WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Young Offenders Act and is subject to subsection 38(1) of the Act. This subsection and subsection 38(2) of the Young Offenders Act, which deals with the consequences of failure to comply with subsection 38(1), read as follows:

38. Identity not to be published. — (1) Subject to this section, no person shall publish by any means any report

(a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or

(b) of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence

in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.

(2) Contravention. — Every one who contravenes subsection (1),

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Information No.: 110100

Date: 2012-11-28

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

C.A.

Before: Justice André L. Guay

Heard on: June 18, 2012

Decision released on: November 28, 2012

Counsel:

Wesley D. Beatty for the Crown

Michael J. N. Haraschuk for the Defendant C.A.

Decision re: Motion for Severance

GUAY J.:

1. ISSUE

In October 2011, the accused young person was charged with 6 counts of sexual abuse against 2 boys—his cousins. In June 2012, he applied to have the trial of the 2 sets of charges (3 against each boy) severed.

2. FACTS AND LAW

a) Application for Severance

The accused brings his application for severance of the counts against him pursuant to Section 591(3)(a) of the Criminal Code. He alleges that the interests of justice require that he be tried separately on counts one, two and three, and that these counts be tried together and severed from the remaining counts three, four, and five.

b) Burden and Test for Severance

The burden of establishing the need for severance lies on the Applicant. He is required to establish, on a balance of probabilities, that the interest of justice requires the court to exercise its discretion and grant severance. The accused argues that the trial judge must balance his right to be tried on admissible evidence against society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner. In particular, the accused relies on the case of R v. Last, reported at (2009), SCC 45 in establishing the criteria to be considered by the court in weighing the interests of justice in such matters.

These criteria include:

1. The general prejudice to the accused
2. The legal and factual nexus between the counts
3. The complexity of the evidence
4. Whether the accused intends to testify on one count but not on another
5. The possibility of inconsistent verdicts
6. The desire to avoid a multiplicity of proceedings
7. The use of similar fact evidence at trial
8. The length of the trial, having regard to the evidence to be called
9. The potential prejudice to the accused with respect to the right to be tried within a reasonable time
10. The existence of incompatible defences between co-accused persons

c) General Prejudice: Reasoning and Moral Prejudice

Of these criteria, all of which must be considered, the one with the greatest weight in this and, frankly, other cases, seems to be that of general prejudice to the accused arising from a trial of all counts against him at the same time. The concern is that trying multiple counts together will give rise to reasoning prejudice and moral prejudice against the accused by the trial judge.

Reasoning prejudice relates to the impact of a joint trial of all counts on the trier of fact's perception of the accused and the possibility that this perception will distract the trier of fact from the question of whether a particular charge has been proven.

Moral prejudice relates to the risk that the trier of fact may then improperly engage in propensity reasoning, the kind of reasoning which leads the trier of fact to convict the accused on the basis that he has the propensity to do in a second or subsequent event or events what he has done before. The theory here is that the trier of fact's repulsion to alleged acts of the accused may impair or distract him or her from exercising a rational analysis in coming to a proper conclusion about whether or not the accused is guilty.

d) Reduction of Prejudice Risk

The accused's concern regarding reasoning and moral prejudice are answered, I find, in the 2009 MacCormack case from the Ontario Court of Appeal, wherein Watt, J.A., noted that, in large measure, the practical realities of a trial judge sitting on a case in which the allegedly similar acts have occurred significantly reduce the risk of reasoning prejudice. To the extent that there is similar fact type of evidence in such matters, the Ontario Court of Appeal also noted in R v. Cresswell, (2009), any such evidence which the court allows 'does not by itself render the evidence admissible across all counts, it significantly reduces the risk of prejudice'.

e) Legal and Factual Nexus

A second consideration, and an important one also in the present matter, is that, in the accused view, there is no legal and factual nexus between the counts. The legal and factual nexus consideration relates to the overlapping of events with essential common elements between them.

f) Factual and Legal Nexus Analysis

The Crown, in its factum, sets out the elements of a factual and legal nexus between counts brought against the accused. These include the age of the victims, the relationship of the victims to the accused, the location of the alleged acts, the time frame of the alleged acts and the performance of similar acts with both victims.

