WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Z.H., 2018 ONCJ 295

DATE: 2018 03 02

COURT FILE No.: Espanola 17-Y9 / 17-Y11

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Z.H., a young person

Before Justice V. Christie

Heard on February 23, 2018

Reasons for Judgment released on March 2, 2018

S. Baker................................................................................................. counsel for the Crown

T. Waltenbury......................................................................... counsel for the accused, Z.H.

APPLICATION FOR SEVERANCE OF COUNTS

CHRISTIE J.:

[1] Z.H., a young person within the meaning of the Youth Criminal Justice Act, is charged as follows:

On or about the 1^st day of January, 2015 at the Town of Espanola in the said Region did commit a sexual assault on D.K. contrary to section 271 of the Criminal Code;

On or about the 1^st day of September, 2015 at the Town of Espanola in the said Region did commit a sexual assault on A.K. contrary to section 271 of the Criminal Code of Canada;

On or about the 1st day of September, 2015 at the Town of Espanola in the said Region did for a sexual purpose invite A.K. a person under the age of sixteen years to touch directly with a part of his body to wit his penis the body of Z.H. contrary to section 152 of the Criminal Code of Canada;

On or about the 1st day of September, 2015 at the Town of Espanola in the said Region, did, for a sexual purpose expose his genital organs to A.K. a person under the age of sixteen years contrary to section 173(2) of the Criminal Code of Canada.

[2] On February 23, 2018, counsel on behalf of Z.H. argued an application for severance, specifically that the counts involving D.K. be severed from the counts involving A.K.

[3] Mr. Waltenbury, on behalf of Z.H., argued that it is in the interests of justice to grant severance and suggested that there are four factors which are significant and must be considered in this case:

(1) The accused’s intention to testify on some counts but not others;

(2) A cost-benefit analysis of granting severance;

(3) The prospect of a similar fact application; and

(4) Prejudice

[4] With respect to the intention to testify on some counts but not others, Mr. Waltenbury very candidly stated that Z.H. intends to testify in relation to the counts involving D.K. but not on the counts involving A.K. Further, he stated that his client is able to give helpful evidence to his defence in relation to D.K. He argued that pursuant to Last, this is a strong factor in favour of severance.

[5] Regarding the cost benefit analysis, Mr. Waltenbury argued that whether the trials are severed or joined, the time estimate is approximately the same. Further, regarding any potential 11(b) application, Mr. Waltenbury argued that keeping the trials together could actually result in all matters being stayed, as opposed to splitting the trials and considering the delay in relation to each matter separately. Further, Mr. Waltenbury stated that there is really no overlap, or at least very little overlap, in witnesses. Therefore, considering the cost-benefit of granting or refusing severance, he argued that there is nothing to counter balance the prejudice that will be done to the accused by proceeding as one trial.

[6] Mr. Waltenbury stated that with respect to the prospect of a similar fact application, other than the Crown’s bald assertion that the matters are similar, there is really nothing to support that position. He submitted that there are many differences between the two complaints. He stated that the allegations themselves are significantly different. With respect to A.K., there is an allegation that the accused poked her in the vaginal area while they were downstairs watching a movie. With respect to the allegations involving D.K., the events are alleged to have occurred at the base of the stairway, the accused asked her to make out to which she responded “no”, he then allegedly forced himself on her, and tried to put his hand down her pants in her vaginal area. Mr. Waltenbury submitted that these scenarios are very different. He also submitted that the age of the complainants is very different, D.K. being 12 years of age at the relevant time, making her close in age to Z.H. who would have been 13 years old at the time, as opposed to A.K. who was 4 years old at the relevant time. Further, Mr. Waltenbury pointed out that following the alleged incidents, D.K. went to sit with a parent, however A.K. had no parent present. Finally, Mr. Waltenbury submitted that the Supreme Court of Canada in Handy made it clear that the first question to be asked is what is the purpose of this evidence. Mr. Waltenbury submitted that the Crown has not answered that question, therefore leaving the only conclusion to be that the purpose of similar fact evidence in this case would be to make the argument of general proclivity towards inappropriate sexual behaviour which is not permissible.

