COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Dorsey, 2012 ONCA 185
DATE: 20120323
DOCKET: C50631
O’Connor A.C.J.O., MacPherson J.A. and O’Connor J. (ad hoc)
BETWEEN
Her Majesty the Queen
Respondent
and
Christopher Dorsey
Appellant
Brian Snell and Zachary Kerbel, for the appellant
Deborah Krick, for the respondent
Heard: January 25, 2012
On appeal from the convictions entered on November 1, 2007 by Justice Gloria Epstein of the Superior Court of Justice, sitting with a jury.
By the Court:
INTRODUCTION
[1] On November 1, 2007, the appellant, Christopher Dorsey, was convicted by a jury of sexual assault, sexual assault with a weapon, sexual assault causing bodily harm and unlawful confinement. These offences involved three different complainants, L.B., M.B. and M.N. He was acquitted on similar counts against two other complainants, C.B. and B.M. Counts relating to a sixth complainant, D.T., were severed. The appellant was declared a long-term offender and given a three year and four month prison sentence to be followed by 10 years of supervision.
[2] He appeals his convictions on two grounds, arguing that:
a) the trial judge erred in her instructions to the jury on its use of similar fact evidence, and
b) the trial judge erred by admitting the evidence of a complainant to be put to the jury as similar fact evidence after allowing the counts relating to that complainant to be severed.
[3] A third ground, that the trial judge erred respecting a Vetrovec instruction, was not argued and therefore was not considered by this court.
[4] For the reasons that follow, we would allow the appeal and order a new trial.
OVERVIEW
[5] All six complainants, who did not know each other, were crack cocaine users, prostitutes or both. The appellant was a heavy crack cocaine user. All the complainants gave evidence of attacks allegedly by the appellant that were the subject of the similar fact application.
[6] Between March 2003 and August 2004, the appellant met with each of the complainants either at the Newsboys Boxing Gym or in his apartment, and had sexual relations with them in return for crack cocaine. However, according to all of the complainants, after often long periods of smoking crack cocaine and engaging in various sex acts, the appellant’s demeanour changed radically. While demanding further sex with them, he would become angry and threatening and then physically abusive. The incidents usually lasted several hours and ended when the women eventually managed to escape, or when he threw them out. On one occasion, with the complainant whose counts were severed, he allegedly locked her in the gym for several hours while he left the premises to find more drugs.
THE FACTS
[7] A summary of the alleged attacks on the six complainants is as follows.
[8] In April, 2003, L.B. met the appellant when he was living at the Avenue Road Hotel on Pears Avenue in Toronto. She went to his apartment and smoked crack cocaine and then agreed to allow him to perform oral sex on her. He became argumentative and demanded that L.B. perform oral sex on him. He then brandished a knife, held it to L.B.’s neck, and threatened to kill her and throw her off the balcony. He would not let her leave the apartment. He forced her to continue giving him oral sex. After leaving the apartment, L.B. contacted a rape crisis centre. She reported her experience to the police on June 7, 2004. The appellant was found guilty of sexual assault of L.B. with a weapon.
[9] In July of 2003, M.B. met the appellant at the Avenue Road Hotel. They went to his room to smoke crack cocaine. She asked how much she owed him and he told her he was not in the business of selling crack. He demanded that she give him oral sex and threatened to break her jaw. She performed oral sex for a lengthy period of time. He then sodomized her. He would not let her leave the apartment. She escaped into the hallway naked and ran to her friend’s apartment. M.B. contacted the police after hearing about the appellant in the media. She gave a statement to police on July 18, 2004. The appellant was found guilty of sexual assault of M.B.
