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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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: 2018-11-23

Court File No.: Brampton 3111 998 17 8034

Between:

Her Majesty the Queen

— AND —

Brandon Carter-Teixeira

Before: Justice G.P. Renwick

Heard on: 23 November 2018

Reasons for Judgment released on: 23 November 2018

Counsel:

• C. Sibian — counsel for the Crown
• M. Schwartzentruber — counsel for the defendant Brandon Carter-Teixeira

Ruling on Severance Application

RENWICK J.:

INTRODUCTION

[1] The defendant has set a trial upon two counts of sexual assault involving two separate complainants. The matter is set to be tried over four days, in roughly 10 weeks, before me. Today, the defendant seeks to sever his two count Information to have two separate trials during this time period. The prosecution opposes the application for severance, largely on the basis of its intention to bring a similar fact application as between the counts.

[2] In advance of the hearing of this application, the parties filed written arguments, materials, and jurisprudence, which I had read and considered in advance of the oral arguments made today. As I alluded to during submissions, this is not a simple decision and I have spent many hours considering the issues in preparation for this application.

DISCUSSION

[3] The parties agree on the relevant governing principles. Where they part company is how the legal considerations apply in the context of this case. For this reason, I will simply state that the "overarching criteria" for an application for severance of counts, pursuant to s. 591(3) of the Criminal Code of Canada are the interests of justice: see R. v. Last, 2009 SCC 45 at para. 1.

[4] The Supreme Court has provided a non-exhaustive list of factors to consider. It is clear in Last that no one factor or set of factors predominates and the court must consider the cumulative effect of all of the considerations to determine the content of the phrase "interests of justice" in this context.

[5] The parties in the case at bar agree that several of the factors are neutral in this case. Both sides agree that complexity, the possibility of inconsistent verdicts, the length of the trial(s), and potential prejudice in terms of the Defendant's s. 11(b) Charter rights, are neutral factors and do not pull in favour of granting or dismissing the Application. Because there is no co-accused, the possibility of an antagonistic defence does not exist, so this factor does not apply. Neither party suggested any other factor that could affect the interests of justice analysis.

[6] Of the factors I must assess, I can rely upon the dichotomy suggested by Justice Deschamps in Last: truth seeking interests versus benefits to the administration of justice. Clearly, general prejudice to the Defendant, declared testimonial intention, and a potential similar fact application are trial fairness considerations, while avoiding multiple trials and legal or factual nexus are administrative convenience determinants.

[7] The parties agree that given the constitutional status of the Defendant's right to a fair trial, considerations which affect or limit his defence rank higher than those concerned with judicial resources.

General Prejudice

[8] The Defendant submits that there is a risk, albeit reduced in a bench trial, that the trier of fact will be subject to faulty reasoning on the basis of hearing other allegations and evidence which cannot be used to bolster credibility, impute bad character, or otherwise confuse the separate analyses which must take place to determine whether or not an allegation is proven beyond a reasonable doubt. This risk is discussed by Justice Hennessy in R. v. J.C.L. at paragraph 15:

The question here is would a judge hearing allegations that the accused had sexually assaulted his stepson be more likely to believe that twenty years later he would sexually assault his step-grandson? Or would a judge be able to assess each of the complainants' evidence separately and render a fair verdict based on the evidence solely with respect to the individual complainant.

[9] In the end, His Honour acknowledges that judges are no less human than jurors, but "the criminal justice system is based on a confidence that judges, by training and experience, can dispassionately apply the rules of evidence in ways that juries cannot." I agree with His Honour, that in a bench trial, although it exists, this risk is much reduced.

[10] As well, counsel for the Defendant agreed that if the matters are severed the timing of these trials would not be affected because the first known allegation could proceed during the first two days set for trial and the second known allegation could proceed during the latter two days. Counsel for the Defendant agreed that I would be entitled to hear the second trial, immediately after the first trial. This rationale spoke to the economy of resources that would not be affected if severance were ordered. This concession undermines the suggestion that the Defendant fears exposure to the risk of propensity or other inappropriate reasoning if the same justice hears both sets of allegations.

[11] For this reason, this factor only slightly suggests that severance is appropriate.