[7] In his factum, Mr. Waltenbury further argued that there is no temporal nexus between the allegations. He also pointed out that there are legal issues that apply to the charges involving A.K. that do not apply to the charges involving D.K. and vice versa, including:

(1) There will be an application for 3^rd party records with respect to the D.K. matter.

(2) There will be an application to stay the A.K. matters on the basis of pre-charge delay.

[8] Finally, with respect to prejudice, Mr. Waltenbury acknowledged that this is a judge alone trial and that the prejudice is minimized as judges can separate what can and cannot be considered. However, Mr. Waltenbury argued that the prejudice here is that the accused will be forced not to testify at all if a single trial is held and therefore not be able to advance his defence with respect to one of the complainants.

[9] Ms. Baker on behalf of the Crown argued that severance should not be granted in this case because the matters are factually and legally similar. She argued that there will be a similar fact application brought and that the argument for similar fact evidence in this case is strong. She reminded the court that the Crown can bring such an application at the end of the case. She argued that the similarities in this case are not trivial, specifically the events are alleged to have happened at times proximal to one another – within 8 months, the events are alleged to have occurred at the same location – the grandmother’s house, and the acts themselves are similar in that both acts are attempted digital penetration of the vagina. Ms. Baker submitted that there is no suggestion of collusion in this case. In her factum, the Crown referred to the following legal and factual nexus between the counts:

(1) The complainants share the same relationship with Z.H., as they are his female cousins. (It was clarified during submissions that Z.H. and A.K. are blood related but that Z.H. and D.K. are not blood related.)

(2) The complainants are both female, and were under the age of 14 when the incidents occurred.

(3) The acts occurred within 8 months of one another.

(4) The assaults occurred at the same location.

(5) The acts are similar in nature, and involve pulling down the complainants’ pants and digital or attempted digital penetration.

[10] Further Ms. Baker submitted that if the similar fact application is granted, the court would hear the same evidence twice from the grandmother, mother and both complainants. However, the Crown conceded that without the similar fact evidence, there would be little to no overlap in the evidence called, most importantly the complainants would not have to testify twice.

[11] Finally, the Crown suggested that the prejudice is reduced in a judge alone trial.

[12] In reply, Mr. Waltenbury confirmed that collusion, or at least the suggestion of collusion, will be a very live issue in this case. Further, in response to the Crown’s submission that the grandmother will be an overlapping witness, Mr. Waltenbury stated that the police do not have a statement from her on the D.K. allegation.

Analysis

A. Introduction – Legislation and Test to Be Applied

[13] Section 591 of the Criminal Code provides the basis upon which a severance application may be granted. It reads as follows:

591(1) Subject to section 589, any number of counts for any number of offences may be joined in the same indictment, but the counts shall be distinguished in the manner shown in Form 4.

(2) Where there is more than one count in an indictment, each count may be treated as a separate indictment.

(3) The court may, where it is satisfied that the interests of justice so require, order

(a) that the accused or defendant be tried separately on one or more of the counts; and

(b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts

(4) An order under subsection (3) may be made before or during the trial but, if the order is made during the trial, the jury shall be discharged from giving a verdict on the counts

(a) on which the trial does not proceed; or

(b) in respect of the accused or defendant who has been granted a separate trial.

[14] On an application to sever a multi-count indictment, or in this case information, the ultimate question for the Court to decide is "whether severance is required in the interests of justice". As stated in R. v. Last (2009), 2009 SCC 45, 247 C.C.C. (3d) 449 (S.C.C.), by Deschamps J. for a unanimous Court at paragraphs 16 and 17:

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 s. 591(3) of the Code. The interests of justice encompass the accused's right 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.