[10] In March 2004, M.N. went to the Newsboys Boxing Gym at Greenwood Avenue and Queen Street to buy drugs. She met the appellant there, did drugs and stayed there alone with him. After the drugs ran out, he began to touch her and pulled her into the bedroom portion of the gym. He grabbed her by the hair. He digitally penetrated her and grabbed her breasts. He told her that he had a gun and that he would shoot her if she moved. He left the building and M.N. remained locked in the gym. When he returned, the appellant dragged her up the stairs and pushed her out the door onto the street. She provided a statement on August 11, 2004. The appellant was found guilty of sexual assault causing bodily harm and unlawful confinement of M.N.
[11] During the summer of 2003, C.B. was working as a prostitute. She met the appellant and accompanied him to the Avenue Road Hotel to smoke crack cocaine. The appellant allegedly ordered C.B. to get on her knees. He pulled down his pants and forced his penis into her mouth. He punched her in the face and on the side of the head. He threatened her with a knife. She ran away. Several months later C.B. met the appellant again. A similar incident allegedly occurred; he pulled his pants down and put his penis in her face. He slapped her. She yelled and eventually left. C.B. contacted the police after reading an article in a newspaper about the appellant. She provided a statement to the police on June 10, 2004. The appellant was found not guilty of the two counts related to C.B.
[12] On May 25, 2004, B.M. was allegedly approached by a male about a “date” with the appellant. B.M. had been with the appellant before and knew that he wanted oral sex in exchange for crack. B.M. went to the Newsboys Boxing Gym. She alleged they smoked crack together and she performed oral sex on him. The appellant became angry and violent. He grabbed her by the hair and held her head, forcing her to continue to perform oral sex. He threw her on the bed, ripped her pants off and forced himself into her vagina. Over the next several days, he allegedly held her there and repeatedly forced her to have sex with him. He threatened to skin her alive and slice her up. B.M. managed to escape when a man came to the door. She ran to her friend’s house. She told her friends what had happened and they took her to the hospital. The hospital contacted the police and B.M. gave a statement to them that same night. The appellant was found not guilty on the two counts relating to B.M.
[13] D.T. allegedly went to the gym with two women in April 2004. They left and D.T. stayed to smoke crack with the appellant. She alleged that he became angry and left the gym, locking her in it. When he returned, they both smoked more drugs, and then he demanded that she remove her clothes. She complied out of fear. He then began performing oral sex on her. When he was finished he left and locked her in the basement again. She called her husband using her cell phone. Her husband called the police. The Fire Department rescued D.T. from the gym and took her to the hospital. The appellant was arrested that same evening just outside of the boxing club. The four counts relating to D.T. were severed from this trial.
The Similar Fact Application/Collusion Issue
[14] The granting of the similar fact application and the trial judge’s instruction as to how the jury could use the evidence was important to the outcome of the trial. The issue of possible collusion between complainants in a sexual assault case is often a key concern of a trial judge hearing a similar fact application. In this case the appellant raised the spectre of inadvertent or unintentional collusion.
Reasons of the Trial Judge
[15] The trial judge granted the similar fact application, citing the criteria for admission as set out in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. She undertook a careful analysis of the factors to be considered when assessing the probative value of the evidence and both the moral and reasoning prejudicial effects of it. She correctly noted that a high degree of probative value is required for admission. She then considered the possibility of collusion. At paras. 63 through 67 of her Ruling #6, allowing the admission of the similar fact evidence, she said:
The defence is responsible to show that there is an air of reality to the claim of collusion. It is then up to the Crown to prove on a balance of probabilities that there was no collusion. Mere opportunity and motive is not enough to taint the evidence. See: Shearing, supra, para. 44.
Ms. Morrow did not, either in her oral or written submissions seriously press the possibility of collusion other than to argue that media reports concerning Mr. Dorsey provided the various witnesses with an opportunity to concoct.
The Crown contends that there is no air of reality to collusion among the complainants. All six witnesses were unknown to each other, four of whom reported after seeing news coverage. The complainants have never met nor know the details of the events others have described.
