CITATION: R. v. Ward, 2010 ONCA 806
DATE: 20101130
DOCKET: C46808
COURT OF APPEAL FOR ONTARIO
Goudge, Sharpe and Gillese JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
Bruce Ward
Appellant
Jill Presser, (duty counsel) for the appellant
Emile Carrington, for the respondent
Heard: November 18, 2010
On appeal from the convictions entered on June 21, 2006 by Justice Bruce A. Glass of the Superior Court of Justice, sitting with a jury, and the sentence imposed on January 31, 2007.
ENDORSEMENT
[1] The appellant was convicted of three counts of fraud-related offences and eight counts of sexual assault-related offences. He was sentenced to fifteen years imprisonment less 44.5 months credit for pre-trial custody. He appeals from conviction and seeks leave to appeal from sentence.
[2] The appellant’s main ground on the conviction appeal relates to the failure of the trial judge to sever the sexual assault-related counts. He argues that because of the reprehensible nature of those offences, the trial judge was required to sever and try those counts separately from the counts of fraud. The trial judge’s failure to sever the counts, the appellant argues, prejudiced the jury and deprived him of a fair trial.
[3] For the reasons that follow, we do not accept this submission.
[4] In R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, the Supreme Court of Canada recently considered the issue of severance. While the decision in Last was delivered after the severance application in this matter was decided, in our view, the ruling fully complies with its dictates.
[5] In Last at para. 16, Deschamps J., writing for the Court, stated that the ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in the interests of justice. At para. 17, she states that this involves the weighing of factors to ensure that “a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial”.
[6] A number of factors that the courts can properly consider are set out in para. 18 of Last. They include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; the desire to avoid a multiplicity of proceedings; and, the use of similar fact evidence at trial. In the present case, the trial judge properly considered each of these factors.
[7] The trial judge was explicitly aware of the potential prejudice to the appellant in trying the two sets of counts together. He recognized that the appalling nature of the evidence of the sexual assaults “might lead a jury to focus on unsavoury conduct and in so many words throw in the towel on the [appellant] for the fraud related charges.”
[8] However, the trial judge ultimately concluded that the probative value of hearing the fraud and sexual assault charges together outweighed any potential prejudice to the appellant. He committed no error in reaching this conclusion, given the substantial legal and factual nexus between the two sets of charges.
[9] The appellant would issue forms of threat indicating that he was associated with powerful people who could make people disappear or be hurt. He introduced V.C. as his personal bodyguard to Merson. He had previously beaten V.C. and showed her in an injured state to Merson to help prove his story that he was fending off a powerful secret society. The appellant used similar methods in committing the other frauds and in his relationship with V.C. so that she would not leave him and report his assaults on her. Further, some cheques obtained through the frauds were sent to V.C.’s residence and she filled them in, at the appellant’s direction.
[10] The trial judge found that the information V.C. would give with respect to her involvement with the appellant on the fraud charges was direct evidence that would be properly presented to the jury. In addition, he found that the evidence of the victims of the fraud would have a direct “interplay” with the sexual assault charges because the victims saw V.C. with the appellant and understood her to be a bodyguard with the organizations he claimed to be involved with.
[11] The evidence relating to the two sets of charges was inextricably intertwined and, as the trial judge stated, there was no reasonable way to “sensitize” the evidence of the complainant V.C. and Merson without making their evidence useless.
[12] We see no error in the fact that the trial judge admitted similar fact evidence regarding the controlling acts of the appellant. Such evidence was admitted to explain the appellant’s modus operandi. For example, he told Merson that he belonged to a powerful organization and V.C. that he belonged to a powerful family; he told both that he served in the military and that he had killed people; and he threatened death as a consequence for failing to do what he asked. Crown counsel at trial identified 16 points of similarity between the acts committed against Merson and V.C. We would simply add that there is no challenge to the trial judge’s instruction on similar fact evidence and that defence counsel never objected to the admissibility of such evidence.
[13] The trial judge properly balanced the prejudicial and probative factors in deciding whether to sever the charges. He recognized that severance could impair not only the efficiency but also the truth-seeking function of the trial. He acted judiciously in exercising his discretion to try the two sets of charges together and his decision is entitled to deference from this court: Last, at para. 14.
[14] In relation to the sentence appeal, we see no basis on which to interfere with the global sentence of 15 years before credit for pre-trial custody. The trial judge considered the appellant’s mitigating circumstances, including his short criminal record and his illness. The trial judge properly held that the cruelty and torture of the offences against V.C. called for very strong denunciation by the court.
[15] The appeal from conviction is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.
“S. T. Goudge J.A.”
“Robert J. Sharpe J.A.”
“E. E. Gillese J.A.”