para. 17:

In determining this issue, it is necessary to consider the entire trial, including the potential prejudicial effect of the evidence, the closing addresses of counsel, the judge's instructions to the jury and any inference that may be drawn from the ultimate verdicts returned by the jury. (3) Review of severance decision in this case

[123] In my view, it is appropriate to intervene on both grounds in this case: the trial judge acted unjudicially in failing to give appropriate weight to the relevant factors, and his failure to sever the two sets of counts resulted in an injustice. I discuss each basis for interfering with the trial judge's severance decision in turn. [page587] (a) Weighing of factors

[124] The Crown recognizes that a joint trial posed a potential risk of prejudice to the appellant. However, the Crown submits that the trial judge was entitled to find there was a nexus between the two sets of charges and he could address any potential prejudice by a proper instruction to the jury. The Crown also submits that it was open to the trial judge to find that the appellant's wish to testify on some but not all counts was "taken so vaguely as not to constitute a significant factor in this case".

[125] I turn to a weighing of the factors. (i) Nexus between the two sets of counts

[126] As noted, the trial judge found there was a nexus in time and place between the two sets of charges because the "incidents giving rise to the charges only occurred roughly one month apart".

[127] In my view, the nexus between the two sets of counts is exceedingly weak. Factually, the two cases involve different complainants. They occurred in different locations. They occurred approximately one month apart.

[128] Legally, both sets of counts relate to sexual assault, but they raise different legal issues. In the S.M. case, the legal issue was consent, and in the M.A. case the issue was identification.

[129] None of the evidence on one set of cases was relevant or admissible on the other. At trial, the Crown agreed that none of the evidence qualified as similar fact evidence. There were no common witnesses, except perhaps the police investigators, and so any economy achieved would be marginal.

[130] I conclude that the nature of the nexus between the counts in this case did not provide a reason why it was necessary, desirable or convenient to try the cases together. This factor should be given very little or no weight. (ii) Potential prejudice

[131] The trial judge noted "general prejudice" to the appellant but was satisfied it could be addressed through proper instruction to the jury. He did not specifically address the nature of the potential prejudice, except to note that the trial judge has a duty to instruct the jury on how to deal with the evidence on the two sets of counts.

[132] The nature of the potential prejudice in having all the charges tried together took several forms in this case. First, the appellant faced prejudice in the way the jury approached credibility issues. There was a danger that the fact there were two sets of charges involving two different complainants would bolster the [page588] credibility of one or both complainants. Why would two women, who did not know one another, both accuse the appellant of sexual assault?

[133] On the flip side, if the jury found the appellant not credible in regard to one set of counts it would be difficult for him to persuade them he was credible on the other. For instance, if the jury were to accept M.A.'s identification of the appellant as the perpetrator of her brutal assault, it could undermine the appellant's credibility in testifying that his sexual encounter with S.M. was consensual.

[134] Another related danger was that the jury would engage in prohibited propensity reasoning. If the jury were to find that the Crown had proven its case with respect to one of the set of charges, they might infer that the appellant was the kind of person who would commit these types of crimes and convict on the second set of charges. For instance, if he were the type of person who had a gun and held it to S.M.'s head and then choked and sexually assaulted her, he would also be the type of person capable of the sudden, senseless and vicious attack on M.A.

[135] Thus, the potential prejudice was significant in the circumstances of this case. (iii) Accused's decision whether to testify

[136] During submissions on the motion for severance, defence counsel indicated that the appellant would be more likely to testify with respect to the S.M. counts than with respect to the M.A. counts. As noted, the trial judge said that the "point was taken so vaguely as not to constitute a significant factor in this case".

[137] In my view, this factor also weighs in favour of severance in this particular case.

[138] An accused has the right to decide whether to testify after hearing the Crown's case. There is no requirement that an accused or his or her counsel state unequivocally that he or she will testify or not and commit themselves to that position in writing.

[139] Here, counsel raised the prospect that the appellant might wish to testify in one case but not the other. She explained that there was a greater probability he would testify in the S.M. case to assert his defence of consent. In the M.A. case, where identification was the issue, it could be reasonably anticipated that he would await the close of the Crown's case before deciding whether to testify.

[140] As there was some objectively discernible sense to the defence's position that the accused might wish to testify in one case and not the other, this factor, while not decisive, weighs in favour of severance. [page589] (iv) Additional factors

[141] As noted, the trial judge also considered the possibility of inconsistent verdicts, the question of a multiplicity of proceedings and the complexity of the evidence. In my view, none of these factors provide a rationale for a joint trial.

[142] The appellant could be found guilty in one case and not the other without leading to inconsistent verdicts, as the two cases were unrelated.