The Crown further argues that viewing media coverage does not fall within the concept of collusion as collusion is based on evidence that the witnesses actually communicated with each other with a view to fabricating the evidence. I disagree. Handy makes it clear (at para. 111) that “the issue is concoction or collaboration”. The opportunity to concoct can be based on media coverage. See also: R. v. Hughes, 1998 Carswell BC 1747.
However, based on the evidence about the nature and content of the media reports and the testimony of the witnesses who said they were aware of them, I am not persuaded there is any air of reality to any claim of collusion. I say this due to the limited nature of the information contained in the reports and the vagueness of the evidence about the witnesses’ awareness of the reports, particularly the timing of the awareness in relation to when the various alleged assaults were reported to the media. [Emphasis added.]
[16] After the appellant raised the possibility of collusion in her closing submissions to the jury, the trial judge told the jurors, both shortly after defence counsel had completed her address and the next day in her charge to the jury, that they were not to consider the possibility of collusion and that it should not affect their assessment of the similar fact evidence.
[17] After defence counsel’s address, the trial judge said:
You will recall the detailed submissions in which defence counsel pointed out that Ms. [B] was the last of the witnesses who testified at this trial to complain to police, and that her report to the police included many elements that were similar to those elements contained in the reports of the other women.
This summary ended with a statement to the effect that you should be wary of an account that may be, and I quote from the submissions, “peppered with easily accessible information”.
This “easily accessible information”, according to the submissions of defence counsel, came from media reports and/or the communication network within the drug subculture.
Members of the jury, I wish to make it clear to you there is no evidence before you to support the submissions in this respect, and that you should disregard entirely any suggestion that the evidence of M.B. or the evidence of any other complainant should be discounted, due to the possibility that the evidence may have been affected by the media reports or through communication with others in the drug subculture.
I am giving you these instructions primarily with reference to M.B.’s evidence, because the collusion submissions were advanced very strongly in respect of the allegations she has made, but these instructions apply to any other complainant concerning whom that argument was advanced. [Emphasis added.]
[18] In her charge to the jury, the trial judge said:
Based on the test that the Supreme Court of Canada has established for the existence of collusion or concoction, I instruct you – and I said this to you yesterday – that there is no evidence of collusion or concoction in this case that should concern you in assessing what import, if any, you place on any similarities you find there to be in the descriptions of events that the women have provided to you. [Emphasis added.]
Appellant’s Position
[19] In her closing address to the jury, defence counsel made it clear that she was not suggesting there was evidence of the complainants actively talking to each other about their experiences. She did not argue the women directly collaborated or colluded amongst themselves to coordinate their stories. She characterized what might have happened as collusion “on a different level where we talk about the amount of information that was available to the women.” The type of collusion that may have arisen in this case was the possibility that the complainants, in sharing their experiences with others, after having heard rumours on the street and having seen and read television and newspaper reports about the appellant allegedly preying on women, intentionally or inadvertently modified or exaggerated their testimony to make it more convincing.
[20] The defence pointed out that there had been a police press conference followed by television and print press coverage of some of the alleged sexual assaults. Some of the particulars of the assaults were made public. For example, a Toronto Sun article alleged the appellant “locks up sex-trade workers and sexually assaults them” and that one woman “was able to call police by cell phone when she was left alone” and that the appellant “allegedly contacts women through a third party, invites them to a meeting, then things turn bad and the women are forced to perform sex acts.” L.B., one of the complainants with respect to whom a conviction was registered, said she heard on the street that “a lot of women” who did not come forward, were assaulted by the appellant. M.N. said she had heard stories on the street “about various things that may have happened” to other women. She also said that “he has done this to many people … lots of people have told me.”
[21] At trial, the defence argued that the evidence from the complainants gave at least an air of reality to the form of collusion that could have occurred. Thus, the jurors should have been instructed that they could consider the possibility that the women’s evidence was not a product only of their independent memories but that it could have been tainted by other sources. The defence argued that their memories could have been influenced by their drug addictions and their lifestyles. The jury should have been instructed on the possibility that their recollections may have been tainted by news reports, rumours and gossip on the street and within the drug culture.
