WARNING

The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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.

Court Information

Ontario Court of Justice

Date: September 8, 2016

Court File No.: OTTAWA 15-5095

Between:

Her Majesty the Queen

— and —

R.V.

Before: Justice Julie Bourgeois

Heard on: August 30, 2016

Ruling released on: September 8, 2016

Counsel:

• Mr. Jonathan Melo, counsel for the Crown
• Mr. Michael Spratt, counsel for the accused R.V.

Decision

BOURGEOIS, J.:

[1] Background

The Applicant is facing charges of a sexual nature against two complainants. The period of time captured on the counts in relation to one of the complainants is from January to December 1980, while the period of time for the second complainant is from January to November 1981.

The Applicant was initially charged on separate Informations for the two complainants, on July 30, 2015. A re-laid Information, including all counts for both complainants, was sworn to and filed on December 10, 2015. A trial date was set for four days in December 2016.

[2] Legal Framework

Both parties agree that the Supreme Court of Canada case R. v. Last, 2009 SCC 45 is the seminal case reviewing the law and establishing or restating and clarifying the test to be applied in severance application matters. It states at paragraph 16:

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, as per section 591(3) of the Criminal Code. The interests of justice encompass the accused's rights to be tried on the evidence admissible against him, as well as society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.

Factors have been identified to assist in the weighing exercise to "ensure that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial." The Supreme Court also noted "that the interests of justice often call for a joint trial" and that "Severance can impair not only efficiency but the truth-seeking function of the trial" (paragraph 17).

Finally, the Supreme Court listed the factors, not an exhaustive list but a "rightly used" list of factors, at paragraph 18:

the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co-accused persons.

[3] Analysis of Compelling Factors

After hearing counsels' submissions and reviewing their respective material, I find these factors to be the most compelling ones in favour of a severance of the counts for each of the complainants:

1. The possibility of the accused testifying on the counts for one complainant but not the other

I find this argument to be strong enough on its own because the issue it creates cannot easily be cured or avoided by any other way than a severance of the counts in relation to each complainant. In some cases, a person facing charges where credibility will be the central issue, might know in advance of the trial, whether he or she will testify or call evidence. In this case, the allegations would have taken place when one of the complainants was about nine years old, in 1980, and the other complainant would have been between three and six years old, in 1981. Here, the very nature of the charges, the passage of time and the age of the complainants at the time of the alleged offences make it such that reliability will obviously be a live issue and would have an impact on the accused's decision to testify or not. The Applicant indicated in their material that at the time of filing the application, he was not in a position to confirm that decision yet. But it is also an issue that can change during the course of trial, after hearing the evidence in chief of a complainant, given the circumstances mentioned above in this particular case.

2. The merit of a possible similar fact evidence application

Without deciding the issue in advance, it does not seem obvious at this point that such an application would be successful. Based on the information available here, in the context of the severance application, the basis for a similar fact evidence application would include more general details such as, for example:

• both complainants are cousins of the accused;
• both were children under the age of ten;
• the majority of the incidents took place at the accused's home, where he lived with his parents or on their property;
• none of the alleged incidents involve penetration.

I am also led to believe that the issue of collusion will be argued as the complainants would have discussed the matters prior to attending the police station and providing their statement. At the time this application was filed for the hearing of this motion, no discussion was held nor was material filed by the Crown in relation to a similar fact evidence application. Also, at the time the trial dates were set, no time was set aside for its hearing or for its decision from the court aside from the four days set for trial. The court cannot be expected to give such an important decision on the spot, during the course of the trial. At the same time, counsel for the accused is certainly entitled to have a ruling as to which evidence will be used against his client and to what extent and purpose before being called to its election to call evidence or not.

3. The absence of other factors

• absence of a legal or factual nexus;
• absence of complexity;
• absence of the possibility of inconsistent verdicts;
• absence of antagonistic defence.

4. The length of the trial

In this case, the length of the trial is almost completely unaffected by the issue of a severance or not. In either circumstance, each complainant will have to testify, whether one trial of four days is set aside or two trials of two days.

[4] Remaining Factors

This leaves us with the following factors:

A. The desire to avoid multiplicity of proceedings

Each complainant having to testify at trial, the only added risk of testifying twice is during the presentation of an application by the Crown for a similar fact evidence application. I have addressed this point earlier.

B. The prejudice to the accused to have a trial within a reasonable time

All constitutionally guaranteed rights and freedom apply to the benefit of an accused person. To set two trials of two days or so, or one trial of four days in the Ontario Court of Justice ought not to be difficult to secure within a reasonable time.

C. The general prejudice to the accused

Even though this is not the strongest argument on this application, in the end, why not avoid the risk all together rather than leaving the possibility of perception of that risk. The court has not heard any evidence on this motion as only written materials and oral submissions were presented. Therefore, the hearing of this severance motion does not affect anything on this front. The court certainly has the ability to consider and properly apply relevant and admissible evidence to various analysis and burden of proof but in this case, the possibility of perception can be avoided all together.

[5] Conclusion

In the end, I conclude that the Applicant has established, on a balance of probabilities, that the benefits to the administration of justice in trying the counts for each complainant together is minimal. Considering the cumulative effect of the factors in balancing the interest, the absence of "compelling countervailing reasons for having a joint trial" as stated at paragraph 44 in R. v. Last, above. In the end, a severance of the counts would not impair the efficiency or the truth-seeking function of a trial. As a result, I grant the application and order the severance of the counts for each of the complainants.

Released: September 8, 2016

Signed: Justice Julie I. Bourgeois