Given the youthful age of the complainants, the dissimilarity in their anticipated evidence leads me to see their evidence more as establishing a factual and legal nexus than might be the case if the complainants were adults, arguably more capable of greater precision in their thought and recollection. I am not unaware that the evidence of children is not absolved from the need for specificity, but I realize that there is quite often a weakness in that evidence resulting from the emotional and intellectual immaturity of child complainants. While the court must make allowances for the weaknesses in the evidence presented by children, it is, I realize only too well, not absolved from requiring sufficient detail and particulars in that evidence to give consideration to it.

g) Risk of Collaboration

The accused raises the risk of collaboration between joint complainants under the rubric of prejudice resulting from non-severance of the counts against him. The argument made by the accused in this respect is not a strong one and certainly not strong enough to argue in favour of severance. There does not, at the present time at least, appear to be much evidence suggesting that the complainants or anyone associated with them discussed their evidence in any great degree prior to the trial.

h) Complexity and Length of Trial

The accused seems to argue that the evidence of child complainants would completely complicate the trial and unnecessarily lengthen it. I do not accept this argument because the counts faced by the accused are not numerous. There are only 2 complainants and the events from which the complaints arise took place over a relatively short period of time. These events deal with acts which are similar in nature and are not in themselves difficult to comprehend. Consequently, the trial of these counts together would not raise the issue of complexity or length of the trial.

i) Accused's Right to Testify Selectively

The possible wish and right of the accused to testify with respect to certain counts but not with respect to other accounts he is facing is really not before me at the present time, in that the accused did not indicate at the time of bringing his severance application whether it was his intention to testify on certain counts but not on others.

j) Risk of Inconsistent Verdicts

The accused alleges further, and pursuant to the 5th criteria noted in the Last case, that there may be a risk of contradictory verdicts if the complaints of the 2 complainants are dealt with together. In my respectful view, the trial of the various counts together might result in conviction on all counts, conviction on no counts or conviction on some counts either with respect to one or both of the complainant's allegations. The trial of multiple counts is not an all or nothing proposition. The acquittal or conviction on any one count must depend principally on the evidence with respect to that count.

k) Similar Fact Evidence Application

The Crown has indicated its intention of bringing a similar fact application prior to the close of the trial. If this occurs, it is my understanding, affirmed in the Cresswell case, that such evidence would not automatically apply against all counts faced by the accused.

l) Administrative Convenience vs. Fair Trial

The accused argues that the factor of administrative inconvenience resulting from a multiplicity of proceedings does not trump the accused's right to a fair trial free from propensity evidence. The issue here is not administrative convenience or economy but rather whether it is reasonable in all the circumstances and considering the evidence that the various allegations against the accused be dealt with at one time involving less inconvenience to both him and the complainants. It seems clear from what counsel have said that if severance of the counts against the accused were permitted, both he and the complainants would have to participate in a proceeding which has been unnecessarily divided. There is every reason, given the factual and legal nexus obvious in this matter, to have the allegations against the accused dealt with in the same proceeding.

m) Similar Fact Evidence and Burden of Proof

I will not here comment on the possibility of having recourse to similar fact evidence as I have already addressed that matter. The R v. Arp (1998) decision of the Supreme Court of Canada seems to address this point. There, the Court made it clear that the burden of introducing similar fact evidence lies on the Crown, whereas the burden encountered in applying to sever counts on an indictment lies with the accused.

I note here the R v. Scarrott (1977) decision of the English Court of Appeal referred to in the accused's factum which established that allowing a multi-count indictment to proceed does not mean that the evidence given will be evidence on all counts contained in the indictment. The Manitoba Court of Appeal decision of R v. Khan (1996) again referred to in the accused's factum, points out that it remains open to the trial judge hearing a multi-count information "to determine as a matter of law that evidence on one count is not admissible as similar fact evidence on the other counts".

n) Remaining Criteria

I will not deal with the remaining criteria set out in the Last decision as noted above, as they are not really pertinent to the facts in this application.

o) Context Sensitivity

Lastly, I will address one point raised by the Crown in its factum. It is that of context sensitivity. This concept has to do with the innate right of the trier of fact to understand all of the facts related to a matter coming before him or her, specifically those which may cast some light or understanding directly or indirectly on that matter. Only then can he or she come to come to a proper conclusion about the truthfulness of the allegations underlying any accusations against the accused.

3. CONCLUSION

For the above reasons then, my ruling is that the trial of all counts against the accused should proceed at the same time. It would be in the interest of justice to proceed accordingly, bearing in mind the need to follow correct legal principles.

Dated Sudbury this 28th day of November 2012.

Justice André L. Guay