[22] In this appeal, the appellant argues that the trial judge’s failure to leave the possibility of inadvertent collusion with the jury was an error. The jury should have had the opportunity to consider and weigh collusion as a factor. This omission had the effect of depriving the appellant of a fair trial.
Respondent’s Position
[23] The Crown argued at trial that there was no air of reality to any claim of collusion because the claimants neither knew each other, nor did they know the details of the alleged assaults others had experienced. Further, because D.T., the complainant whose counts were severed, had been rescued by police in the appellant’s boxing gym and because she had immediately given a statement to the police, there was no opportunity for her evidence to have been tainted by press reports or street gossip.
[24] The respondent argues that the significant similarities between and among the women’s evidence, given that they did not know each other and could not have colluded with each other, could not be explained by coincidence. Therefore, their evidence should be considered reliable.
The Law
[25] In Handy, supra, Binnie J., at paras. 110-112, sets out the principles governing collusion and potential collusion in the context of a similar fact application:
Collusion is a factor, yes, but more than that it is a crucial factor because the existence of collusion rebuts the premise on which admissibility [of similar fact evidence] depends.
If the evidence [of collusion] amounts to no more than opportunity, it will usually best be left to the jury.
The Court in Arp, supra, concluded that the test for the admission of similar fact evidence is based on probability rather than reasonable doubt. Accordingly where, as here, there is some evidence of actual collusion, or at least an "air of reality" to the allegations, the Crown is required to satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion. That much would gain admission. It would then be for the jury to make the ultimate determination of its worth. [Emphasis added.]
[26] Where the similar fact test is met, that is, the probative value of the evidence outweighs its legally prejudicial effect, but there is also evidence of actual collusion among the complainants whose testimony constitutes the similar fact evidence, the Crown must show, on a balance of probabilities, that the evidence of similar fact is not tainted by collusion. If the Crown is unable to satisfy this onus, and the judge finds actual collusion among complainants, he must exercise his gatekeeper function and deny the similar fact application. However, where the evidence shows only the opportunity for collusion or collaboration possibly tainting the evidence, then the matter should be left to the jury. The jury must consider the effect of the possible collusion when deciding the weight to be given to the similar fact evidence. At para. 111 of Handy (above), Binnie J. says, “if the evidence [of collusion] amounts to no more than opportunity, it will usually be left to the jury.”
[27] In R. v. Shearing (2002), 2002 SCC 58, 165 C.C.C. (3rd) 225 (S.C.C.), at para 44, Binnie J. says:
Here, there is some evidence of opportunity for collusion or collaboration and motive, but nothing sufficiently persuasive to trigger the trial judge’s gatekeeper function. There is no reason here to interfere with the trial judge’s decision to let the collusion issue go to the jury. He instructed the jury to consider “all of the circumstances which affect the reliability of that evidence including the possibility of collusion or collaboration between the complainants”. He defined collusion as the possibility that the complainants in sharing their stories with one another, intentionally or accidentally allowed themselves to change or modify their stories in order that their testimony would seem more similar or more convincing. It was for the jury to make the ultimate determination whether the evidence was “reliable despite the opportunity for collaboration” or that “less weight or no weight should be given to evidence which may have been influenced by the sharing of information”. [Emphasis added.]
[28] In R. v. F.(J.) (2003), 2003 CanLII 52166 (ON CA), 177 C.C.C. (3rd) 1 (O.C.A.), at para 86, Feldman J.A. says:
The Supreme Court has recently addressed the seriousness of the possibility that evidence has been tainted by collusion in the context of the treatment of similar fact evidence. In the cases of R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 and R. v. Shearing (2002), 2002 SCC 58, 165 C.C.C. (3d) 225, the court held that before admitting similar fact evidence, the trial judge must be satisfied of its reliability and exclude it if not satisfied on a balance of probabilities that the evidence is not tainted by collusion. Once admitted, the jury must still be warned to assess the evidence carefully and to consider whether it can be considered reliable given the possibility of deliberate or accidental tainting by collusion among the witnesses.[Emphasis added.]