Legal And Factual Nexus

[12] The parties agree that although there are similarities across the two complaints, there is no factual nexus that joins the two sets of allegations. Other than possibly calling the arresting officer (which may or may not be necessary), there are no witnesses in common for the prosecution of each count.

[13] In terms of any legal nexus, there was not much argument by the Respondent prosecutor. The anticipated defences are the same: no sexual assault took place. The legal issues are the same for both allegations.

[14] In contrast, the Defendant's argument is categorical: there is no legal nexus. The defence to be advanced against the first complainant's allegation involves the Defendant's intention to testify to disprove or raise a doubt about the prosecution's case, whereas, for the second complainant, the Defendant will allege a subtle and perhaps unintentional tainting which reduces the value of the prosecution's evidence below a capacity to discharge its onus of proof.

[15] The Defendant never provided a statement to the police concerning the second allegation (which allegedly took place two days prior to the first allegation). It is difficult to know with certainty whether the Defendant would maintain a similar defence (it never happened) or raise a lack of mens rea defence on the basis of inadvertent or accidental touching.

[16] Although the defences or possible defences may be different, the legal issues to be decided are essentially the same: can the prosecution prove beyond a reasonable doubt that there was a non-consensual application of force for a sexual purpose. I do not find on the basis of what is known at this point that this factor weighs in favour of severance or the status quo. It is a neutral factor.

Testimonial Intention

[17] This was the main thrust of the Defendant's submissions for severance: he will be prejudiced in controlling his defence by dismissal of the application. The Defendant clearly asserts an intention to testify respecting the first known allegation and to remain silent with respect to the second. The prosecution submits that there is no real basis to distinguish between the two complaints and points to the likelihood that the Defendant will testify in both cases anyway.

[18] The Supreme Court aptly characterized this argument in Last:

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.

[19] The Court agreed with the appellant that there must be an objectively justifiable basis to give this factor weight, and where it exists it will be given significant but not determinative consideration. In that case, the Supreme Court agreed that there existed an objectively justifiable rationale for the accused to testify respecting one complainant and not the other, but in the final analysis, in that case, this factor was given little weight because:

It was thus fairly probable he would have to testify in order to put forward his theory of the case -- that it was someone else who entered the apartment and committed the assault. Such a testimonial outcome was discernable at the time of the severance application.

[20] The result is similar here. I find it objectively justifiable to assert an intention to testify on the first known allegation rather than the second, given the significant avenues of cross-examination of the second complainant surrounding her possible subconscious tainting. However, given what we know about her decision to make a complaint about the Defendant's conduct once she contrasted it with another massage therapist's and her steps to report him to his governing body before she learned of any outstanding criminal charge, there is a real possibility that the Defendant will want to testify to raise a reasonable doubt. This is even more likely because he has not given a statement that restricts him from advancing an inadvertent or accidental contact defence.

[21] The Defendant submits that his potential Edgar application to adduce his reaction to the allegations after he testifies in response to the first known allegation is another rationale which strengthens his position. He has no corresponding statement or need to testify in response to the second complaint. Without the Edgar application before me, I cannot assess its viability. However, while this strengthens the objective justifiability of the rationale to defend himself differently, it does little to alter the result. There remains the possibility that he may wish to testify to respond to the second known allegation.

[22] In the end, I find that this factor favours severance, but only slightly.

Avoiding a Multiplicity of Proceedings

[23] This factor is minor in this case. The prosecution may not be calling the investigating officer to testify in either case, and there is no forensic or other evidence that would require multiple appearances by several witnesses if the counts were severed and tried separately. Although avoiding a multiplicity of proceedings in related allegations generally favours a joint trial, this is a neutral factor, here.

Similar Fact Application Viability

[24] The reasons of Justice Hennessey in J.C.L. and Justice Kurke in R. v. G.D. make it clear that I cannot prejudge the possible cross-count similar fact application that may be brought if severance is denied, but I must assess its viability in order to determine the value, if any, of this consideration. Generally speaking, if a similar fact application is viable, this will favour keeping the counts together. The opposite is also true. The parties agree that if severance is granted, the prosecution is precluded from bringing a similar fact application.