17 Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed when deciding whether to sever or not. The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial. It is important to recall that the interests of justice often call for a joint trial. Litchfield, where the Crown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example. Severance can impair not only efficiency but the truth-seeking function of the trial.

[15] The party applying for severance bears the onus to show, on a balance of probabilities, that the ends of justice require a severance.

B. Factors to be considered

[16] The key principles to be weighed in deciding whether “the interests of justice” require severance or joinder are summarized by the Supreme Court of Canada in Last. Justice Deschamps indicated the following factors are not exhaustive, but rather “simply help capture how the interests of justice may be served in a particular case, avoiding an injustice” when judges consider severance applications:

(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 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; and

(10) The existence of antagonistic defences as between co-accused persons.

Some of these factors will be elaborated on below.

General and real prejudice to the accused

[17] The risk of prejudice to the accused that would flow from joinder has been a critical factor leading the Court to order severance in some cases. In Last, as discussed at paragraphs 40 and 46, there was a significant risk of propensity reasoning due to the joinder of sexual counts that did not amount to similar acts. See also: R. v. M.(B.) (1998), 1998 CanLII 13326 (ON CA), 130 C.C.C. (3d) 353 (Ont. C.A.), at paragraphs 26-27 (evidence on "unrelated counts" of bestiality particularly sordid, and therefore prejudicial).

Factual and legal nexus between the counts

[18] As part of the consideration on severance, the Court will look at whether all counts arise from the same transaction or related transactions, or, if from different transactions, whether they meet the test of similar fact evidence.

[19] In R. v. Litchfield (1993), 1993 CanLII 44 (SCC), 86 C.C.C. (3d) 97 (S.C.C.), Justice Iacobucci held that the original severance order had created an injustice to all parties and the administration of justice. Iacobucci J. held that the severance order effectively prevented the full story of the accused’s actions and behaviour from being led into evidence.

[20] The Ontario Court of Appeal, in R. v. Ward, 2010 ONCA 806, upheld a decision to deny severance of three fraud-related charges from eight charges related to sexual assault, due to the significant factual and legal nexus linking the allegations. The complainant relevant to the charges of sexual assault was alleged to be involved in the fraud activities. The Court held:

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.

In other words, there was simply no way to separate the evidence as it related to one set of charges as opposed to the other. See: R. v. Ward, 2010 ONCA 806 at para 11; see also: R. v. Lacelle, 2010 ONSC 7024 – where the accused was denied severance as there were a number of factors that constituted a factual nexus giving rise to the need for joinder.

[21] In Last, the Supreme Court of Canada held that the severance application was properly granted, even though there was some factual nexus. The court characterized the nexus as “extremely thin” and “tenuous”. According to Last, the court should consider whether the trier of fact would need to know about one in order to understand the other.

[22] It would appear, therefore, that it is the degree of factual or legal nexus that is the important consideration for this factor, not just that a nexus exists.

Whether the accused wishes to testify on some counts as opposed to others

[23] Where the accused expresses his intention to testify on some counts but not others, Deschamps J., writing for the court in Last, stated:

25 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 restraints.

26 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.

27 While an accused's provisional intention with respect to testifying is certainly a consideration which should be given significant weight, it is but one factor to be balanced with all the others. An accused's stated and objectively justifiable intention to testify on some but not all counts is not necessarily determinative of a severance application. It can be counterbalanced by other circumstances that the judge finds may prevent the accused from testifying, or be outweighed by factors that demonstrate that the interests of justice require a joint trial.

[24] In R. v. Thomas, 2010 ONCA 662, [2010] O.J. No. 4250 (C.A.), the Court of Appeal upheld the decision of the trial judge not to sever even where there was a stated intention to testify on some counts but not on others. The court stated in part as follows:

[4] The trial judge found that there was a close nexus between the event (in a period of less than 24 hours) grounding the Criminal Code and CDSA charges. He did not regard the joint trial of the four offences as leading to undue complexity. He was concerned that a young, vulnerable complainant (on the sexual assault charge) testify, if possible, only once. He also specifically addressed potential prejudice to the appellant. In all of this, in our view, the trial judge's identification and balancing of the relevant factors was appropriate and in line with the existing case law and, in an anticipatory sense, with Last. There is a high degree of deference to a trial judge's ruling in this domain and the trial judge is entitled to that deference in this case: See Last and R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333. Finally, we note that the appellant makes no objection to the trial judge's charge to the jury on the issue of the danger of cross-pollination on credibility assessments and propensity reasoning.

