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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Ontario Court of Justice

Date: 2022 05 09 Court File No.: Central East Region: Oshawa Court 20-DV22782

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ALLAN HILL

Before: Justice Peter C. West

Severance Application

Heard on: April 1, 2022 Reasons for Judgment released on: May 09, 2022

Counsel: Ms. Saunders................................................................. counsel for the Crown Mr. M. Capotosto..................................... counsel for the defendant Allan Hill

WEST J.:

Introduction

[1] Allan Hill is facing the following charges:

a) Count 1: Between March 1, 2020 and March 31, 2020, did commit a sexual assault on J.G., contrary to s. 271 of the Criminal Code of Canada;

b) Count 2: Between. March 1, 2020 and March 31, 2020, did commit an assault on J.G., contrary to s. 266 of the Criminal Code of Canada;

c) Count 3: Between March 1, 2020 and March 31, 2020, did commit an assault on J.G., contrary to s. 266 of the Criminal Code of Canada;

d) Count 4: On or about May 8, 2020, did commit a sexual assault on J.H., contrary to s. 271 of the Criminal Code of Canada; and

e) Count 5: On or about November 16, 2020, did commit a sexual assault on A.S., contrary to s. 271 of the Criminal Code of Canada.

[2] On September 2, 2021, after a judicial pre-trial on August 3, 2021, trial dates of September 7, 8, 9, 12, 13 and 14, 2022, were set by defence and Crown. Pre-trial motions were set for February 3, 2022 (1/2 day Severance Application); May 10, 2022 (Full day Stage 1 for s. 278 Application and Motion for Directions respecting Records) and June 14, 2022 (1/2 day Stage 2 for s. 278 Application). The Severance Application did not proceed because of illness of one of the parties. on February 3, 2022. The Severance Application also did not proceed on February 10, 2022, as a result of illness of another party to the proceeding. I heard oral submissions on the Severance Application by Zoom on April 1, 2022, and I reserved, indicating I would provide written reasons prior to our next date of May 10, 2022.

[3] Both the Applicant and the Crown agree with the facts set out in the applicant’s factum, paragraphs 1 to 5 and I do not intend to repeat them in my reasons. Mr. Capotosto provided me with the transcripts of each of the complainant’s police statements, which I have reviewed. Each of the complainants were involved in a romantic relationship with the applicant at different times during 2020, (between March and November 2020) and the allegations arose within that context. The romantic relationship involved consensual sexual interaction between each of the complainants and the Applicant just prior to the complained of allegation, which in each case alleged attempted or completed anal intercourse. It is apparent from the complainants’ police statements that the complainants were previously unknown to each other but became aware of each other’s involvement with the applicant just before they each contacted the police in December 2020. It is the Applicant’s submission that the contact between each of the complainants, with each other prior to providing their police statement demonstrates collusion and detrimentally impacted what each complainant alleges the Applicant did.

Analysis

[4] Although any number of counts for any number of offences can be included in the same Information, s. 591(3) of the Criminal Code of Canada provides that an accused person can make application to have such counts severed where the court is satisfied that the interests of justice so require. The onus is on the accused to establish on a balance of probabilities that the ends of justice require this: see R. v. McNamara (No. 1), [1981] O.J. No. 3254 (C.A.), at para. 118, R. v. Arp, [1998] 3 S.C.R. 339, at para. 52 and R. v. Jeanvenne, 2010 ONCA 706, [2010] O.J. No. 4537 (C.A.), at para. 26. Beyond the phrase, “Interests of justice” s. 591(3) (a) does not reveal the factors or considerations which a trial judge must take into account, R. v. Durant, 2019 ONCA 74, [2019] O.J. No. 556 (C.A.), at para. 71. Mr. Capotosto has brought an application for severance so that there will be three separate trials, one respecting each of the complainants if severance is granted. 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” R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 16. ( See also R. v. Durant, supra, at para. 72; R. v. R. C., [2020] O.J. No. 933, at para. 33; and R. v. Moore, [2020] O.J. No. 5591 (C.A.), at para. 11.) In R. v. Moore, supra, the Court of Appeal held, “The ‘interests of justice’ are not commensurate with the ‘interests of the accused’, or the accused’s perception of the fairest trial possible.

[5] The Supreme Court in R. v. Last, supra, identified the “obvious risk” when multiple counts are tried together and the weighing of the different factors to ensure a reasonable balance occurs between the risk of prejudice to the accused and the public interest in a single trial.

…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.

