COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Waudby, 2011 ONCA 707

DATE: 20111115

DOCKET: C50556

Rosenberg, Sharpe and Juriansz JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

John Waudby

Appellant

Victor Giourgas, for the appellant

Jamie Klukach, for the respondent

Heard: November 9, 2011

On appeal from the judgment of Justice Douglas M. Belch of the Superior Court of Justice dated January 31, 2007 sitting with a jury.

ENDORSEMENT

[1] The appellant appeals his convictions on a number of charges stemming from three separate sexual assaults, submitting that the trial judge erred by not granting his application for severance, and appeals his sentence submitting that the trial judge erred by not finding him to be a long-term offender rather than a dangerous offender. We do not agree with either submission.

Severance

[2] The appellant applied to sever the counts relating to the complainant LC from the counts relating to HF and TK. The assault of LC occurred on February 6, 2004 and the assaults of HF and TK occurred about one hour apart on June 10, 2004.

[3] In responding to the appellant’s severance application, the Crown indicated that it intended to bring an application to admit similar fact evidence later in the trial. The Crown sought only to have the evidence relating to TK admitted as part of its case in regard to LC. If the trial were severed, and the similar fact evidence were admitted, a significant number of witnesses, including TK, would have to testify twice. Counsel for the appellant argues that the Crown’s similar fact application lacked any merit and was doomed to fail. However, he recognizes that if the Crown’s application appeared to have merit, it would be difficult to establish that the trial judge erred by refusing to sever.

[4] In R. v. L.(G.E.), 2009 SCC 45, at para. 33, Deschamps J. stated that where a similar fact application will be brought later in the trial, the trial judge should consider the similar fact evidence issue “carefully in the context of the severance application”. Here, the trial judge did that. On the severance application he said that “there are more than minimal similarities between counts, here”. We agree with this assessment. The Crown’s similar fact application, assessed carefully at the time of the severance application, appeared to have sufficient merit to establish a legal nexus between the LC and TK counts.

[5] The appellant also argues that the trial judge did not attach sufficient weight to his stated intention to testify with respect to the LC counts. At the time of the application, he was unsure whether he would testify with respect to the HF and TK counts. In R. v. L.(G.E.), at para. 26, Deschamps J. indicated that the expression of an accused’s intention to testify should have both a subjective and objective component. The trial judge

must simply satisfy him- or herself that the circumstances objectively establish a rationale for testifying on come counts but not others. The burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention.

[6] Here, the accused had not satisfied that burden. The strength of the Crown’s case regarding TK included DNA evidence and was overwhelming. Absent an explanation for the presence of his DNA, he faced almost certain conviction. There was no objective rationale for the accused to testify in the LC case but not in the TK case. Subjectively, the accused had not indicated a definite intent not to testify on the other counts. Consequently, we do not agree that the trial judge under weighed this consideration.

[7] In all the circumstances, there was a factual and legal nexus between the counts and, despite the complexity of trying all the counts together, there was the usual judicial economy from avoiding multiple trials.

[8] The trial judge dealt with the potential prejudice against the appellant by giving the jury clear and repeated instructions to avoid propensity reasoning and to base its decision on each charge only on the evidence relating to that charge. The apparent force, at first view, of the Crown’s pending similar fact application provided a sufficient reason for deciding to deal with the potential prejudice through jury instructions.

[9] Finally on this point, we have not been persuaded that the severance ruling resulted in any injustice.

Sentence

[10] The appellant raises three grounds with respect to the trial judge’s declaring him to be a dangerous offender and imposing an indeterminate sentence of imprisonment.

[11] First, the appellant argues that the trial judge followed the test under s. 753(4.1) for determining the appropriate sentence for a dangerous offender rather than the test under s. 753.1(3.1) for assessing whether he met the criteria for a long-term offender designation. The appellant did not press this point in oral argument. The trial judge articulated the proper test earlier in his reasons, and at one point he used some language that was similar to some of the words in s. 753(4.1). When his reasons are read as a whole, it is clear the trial judge applied the correct test.

[12] Second, the appellant submits that the trial judge erred in rejecting the long-term offender designation on the basis that he could not impose a determinate sentence significantly longer than five years after giving the appellant two-for-one credit for the four years and eight months he had spent in custody. He submits the trial judge should have considered the option of imposing a sentence of longer than five years so that the appellant finished the ten year supervision order at an age when “burn out” would have made it reasonably possible to control his risk in the community.

[13] On the evidence in the record, the age at which the appellant would “burn-out” was speculative. The trial judge was entitled to conclude, “This court is not prepared to base its decision on [the appellant’s] possible burn-out”. In any event, this was not viable sentencing option given the young age of the appellant and the general range of ages when offenders “burn-out”.

[14] Third, the appellant submits the trial judge erred by not concluding that the appellant’s risk in the community could be controlled by anti-androgen medication while subject to long-term supervision. The evidence established that the appellant lacked insight; he had taken no steps to demonstrate a commitment to pharmaceutal intervention. There was no evidence showing even that the appellant was a sutiable candidate for such treatment. This was not a viable option.

[15] We are not persuaded there was any error in the trial judge declaring the appellant a dangerous offender.

Conclusion

[16] The appeal is dismissed.

“M. Rosenberg J.A.”

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”