[25] The Defendant takes issue with the prosecution's characterization that the similar fact application appears strong. The Defendant notes the several dissimilarities as between the separate allegations: the number of assaults; the perception of the first complainant that the Defendant was looking at her exposed parts; the perception of the second complainant that the inappropriate touching began innocently; and the different "routes of disclosure," among others.

[26] The prosecution relies on the following similarities to advance the viability argument:

• each incident involved a relationship between the complainant as a first time client of the Defendant as a massage therapist;
• the Defendant did not follow proper draping techniques to avoid inappropriate exposure of the complainants' bodies;
• the inappropriate touching began by the request of the Defendant to massage their gluteal muscles, despite that no initial request had been made by each for a massage of this area;
• the Defendant removed each complainant's underwear to massage their buttocks; and
• both complainants stressed that the inappropriate touching happened multiple times, involving contact with the outside surface of the vagina, by subtle brushings of the Defendant's fingertips across each complainant's vagina.

[27] There are many other incidental similarities between the two sets of allegations because each arose in the context of a female client receiving a massage in a semi-nude state from the Defendant during a therapeutic massage. However, these similarities relate more to the context than the allegations of impropriety. In my view, they are immaterial in determining the weight to be given to this consideration.

[28] In R. v. Carson, Justice Hill discussed what evidence qualifies as appropriate similar fact evidence:

To found admissibility, the prosecution cannot hope to rely upon an impermissible general disposition inference (R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 18; U.C., [2009] O.J. No. 1805, at para. 41), similarities of a "general character" (R. v. Chapman (2006), 204 C.C.C. (3d) 449 (Ont. C.A.), at para. 24), "generic" similarities commonly seen in the commission of the alleged crime(s) (R. v. Cresswell, 2009 ONCA 95, at para. 8; R. v. R.B. (2003), 68 O.R. (3d) 75 (C.A.), at paras. 49, 64, 69), or facts at the "vague end of the spectrum": Handy, at para. 85. However, where the evidence gives rise to an inference of a specific disposition, for example, "a specific disposition to sexually abuse his companion's two young daughters" (U.C., at para. 41) or "to show the appellant's specific propensity to engage in sexual misconduct with boys in his care who came to him in a vulnerable condition" (R. v. B.(R.) (2005), 77 O.R. (3d) 171 (C.A.), at para. 11), the evidence may support a legitimate chain of reasoning and a "persuasive degree of connection" justifying a similar fact ruling in favour of the prosecution: R. v. L.T. (2005), 196 O.A.C. 394 (C.A.), at para. 16.

[29] Again, it is not my intention to prejudge a possible similar fact application, here. Suffice it to say that this potential application appears to have merit. Consideration of the Ontario Court of Appeal decision in R. v. S.C. reinforces this view.

[30] The Applicant took aim at the value of similar fact evidence where the evidence is not advanced to prove identification, the possibility of unintentional collusion or tainting exists and must first be negated by the prosecution, and this is not a case where the Defendant will suggest fabrication, in any event. Counsel says these features reduce the potential success of an application to adduce similar fact evidence and the ultimate worth of same.

[31] Despite counsel for the Applicant's able submissions, I find that there is a marked viability to the similarity of the circumstances and evidence as between the alleged assaults which could support a finding that its probative value would exceed its prejudicial effect. In a bench trial, where there is a reduced risk of cross-contamination of reasoning or the cross-pollination on credibility assessments the probative value may well eclipse any potential prejudice.

[32] This factor significantly favours dismissing the Application.

CONCLUSION

[33] After a careful consideration of all of the submissions and the cases presented, I recognize that this is a close case. There are features that favour severance: general prejudice and stated testimonial intention. The countervailing argument to introduce similar fact evidence is significant. Indeed, the truth-seeking function of the trial may be hindered if severance is ordered and similar fact evidence demonstrating a distinct pattern of behaviour becomes inadmissible.

[34] I have considered the constitutional nature of the factors suggesting severance in this case and the cumulative effect of the entire analysis. Indeed, judicial or administrative convenience must never trump trial fairness and the truth-seeking function of the court.

[35] In the final analysis, I am not satisfied on a balance of probabilities that the interests of justice require severance in this case. The Application is dismissed.

Released: 23 November 2018

Justice G. Paul Renwick