[25] The Ontario Court of Appeal in R. v. Dorsey (2012), 2012 ONCA 185, 288 C.C.C. (3d) 62 (Ont. C.A.), upheld a decision by the trial judge to sever charges about which the accused intended to testify from charges about which the accused intended not to testify. The court noted that this severance provided necessary protection for the accused’s right to remain silent, pursuant to the articulation of that right in Hebert, and the accused’s right to control his own defence.

Other considerations

[26] Whether the case will be proceeding with a jury or with a judge sitting alone is a relevant consideration on the severance application. The fact that a judge sitting alone and not a jury will try the accused diminishes the weight of the complexity of trying the counts together and, to some degree, may also lessen the extent of general prejudice. Where a jury is contemplated, these issues are of much more concern. See: R. v. E. (L.) (1994), 1994 CanLII 1785 (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.).

Conclusion

[27] In this case, prejudice is minimized due to the fact that this is a judge alone trial. Further, there would appear to be nothing complex about the issues in this trial that would weigh in favour of severance. However, having considered the circumstances of this case and the application of the law to those circumstances, I find that several factors in this case militate in favour of severance of the counts:

(1) The accused wishes to testify with respect to the allegations made by one complainant but does not wish to testify with respect to the allegations made by the other complainant. The Court was advised that Z.H. is able to give helpful evidence to his defence in relation to D.K. The circumstances of this case objectively establish a rationale for testifying on some counts but not others.

(2) While it is expected that the complainants and other witnesses may testify in relation to both sets of charges if a similar fact application is made, without similar fact there would be minimal overlap of witnesses, including the fact that the complainants would not need to testify twice.

(3) With respect to the admission of similar fact evidence at either trial, the Crown has indicated an intention to bring such an application. The onus will be on the Crown to show on a balance of probabilities that the probative value of the similar fact evidence outweighs its potential prejudice. The Crown is also required to satisfy the trier of fact that the evidence of similar facts was not tainted with collusion. The Court was advised that collusion will be a live issue at this trial.

(4) With respect to a factual nexus, there would appear to be significant differences between these alleged events, including the age of the complainants, the relationship between the complainants and Z.H., and the details of the alleged acts themselves. The allegations concerning A.K. are more than just actual or attempted digital penetration of A.K.’s vagina. In fact, as reflected in the charges, the allegations include Z.H. exposing his penis to A.K. and asking her to touch his penis. This is very different from the allegations made by D.K.

(5) The narrative can be easily separated. These alleged events took place at completely different times, 8 months apart, and involved different complainants.

(6) Severance of the counts does not unduly lengthen the trial. It would appear that one trial is estimated to take 2 to 3 days. Given the allegations, it would seem that each of these trials would take approximately 1.5 days.

(7) There is no risk of inconsistent verdicts in this case as the charges are distinct and could logically result in different verdicts.

[28] The Court must consider and balance the risk of prejudice to the accused and the public interest in a single trial. Even where there is prejudice to the accused, this can sometimes be counterbalanced or outweighed by factors that demonstrate that the interests of justice require a joint trial. In Last, the Court stated, “a joint trial in the circumstances of this case did not serve any truth-seeking interest, and brought few if any benefits to the administration of justice”. That statement is equally applicable to this case for the reasons stated above.

[29] For these reasons, severance is granted in this case. Specifically, count 1 will be severed from counts 2 to 4.

Released: March 2, 2018

Signed: Justice V. Christie