Analysis
[29] Here, it is clear that there was at least some evidence of possible inadvertent collusion, perhaps not enough to deny the similar fact application, but sufficient to raise concerns that the opportunity for tainting of the evidence existed. Put another way, there was at least an air of reality to the possibility of inadvertent collusion. As discussed in Shearing, the trial judge should have left it with the jury to decide the effect that possible collusion may have had on the weight to be assigned to the evidence of the complainants.
[30] In this case, the opportunity for the jury to assess the weight of evidence, given the possibility for collusion, was specifically taken from them. In our view, the trial judge erred in instructing the jury, after the defence address, that there was no air of reality to the theory that “evidence may have been affected by the media reports or through communication with others in the drug subculture.” Similarly, in her charge, she erred in instructing the jury that the test set down by the Supreme Court of Canada for collusion or concoction had not been met and further that “there is no evidence of collusion or concoction in this case that should concern you in assessing what import, if any, you place on the similarities you find there to be in the descriptions of events the women have provided to you.” The reference to the Supreme Court of Canada test added an aura of authority to the trial judge’s admonition. In our view, she erred in taking the issue from the jury.
[31] At trial, the issue of potential collusion or tainting, even inadvertently, was an important element in the defence case, as counsel told the jury in her closing address. Taking from the jury any consideration whatsoever of this issue, especially in a case where the balance of the evidence was not overwhelming, given that the appellant was found not guilty of two of the five complainants’ counts, amounted to reversible error.
The Severance/Admission of Evidence Issue
[32] At the outset of the trial, the judge permitted the severance of the counts respecting D.T. Having done so, she then permitted the Crown to call D.T. as a witness to give similar fact evidence. Her rulings in this regard raise the question of whether or not the combined effect of allowing both applications violated the appellant’s right to silence.
Reasons of the Trial Judge
[33] During the pre-trial motions the defence applied to sever the counts on the indictment relating to the allegations of D.T., M.B. and B.M. The appellant indicated that his defence to the D.T. counts was that she had consented to the sexual activity. He therefore wished to testify with respect to only that issue as it related to the D.T. counts. He indicated he did not wish to give evidence respecting his defence to the other complainants’ counts.
[34] The trial judge allowed the severance of the D.T. counts only. In ruling #3, at paragraphs 66 to 69, she said:
I now turn to the D.T. counts.
First, I agree with the defence that while there are similarities between the alleged circumstances of the D.T. assault and the other alleged assaults, there are also factors that set the D.T. counts somewhat apart.
However, this slightly diminished probative value alone would not be sufficient to warrant the D.T. counts being severed. The primary factor that has influenced the exercise of my discretion to sever the D.T. counts is Mr. Dorsey’s stated intention to testify on his own behalf in relation to those counts and the timing, significance and apparent legitimacy of that intention.
I am satisfied that Mr. Dorsey has met his burden of demonstrating that the interests of justice require that the D.T. counts be severed from the rest of the indictment. While the consequences of this conclusion give rise to administrative inconvenience and additional cost, these considerations do not take precedence over Mr. Dorsey’s interests or his constitutional rights. [Emphasis added.]
[35] Following the severance application, the Crown applied to admit D.T.’s allegations as similar fact evidence to support the credibility of the other five complainants. The trial judge, in allowing the application, in Ruling #4, said at paras. 63 and 64:
As I have said, the potential probative value is high. The risk of moral prejudice is low because Mr. Dorsey already faces allegations made by 5 separate complainants, the details of which are factually similar and the severity of the conduct alleged is of a similar degree of seriousness. One more complainant will not affect the trier of fact in an improper way. Furthermore, the risk of reasoning prejudice is also low where the case involves 5 complainants. This evidence will not distract the trier of fact from coming to their conclusion.
