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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Date: 2021 04 06 Court File No.: Kitchener 20 Y129 00

Between:

HER MAJESTY THE QUEEN

— AND —

A.S.L., a young person

Before: Justice A. T. McKay

Application heard on: March 31, 2021 Ruling on Application for Severance released on: April 6, 2021

Counsel: Ms. Bain................................................................................................ counsel for the Crown Ms. Mamo........................................................................... counsel for the defendant A.S.L.

McKAY J.:

Introduction

[1] Mr. A.S.L. is charged under the Youth Criminal Justice Act with three counts of sexual assault, and one count of breaching his release terms. Two different complainants, identified as “GR” and “MD”, are involved in the three sexual assault counts. He makes application for severance of the counts related to the sexual assaults on GR from the count related to a sexual assault on MD.

Factual Background

The count involving MD

[2] There was a small party at A.S.L.’s residence on September 20, 2019. A few of the party guests spent the night at his residence, including MD. MD alleges the following. She was intoxicated, having consumed too much alcohol and cannabis and went to sleep alone on a bed in the basement. She woke up in the early morning hours of September 21 on her knees with A.S.L. having vaginal intercourse with her from behind. She told him to stop and tried to flip over but he prevented her from doing so. She is uncertain of whether she suffered a blackout or passed out. The next thing she recalls is waking up next to A.S.L. in bed. She had only met him on one occasion prior to this party.

[3] MD reported the matter to the police and was interviewed on September 21, 2019, and again on September 22, 2019. She spoke with a social worker and a nurse on September 21, and they photographed physical evidence including bruises and “hickies” on her body.

The counts involving GR

[4] Prior to A.S.L.’s arrest on the count involving MD, the other people in attendance at the party were interviewed, including GR. On September 23, 2019 she was interviewed and simply described what took place on the night of the party. She made no allegations of being assaulted by A.S.L. at any time. On October 2, 2019, she was interviewed by police for a second time. During that interview, she alleged that she had been sexually assaulted by A.S.L. on two occasions between February 1 and June 30 of 2019. Her allegations can be summarized as follows.

[5] She indicated that she and A.S.L. were friends and classmates at school. She was uncertain of the exact time frame for either incident that she described. On one occasion they had been drinking alcohol and they were in the basement at his residence. They were sitting on a couch. A.S.L. pushed her down and crawled on top of her. He began touching her breasts and hips over top of her clothing with his hands. She told him to stop but he continued. She started to loudly say no, telling him to stop. A.S.L. got up and went to the bathroom. That ended the assault.

[6] She described the second incident which occurred at a movie theatre. The two of them attended a scary movie. She described the theatres being “pretty empty” with no one around them. A.S.L. began to cuddle her, which she did not have an issue with. However, he began to touch her breasts over her clothing and he got an erection. She moved his hand away but he continued to touch her breasts over her clothing. He asked her to touch him and placed her hand on his penis over the top of his clothing. She said no and removed her hand. He pulled down the top of his pants and put her hand on his penis more than once, and she kept removing it. He then masturbated.

Applicable Legal Principles

[7] Trial courts have the discretion to grant severance of multiple accused or multiple counts in an Information. The relevant provisions are set out in section 591 of the Criminal Code. The Crown has a right to exercise discretion in a decision to include separate incidents in one Information. A number of factors generally weigh in favour of trials joining multiple accused or multiple counts, including the desire to use time and resources efficiently, the desire to spare witnesses repeated court attendances, consistency of verdicts and the concept that it is more likely that the full truth will emerge if every alleged participant gives his or her account on one occasion.(See R. v. Crawford (1995), 96 C.C.C. (3d) 481 (S.C.C.). However, severance can be granted where the court is satisfied that the interests of justice so require.

[8] On an application to sever a multicount Information, the overarching criteria are the interests of justice. In R. v. Last (2009), 2009 SCC 45, 247 C.C.C. (3d) 449 (S.C.C.), the court provided a non-exhaustive list of factors which help capture how the interests of justice may be served in a particular case. Those factors include:

1. General prejudice to the accused;
2. Legal and factual nexus between the counts;
3. Complexity of the evidence;
4. Whether the accused intends to testify on one count but not another;
5. Possibility of inconsistent verdicts;
6. Avoidance of multiplicity of proceedings;
7. Use of similar fact evidence;
8. Length of trial having regard to the evidence to be called; and
9. Potential impact on the accused right tried within a reasonable time.

[9] All of the factors must be considered and weighed cumulatively to determine where the balance lies between the risk of prejudice to the accused and the benefits to the administration of justice. As the factors in favour of a joint trial become less compelling, the degree of possible prejudice required to justify severance decreases.