[143] Refusing severance may have avoided multiple trials, but the economy achieved was marginal. Had severance been ordered, no witnesses, except the police investigators, would have had to testify at two trials instead of one. Even with the police investigators, there would have been no duplication in their testimony in the two trials. Two trials would have required two juries be selected rather than one, but this efficiency would not be a proper consideration in determining the "interests of justice".

[144] While the evidence in this case was not particularly complex, I note that in his charge to the jury the trial judge mistakenly tied the evidence that the appellant possessed a gun to the M.A. counts. (v) Cumulative weighing of factors

[145] As indicated by Doherty J.A. in the passage from R. v. Savoury quoted above, despite the considerable deference owed to a trial judge's severance decision, this court may interfere where the trial judge's weighing and balancing of relevant factors results in an unreasonable decision.

[146] A particularly significant factor weighing in favour of severance in this case was the potential prejudice to the accused. While every case depends on its particular facts, I note that this court has intervened in a number of cases where, in deciding not to sever, the trial judge gave insufficient weight to the potential prejudice to the accused.

[147] For instance, in R. v. S. (F.), 1995 CanLII 8951 (ON CA), [1995] O.J. No. 2413, 83 O.A.C. 76 (C.A.), at para. 7, this court concluded that "[t] he possibility of prejudice resulting from not severing in this case substantially outweighed the minor gain in efficiency in having all charges tried together". In S. (F.), the accused was charged with sexually assaulting a mother and her six-year- old daughter. The mother was a witness in relation to the charges involving her and those involving her daughter. This court was concerned that there was a substantial risk of prejudice to the accused in not granting severance: if the jury found the mother credible with respect to the charges involving her, it would be difficult for them to find her not credible with [page590] respect to the charges involving her daughter. As discussed above, similar types of credibility concerns arise in this case.

[148] This court also interfered with the severance decision in R. v. Thomas (2004), 2004 CanLII 33987 (ON CA), 72 O.R. (3d) 401, [2004] O.J. No. 4158 (C.A.), where there was risk of serious prejudice to the accused. The case involved an elementary school teacher charged with 22 counts of sexual abuse involving 14 students. Ten of the complainants alleged acts such as groping, fondling, hugging and kissing, generally over clothing. Four others alleged more serious acts, including fellatio and full sexual intercourse. Two of these also alleged the accused inserted a broom or hockey stick into their vagina.

[149] Rosenberg J.A. concluded that the evidence of the ten complainants was admissible on the trial of the four complainants. However, he held, at para. 37, that "the evidence of the four complainants was not admissible against the appellant in respect of the ten complainants" and so "the trial judge should have severed those counts".

[150] In reaching this conclusion, he considered the prejudicial nature of the evidence in relation to the four complainants. Quoting from R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, [1989] S.C.J. No. 82, 50 C.C.C. (3d) 142, at p. 128 S.C.R., p. 162 C.C.C., he described the acts against the four complainants as arousing "sentiments of revulsion and condemnation" that could prevent the fair trial with respect to the ten complainants. Even though "[a]ll of the acts carried a high degree of moral repugnance" in that they involved a serious breach of trust by a teacher, Rosenberg J.A. recognized the different nature of the two sets of cases and the potential prejudice of trying them together. In this case, there is also a danger that "sentiments of condemnation" arising from the nature of the brutal attack on M.A. could prevent the jury from fairly considering the appellant's defence that his sexual encounter with S.M. was consensual.

[151] A third case in which this court has expressed concern about prejudice and has interfered with a decision not to sever is R. v. M. (B.) (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1, [1998] O.J. No. 4359, 130 C.C.C. (3d) 353 (C.A.). B.M. was charged [with] indecent assault, invitation to sexual touching, detaining for illicit sexual intercourse, gross indecency, buggery, incest, assault causing bodily harm, weapons offences and bestiality. This court concluded that the trial judge ought to have severed the bestiality counts. Rosenberg J.A. stated, at paras. 26-27:

There was a heavy onus on the Crown and the trial judge to ensure the appellant received a fair trial. In my view, the trial judge placed too much emphasis on the similarity of the charges and his view that the jury would not be inflamed by hearing the bestiality allegations. The bestiality charges were similar to most of the other counts only in the broadest sense that they [page591] involved a form of sexual behaviour. They were of a very different nature in all other ways. There was no need for the bestiality charges to be tried with the more serious counts: there is no nexus between them. Neither incident was necessary for the unfolding of the narrative and the evidence of bestiality was inadmissible on the other counts. . . . . .

Joining the bestiality counts with the other counts served only to invite the jury to engage in the forbidden line of reasoning that the appellant was the type of person likely to commit acts of sexual misconduct. Thus, faced with an indictment including these charges, the trial judge should have granted the severance application. (Emphasis added)

[152] While the facts of R. v. M. (B.) are different, Rosenberg J.A.'s approach, comparing the level of potential prejudice with the reasons for trying the counts together, can be applied to this case. In this case, there was no need for the charges relating to S.M. to be tried with the charges relating to M.A., and joining the two sets of counts invited the jury to engage in forbidden propensity reasoning.