The Crown has satisfied me that, on balance, the probative value of the proposed evidence would be greater than any prejudicial effect.
Appellant’s Position
[36] The Appellant argues that in having granted the severance and then allowing the similar fact application, including D.T.’s evidence, placed the appellant in the untenable position of testifying only regarding D.T.’s severed counts and none of the others. The jury would have been at least curious, if not dubious about his sincerity, as to why he was testifying on the counts on which he could not be convicted but not on the counts on which he could be found guilty.
[37] The trial judge was alive to the conundrum the appellant faced. At the conclusion of the Crown’s case she said:
If, however, he decides to testify only because the jury has heard what D.T. has to say, and that’s the only reason he decides to testify, then in those – and that’s all he wants to talk about – then in those circumstances, it seems to me one possibility in relation to making sure that he is not adversely affected by my similar fact ruling, in a way that I’ve tried to protect him with my severance ruling, is to allow him to testify only in relation to D.T., not allow the Crown to cross-examine him beyond that, and simply give proper instructions to the jury. [Emphasis added.]
However, the appellant argues that the trial judge’s proposed solution did not correct the problem of which she was admittedly aware.
Respondent’s Position
[38] The respondent argues that the trial judge’s reasons for granting the similar fact application discloses no error and the appellant’s right to a fair trial was not impaired by the ruling.
[39] The respondent asserts that a similar fact application is not the same as a severance application, and that the tests for granting each are different. The granting of one application does not automatically bring a similar ruling in the other. It is acceptable that the outcomes may differ. The trial judge provided detailed reasons on the similar fact application decision, and applied relevant law. There was a discussion of the similarities between the evidence of D.T. and the other complainants. The potential risk of prejudice was low and the probative value was high.
[40] The respondent also submits that the Crown deliberately omitted calling evidence that would bolster the strength of the D.T. evidence. He elected not to call DNA evidence, nor evidence of other witnesses that would have corroborated the D.T. story. Therefore, the defence had no need to give evidence in response to the testimony of D.T. At the conclusion of the Crown’s case, the defence could have brought another application, but did not do so. This was an indication that the appellant wished to testify on all charges at trial.
The Law
[41] In R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, the Supreme Court of Canada expanded the rules, rights and privileges derived from the principle against self-incrimination by finding that the right to silence is included within s. 7 of the Charter.
[42] The connection of the right to silence to the principle against self-incrimination is clear in the reasons of McLachlin J., as she then was, at para. 47:
The measure of the right to silence may be postulated to reside in the notion that a person whose liberty is placed in jeopardy by the criminal process cannot be required to give evidence against himself or herself [i.e., the principle against self-incrimination], but rather has the right to choose whether to speak or to remain silent.
[43] Thus, the right to silence is rooted in the privilege against self-incrimination. Section 11(c) of the Charter precludes a person from being compelled to testify at trial.
[44] In R. v. Amway Corp., 1989 CanLII 107 (SCC), [1989] 1 S.C.R. 21, at para. 35, Sopinka J. wrote that the purpose of s. 11(c) is: “to protect the individual against the affront to dignity and privacy inherent in a practice which enables the prosecution to force the person charged to supply the evidence out of his or her own mouth.”
[45] In R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, the trial judge dismissed Mr. Last’s application to sever the counts of two complainants. He was convicted on all counts. This court dismissed his appeal. The Supreme Court of Canada set out the factors a trial court must take into account when considering a severance application. While the court in Last was dealing with only a severance application, its comments on one of the eleven factors to be considered are applicable to this case. Where the accused expresses his intention to testify on one count but not others, Deschamps J, writing for the court, said at paras. 25 and 26:
In assessing the accused’s testimonial intention on a severance application the underlying concern is for the accused’s ability to control his defence, and, more specifically, his right to decide whether or not to testify with respect to each of the counts unimpaired by inappropriate constraints.