Analysis

Prejudice to the accused

[10] The defence points to the risk of both moral prejudice and reasoning prejudice to an accused when evidence properly admissible on one count is heard with evidence on another count. The risk of moral prejudice relates to the possibility that evidence is taken as proof of bad character. The risk of reasoning prejudice arises from a concern that evidence admissible on one count may be improperly applied to other counts. Those risks are reduced when the trier of fact is a judge sitting alone. However, as noted by the court in R. v. Villeda, 2011 ABCA 85 at para. 18, the risk is not entirely eliminated.

[11] The Crown proposes to try three counts of sexual assault together. The allegations related to GR involved two incidents of inappropriate touching over clothing. One incident includes allegations of exposing himself and placing her hand on his penis. The count involving MD alleges vaginal intercourse with an unconscious teenager incapable of consenting. While all of the allegations are serious, the allegations involving MD is more serious, involving considerations of inflammatory potential identified in R. v. MacCormack, 2009 ONCA 72, O.J. No. 302 at para. 68.

[12] In this case, the risk of prejudice favours severance.

Factual and legal nexus

[13] The defence refers the court to the following passage from R. v. J.C.L., 2012 ONSC 6603, [2012] O.J. No. 5533 at paras. 18-19:

“Similar facts are not the same as a factual nexus. The concept of factual nexus includes inter alia whether there would be substantially overlapping transactions… Nexus connotes connection, bond or link… A factual nexus often refers to a continuity of events, time and means. Where there is a clear factual nexus, the logic of a joint trial is more compelling than where there are multiple sets of events, linked together only by the identity of the person charged and the place where the events occurred.”

[14] The two sets of allegations involve different complainants with incidents occurring in different locations and circumstances. The incident involving MD is separated in time from the incidents involving GR by anywhere from three to nine months. The substantial evidence does not overlap in any significant way. The only common witness is potentially GR, who was present at the party but has no direct knowledge of the allegations related to MD.

[15] The lack of a connection or elements of overlapping transactions favours severance.

Complexity of the evidence from one count but not another

[16] Neither set of allegations involves complex evidence or expert evidence. These are straightforward allegations of sexual assault which will largely involve assessments of credibility and reliability of the evidence.

[17] This is a neutral factor on this application.

The risk of inconsistent verdicts

[18] The facts underlying both sets of charges are distinct from each other. They deal with different offences involving different complainants on different dates. There is essentially no overlap between the two sets of allegations, eliminates the risk of inconsistent verdicts.

[19] This is a neutral factor on this application.

Intention of the accused to testify

[20] The defence submits that it is possible that A.S.L. will choose to testify with respect to some counts, but not others. This raises a concern regarding his ability to control his own defence without being hindered by the Crown’s decision to try all counts together. The incident involving MD resulted in an immediate complaint, and physical evidence of bruising and “hickies”. That may raise different tactical considerations than the allegations made by GR. There may be a rationale for A.S.L. to want to testify with respect to some but not all counts.

[21] This factor does not weigh against severance.

The desire to avoid a multiplicity of proceedings and the length of trial

[22] Given the limited factual connection between the counts and lack of overlap in the evidence, the benefits of trying the counts together are limited. Given the minimal overlapping evidence, severance would add little if any time to the total trial time.

[23] These factors do not weigh against severance.

Similar fact evidence

[24] The Crown indicates that it intends to bring an application for similar fact evidence. The defence indicates that the evidence involving the various counts falls well short of the required “high degree of similarity”, and accordingly a similar fact application would not be successful. The defence also points to the decision in R. v. J.C.L. at para. 42 where the court indicated: “ the mere intention of the Crown to bring a similar fact evidence motion should not in itself be sufficient to tip the balance in favour of a single trial.”

[25] Based upon what I have before me on this application, it is a live issue as to whether the Crown would be successful if it brings a similar fact application. The stated intention of the Crown to bring a similar fact evidence application weighs in favour of having all counts tried jointly but is not determinative.

Prejudice to accused on the right to be tried within a reasonable time

[26] This is a matter where an application under section 11(b) of the Charter alleging undue delay has already been filed and is scheduled to be heard on April 19, 2021. There are currently five days set for trial in June. There is an additional day in May set for pretrial applications which have now been abandoned, leaving a total of six days available for trial. If severance is granted, it is difficult to envision more than six days of trial time in total being required for two trials.

[27] This factor does not weigh against severance.

Conclusions

[28] There is little to be gained in terms of efficiency by trying these matters together. Indeed, the Crown acknowledges that, if not for the Crown’s intention to bring an application to lead similar fact evidence, separate trials may be appropriate. In my view, there is risk of prejudice to A.S.L. by having all counts joined. In balancing the relevant factors, I find that he has met the burden of establishing that the interests of justice require severance of the counts involving GR from the count involving MD.

Released: April 6, 2021 Signed: Justice A. T. McKay