[153] In summary, S. (F.), Thomas and D. (L.E.) illustrate that while this court is reluctant to interfere with severance decisions, it will do so where, on the particular facts of the case, the trial judge has given insufficient weight to the possibility of prejudice to the accused in weighing the relevant factors and in assessing what is required to satisfy the interests of justice.

[154] In this case, as I have outlined, there were real risks of prejudice to the appellant from hearing the counts together that weighed heavily in favour of severance. The Crown strenuously argued that it was open to the trial judge to choose to address that prejudice by deciding to give a careful limiting instruction to the jury. Regarding the option of dealing with potential prejudice by careful jury instruction as determinative in all circumstances would negate "general prejudice to the accused person" as an effective factor in the analysis. It must be remembered that the analysis requires the cumulative weighing of all factors.

[155] I note that the Crown cited no case in which the trial judge refused severance, choosing to deal with prejudice by a careful jury instruction, where there was not some countervailing reason to hear the counts together. Here, the countervailing factors in favour of trying these two sets of charges together were negligible and the reasons to sever were compelling. As a result, this was not a case to attempt to address the risk of prejudice by a jury instruction.

[156] In my view, the trial judge in this case gave insufficient weight to the serious risk that there would be substantial prejudice to the accused and insufficient weight to the possibility the [page592] appellant might wish to testify in one case and not the other. At the same time, he placed too much weight on countervailing factors in favour of trying the counts together, particularly on the tenuous nexus between the counts. His error in weighing and balancing the factors obliges this court to interfere.

[157] I would conclude that the trial judge erred in assessing the weight of the relevant factors and their cumulative effect on the interests of justice. He ought to have exercised his discretion to order the two sets of counts severed. (b) Resulting injustice

[158] I would also find that the severance ruling resulted in injustice on two grounds. First, given the real risk of prejudice to the accused, it was essential that the trial judge, if he chose not to sever, deliver a strong limiting instruction to minimize that risk. While the trial judge instructed the jury repeatedly that the evidence on one set of charges must not be considered in relation to the other set of charges, he did not warn the jury against impermissible propensity reasoning.

[159] In R. v. Samkov, [2008] O.J. No. 1005, 2008 ONCA 192, this court decided that a trial judge, having refused severance in a case where evidence on each count was not admissible as similar fact evidence on each of the other counts, must give the jury a strong limiting instruction that includes a warning against impermissible propensity reasoning. In concluding a new trial was necessary, this court explained, at para. 5:

In his instructions to the jury, the trial judge did segregate the evidence on each count but he made no reference to the use of evidence on one count in relation to any of the other counts. Nor did the trial judge instruct the jury that it was not to use the evidence on one count to infer that the appellant was the type of person whose character or disposition was such that he was likely to have committed the offences charged on the other counts. In our view, the absence of a proper limiting instruction was prejudicial to the appellant and the trial judge erred by failing to give such an instruction . . . . (Emphasis added)

[160] Likewise, in this case, the trial judge failed to specifically caution the jury against the impermissible chains of the reasoning that the Supreme Court identified in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82, 129 C.C.C. (3d) 321: first, that they must not find that the accused is a bad person and convict him on that basis; and second, that they must not convict the accused as punishment for what he may have done in the past. In addition, he should have charged them that they should not use the testimony of one complainant to bolster the credibility of the other. In the absence of such instructions to the jury, I [page593] would find that the severance ruling resulted in an injustice to the appellant.

[161] Second, the trial judge, having decided the evidence that the appellant was in possession of a gun on unrelated occasions was admissible on the counts relating to S.M. and having decided not to sever the S.M counts from the M.A., should have given a strong propensity instruction about that evidence on the M.A. counts. Instead he compounded the prejudice to the appellant by mistakenly tying the evidence that he possessed a gun to the M.A. counts in his charge to the jury. While the jury might have understood that he confused the two cases and misspoke, his comment may have undermined his caution that the jury consider the evidence related to the two sets of counts separately. Conclusion

[162] In view of my conclusion on the severance issue, I find it unnecessary to deal with the other grounds raised by the appellant.

[163] I would allow the appeal, set aside the convictions and remit the matter to the Superior Court for the S.M. and the M.A. counts to be retried separately.

Appeal dismissed.

Notes

Note 1: For the inadmissibility of propensity evidence see R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No 82, 129 C.C.C. (3d) 321, at para. 40; R. v. Handy (2002), 2002 SCC 56, 61 O.R. (3d) 414, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57, 164 C.C.C. (3d) 481, at paras. 31-36.