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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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: 2019-11-05

Court File No.: Central West Region-Hamilton 18-8582

Between:

Her Majesty the Queen

— and —

Scott Huehn

Before: Justice Anthony F. Leitch

Heard on: September 19, 2019

Reasons for Judgment released on: November 5, 2019

Counsel

Alannah Grady — Counsel for the Crown

Jeffrey R. Manishen — Counsel for the Defendant Scott Huehn

Reasons for Judgment

Leitch J.:

Application for Severance

[1] This is an application for separate trials by way of severance of the two counts of sexual assault in the information. The defence must show on the balance of probabilities that the interests of justice require such an order.

[2] Each count in the two count information charges a sexual assault by the defendant during the course of chiropractic treatment he gave to two employees of "A.H.", a restaurant and bar. The defendant was a licensed chiropractor at the time of the alleged sexual assaults. He was a regular patron of A.H. where he was served by the complainants who were waitresses at the restaurant. He encouraged each of them to come to his clinic.

Legal Framework for Severance

[3] Severance of counts is granted where the defence establishes that it is in the interests of justice. In R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146 (SCC), the Supreme Court said that severance is granted to control "the obvious risk (that) when counts are tried together … the evidence admissible on one count will influence the verdict on an unrelated count".

[4] In this case the Crown will be bringing a count to count similar fact application at the close of the evidence. If this presumptively inadmissible reasoning is permitted, influence from count to count is the outcome. Admissibility permits count to count pooling of the allegations. Once admissible, the weight to be given to the requested inference is determined by reference to the distinctive similarities between the counts. The issue in question in this case is whether those similarities are sufficiently probative to prove that the sexual assaults happened and to rebut any allegation that the alleged touching was a mistake or rendered in the course of regular chiropractic treatment by accident.

[5] R. v. Last, supra, sets out a list of factors to be considered on a severance application, factors that serve to define what is in the interests of justice. No one factor predominates. The court must determine whether, after a cumulative analysis of the many factors, the defence has met the interests of justice test on the balance of probabilities. The factors are:

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 being called
9. The potential prejudice to the accused with respect to the right to be tried within a reasonable time

Analysis of Severance Factors

The General Prejudice to the Accused

[6] This factor favours one trial on both counts. The concern is that, if the similar fact evidence is not admissible (a matter left to the completion of the trial), the trier of fact will be influenced by the fact there are multiple allegations and apply a lower standard of proof to each crime alleged. This concern is at its highest where the trier of fact is a jury. In a judge alone trial prejudice is diminished by the ability of a judge, by dint of training and experience, to apply the proper standard of proof to each allegation without reference to the other. As the Ontario Court of Appeal recently said in R. v. Tsigirlash, 2019 ONCA 650 at paragraph 38: "To be sure, some of the factors in the analysis relevant to an assessment of prejudice may have an attenuated influence in cases where the similar acts are restricted to other counts in a multi-count indictment, especially where the case is tried by a judge sitting alone. In such cases, the risks of moral prejudice and reasoning prejudice are significantly diminished". More dramatically Justice Watt has described the risk of prejudice in a judge alone trial on a multi count indictment as follows: "In large measure, the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi-count indictment reduce significantly, if not to the vanishing point, the virus of reasoning prejudice."

R. v. MacCormack, 2009 ONCA 72

The Legal and Factual Nexus Between the Counts

[7] There is a clear legal and factual nexus between the counts. Both concern allegations of sexual assault by the defendant during chiropractic treatment at the same clinic. Both are women he interacted with at A.H. while he was a patron there. The allegations are similar, though a final determination of the power of that similarity must be left to a consideration of the similar fact application anticipated to be argued at the completion of the trial evidence. This factor also favours a single trial.

The Complexity of the Evidence

[8] Two allegations of sexual assault during a chiropractic treatment. The issues are not complex. The case requires assessments of credibility and reliability of the evidence of two to three witnesses to determine if the evidence proves guilt beyond a reasonable doubt. The defendant could choose to testify as well but this does not complicate the case much more, such evidentiary analysis is the bread and butter of this court's work. The only added complexity is the similar fact application but no additional witnesses are likely required. The case is not complex, so this factor favours a single trial.

Whether the Accused Intends to Testify on One Count but Not Another

[9] The defendant asserts, through submissions of counsel, that he may testify in response to the allegations of B.Q. but may not in relation to the evidence of S.C. He submits that the statements of each found in the application record disclose that S.C.'s anticipated evidence is likely far weaker than that of B.Q. It is submitted that S.C. discloses her memory is foggy about some of the issues surrounding the allegation, not central issues but sequencing issues about who was present in the clinic and what order things happened in. As well they point to inconsistencies amongst the several statements contained in her formal police interview, a diary produced after a s. 278 application, and letters sent to B.Q's lawyer in support of B.Q's claim for civil damages for the alleged assault on her.