Both the Crown and the defence submit that the accused’s intention should be objectively justifiable. This requirement is, indeed, a threshold. The accused’s expression should have both a subjective and an objective component. However, while a formulaic expression of a subjective intention is not sufficient in and of itself to discharge the accused’s burden to have the counts severed, the trial judge should not substitute his or her own view for that of the accused and determine that the accused should testify or not. Rather, the trial judge must simply satisfy him- or herself that the circumstances objectively establish a rationale for testifying on some 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. The information could consist of the type of potential defences open to the accused or the nature of his testimony: Cross, at p. 421. However, the accused is not bound by his stated intention; he remains free to control his defence, as the case unfolds, in a manner he deems appropriate. [Emphasis added.]
Analysis
[46] An accused’s right to remain silent is an anchor in protecting his Charter rights. In this case, the appellant submits that he was coerced “into the box” to testify by the trial judge’s decision to allow the severance of the D.T. counts, and then to later allow the similar fact evidence application regarding D.T.’s evidence.
[47] There is merit to the appellant’s position. By deciding to sever the D.T. counts, the trial judge properly allowed the appellant to control his own defence. However, by then allowing the similar fact application regarding the D.T. evidence, the trial judge, in effect, nullified the protection she had previously concluded was necessary when severing the counts.
[48] The two rulings conflicted with each other. The similar fact ruling likely had the unintended, yet unfortunate, effect of at least influencing the appellant to testify on all counts, if not leaving him no choice but to do so. This violated the principles described in Last, and removed from the appellant his ability to control his own defence, thereby violating his ss. 7 and 11(c) Charter rights. The appellant’s counsel expressed the appellant’s “surprise” and frustration that the inevitable result of the two rulings was that he felt he had to testify on all counts. His counsel then advised the court that the appellant reluctantly had decided to give evidence in response to all counts he faced. While the result was no doubt unintended, it nevertheless resulted in infringing the appellant’s right to a fair trial.
[49] Once both applications were granted, the trial judge suggested that she would allow the appellant to testify in relation to D.T.’s alleged consent to the sexual conduct and limit the respondent’s cross-examination to that issue. She also suggested giving a limiting instruction to the jury. She said she would “…allow him to testify only in relation to D.T., not allow the Crown to cross-examine him beyond that, and simply give proper instructions to the jury.” However, in our view, the trial judge’s proposed solution did not assist the situation. The prospect of the appellant testifying on only the counts relating to D.T. was not satisfactory. It would raise serious questions in the jury’s mind about why the appellant did not testify on the other charges. A limiting charge may only have emphasized or highlighted the fact that the appellant had not denied the counts of the other complainants. The jury may have been left wondering why he had not done so.
[50] In reaching this conclusion, we should not be taken to say that in cases where an accused seeks a severance on the basis that he or she wishes to testify on only some of the counts, a court should always grant severance. As pointed out by the Supreme Court in Last, there are a number of factors to be taken into consideration in making a decision to sever. The difficulty in this case is that the trial judge made the severance order primarily on the basis of the need to allow the appellant to testify on only the D.T. charges. Having reached that conclusion, it was an error, in our view, to then make the similar fact ruling that had the effect of denying the appellant the protection the trial judge had previously determined was necessary.
[51] It should be noted that the admission of D.T.’s evidence probably added no more than a minimal benefit to the administration of justice. While one can only speculate on the effect her evidence may have had on the verdicts the jury reached, it is noted there were five other complainants giving similar evidence. When weighing the potential probative value of D.T.’s evidence against the prejudice to the appellant, once her counts were severed, her evidence should not have been permitted before the jury.
CONCLUSION
[52] The appeal is allowed and a new trial ordered.
“D. O’Connor A.C.J.O.”
“J.C. MacPherson J.A.”
“O’Connor J. (ad hoc)”
RELEASED: “DOC” “MAR 23 2012”