[10] Is there a reasonable basis to believe he will testify on one count but not the other if an order for separate trials is granted? This is difficult to forecast at this juncture. The defendant does not have to commit or undertake to testify on one allegation but not the other. The court is left to assess the evidence and submissions to determine if such a claim is objectively justifiable in this case. The defence is likely to be a denial of the actus reus in each case, that the Crown has failed to prove the actus reus beyond a reasonable doubt. It is possible, that as the evidence unfolds, the defendant would choose to testify in response to B.Q's evidence and not the evidence of S.C. In my judgment that possibility does not rise to objective probability. The allegation made by S.C. is not so weak that that it would result in a choice to testify in one separate trial but not the other. This factor only weakly favours separate trials.

The Possibility of Inconsistent Verdicts

[11] This factor is not applicable in this case as each transaction is separate and cannot result in inconsistent verdicts. As it is a non-factor it plays no part in the analysis.

The Desire to Avoid a Multiplicity of Proceedings

[12] If separate trials are ordered this would result in a similar fact application in each case, extending the time required to complete each case. One similar fact application based on the evidence heard in a single trial would be turned into two applications considering extraneous evidence from the now separated allegations. If the Crown is successful in both cases, each complainant would be required to testify in two separate proceedings. Where prejudice is nearing the vanishing point judicial economy strongly favours a single trial where the complainants testify once and a multi count similar fact argument is considered in final submissions on the evidence called at trial.

The Use of Similar Fact Evidence at Trial

[13] The Crown will bring a similar fact application to assist in proof that the crimes happened and to rebut any suggestion the alleged touching of the vaginal area was accidental or incidental to proper chiropractic treatment. Without ruling on the issue, the exercise is to determine as a preliminary matter whether the evidence is possibly admissible. If so, this factor favours a single trial. If the evidence is not possibly admissible separate trials are favoured.

[14] Many of the similarities submitted by the Crown fall in the generic similarity category and do not rise to the distinctive similarity standard required to overcome the presumptive inadmissibility of this type of reasoning. However, in my view the evidence is possibly admissible on the preliminary record before me. The combination of the similarity of the words alleged to be used by the defendant justifying an incursion into the vaginal area during the treatment, the nature of the touching alleged in the course of otherwise appropriate treatment and the request to either not report the matter or an admission the touching alleged was outside the scope of regular chiropractic treatment coalesce into possibly admissible similar fact evidence.

[15] Collusion or collaboration can rob similar fact evidence of its probative value. It attacks the touchstone of the probative value of the evidence: the improbability of coincidence. The defence argues that the similar fact evidence is tainted by unconscious influence which is enough to make it inadmissible. S.C's anticipated evidence is tainted by her knowledge of the specific allegations made by BQ, as communicated to her through an intermediary S. A., a potential witness in this case. The converse is not true, B.Q., on this preliminary record, had no knowledge of the allegations made by S.C. before she reported the sexual assault allegation to the police. There is some potential for the issue of contamination or unconscious tainting to affect the Crown's ability to displace the presumptive inadmissibility of the similar fact evidence in a separate trial concerning S.C's allegation. The argument is not so strong at this preliminary stage to say that the Crown's similar fact application cannot possibly succeed. Thus, weighing all factors relevant to the similar fact application to be brought in this case, I find the evidence is possibly admissible, so this factor favours a single trial.

The Length of the Trial Having Regard to the Evidence Being Called

[16] This will be a relatively short trial on a two count information. An order for separate trials would result in two fairly short trials. The information is not so overloaded with allegations that it will result in a lengthy trial where a severance order would result in several more manageable trials. This factor favours a single trial.

The Potential Prejudice to the Accused with Respect to the Right to Be Tried Within a Reasonable Time

[17] There is no Jordan application anticipated in this case, whether severance is ordered or not. The defence have submitted they will waive any delay occasioned by a severance order in their favour. This is a non-factor in this case and therefore does not affect the analysis.

Conclusion

[18] Having regard to all the factors, and in considering whether the interests of justice dictate separate trials, I find the defendant has failed to establish that the order requested is warranted. Justice can be delivered in a single multi count trial. The risk of prejudicial reasoning is very low in this judge alone trial. The similar fact application is possibly admissible. The only factor favouring severance is the weak possibility that the defendant would choose to testify in one trial but not the other. Trial on the information as currently framed is ordered on the schedule currently contemplated.

November 5, 2019

Justice Anthony F. Leitch