[6] When determining whether to order severance, the Supreme Court in Last identified a non-exhaustive list of factors for judges to consider how the interests of justice may be served in a particular case. These factors include:

(a) the general prejudice to the accused;

(b) the legal and factual nexus between the counts;

(c) the complexity of the evidence;

(d) whether the accused intends to testify on one count but not another;

(e) the possibility of inconsistent verdicts;

(f) the desire to avoid a multiplicity of proceedings;

(g) the use of similar fact evidence at trial;

(h) the length of the trial having regard to the evidence to be called; and

(i) the potential prejudice to the accused with respect to the right to be tried within a reasonable time;

(j) the existence of antagonistic defences as between co-accused.

[7] It is my intent to address each of the factors that is relevant to this proceeding.

Prejudice to the Accused

[8] The Court must be concerned with the risk that an accused’s right to a fair trial on the merits could be impacted by moral and/or reasoning prejudice, as defined in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at paras. 100 and 139. This concern is explained in R. v. J.M., 2011 ONSC 3924, [2011] O.J. No. 3218 (SCJ, Gordon), at para. 8:

There is a risk of prejudice to an accused when evidence properly admissible on one count may affect the verdict on another count. Such prejudice may amount to what has been referred to as "reasoning prejudice", that is, evidence properly admissible on one count might raise sentiments of revulsion and condemnation that deflect the trier from a rational dispassionate analysis of the case. Such prejudice might also amount to what has been referred to as "moral prejudice" or propensity reasoning, that is, evidence properly admissible on one count may lead the trier to conclude that the accused has discreditable tendencies.

[9] Mr. Capotosto argued the risk of prejudice in this case is very high. He refers to the fact that “the existence of three complainants who had previously had no relation to each other alleging three separate incidents of sexual assault creates the risk that the credibility of each complainant will be bolstered.” He raises a concern that if the Applicant is not credible in respect of the allegation of one of the complainants, the trier of fact might also presume that the Applicant is not credible with respect to the other complainant’s allegation. The Crown has advised that she intends to bring a similar fact count to count application, which if the Crown’s application is allowed I anticipate the Crown submitting that the similar fact evidence would be relevant to the assessment of each complainant’s credibility.

[10] It is the Crown’s position that the risk of prejudice is not a factor in this case, as the accused has elected to be tried by a judge without a jury. She submitted the risk of prejudice is minimal because judges are trained in the correct and proper use of evidence. There are many decisions involving judge and jury trials where, despite the concerns raised concerning the risk of prejudice, severance was not granted, as it was determined those concerns could be addressed by proper instructions to the jury ( see R. v. Chaulk, 2012 ONSC 3169, R. v. Minister, 2012 ONSC 1040, and R. v. L.S., 2012 ONSC 6205). It is my view therefore that the risk of prejudice is substantially diminished, if it exists at all, in a judge alone trial. In R. v. MacCormack, 2009 ONCA 72, at para. 69, the Court of Appeal in dealing with moral and reasoning prejudice as they pertain to similar fact applications, held that “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.” In R. v. B. (T.), (2009), 2009 ONCA 177, 95 O.R. (3d) 21 (C.A.), at para. 33, the Court of Appeal held that moral prejudice is not a significant concern in a judge alone trial.

[11] Consequently, given the factual background and nature of the allegations in this case, it is my opinion that there is no real danger that moral or reasoning prejudice will be factors in this trial. This does not mean a judge in a judge alone trial does not need to be vigilant and aware of the potential danger of the risk of prejudice in a multi-count information involving different complainants. In my view a judge’s experience and training to apply the applicable rules of evidence will significantly reduce the risk of prejudice to the Applicant.

Factual and Legal Nexus

[12] The Applicant argued there was very little factual or legal nexus between the three complainants’ allegations. He conceded all three complainants allege a sexual assault and the three complainants at some point “tracked each other down” such that they all spoke to each other and reported the allegations to the police with two days of each other. He submits the factual nexus is extremely thin. The Applicant points to the different time periods, the allegations are more than a month or more apart. Mr. Capotosto argues that the circumstances of the allegation of sexual assault involving J.G. is quite different from J.H. and A.S. and points to the two additional charges of assault facing the Applicant.

[13] The Crown submitted there was a strong factual nexus in this case in the way the allegations were disclosed to the police, where the three complainants previously unknown to each other, all reported the alleged sexual assaults after speaking with each other about their past relationships and experiences with the Applicant. The Crown relies on the case of R. v. E.S., [2000] O.J. No. 405 (C.A.) where the Court of Appeal found there was a factual nexus as the allegations were disclosed at the same time and in similar circumstances.

[14] Further, the Crown points to the fact that all of the allegations arose in the context of a romantic relationship between the Applicant and each complainant. The Crown submits the sexual assault allegation arose during some form of consensual sexual activity. In the case of J.H. and A.S. the sexual assault occurred during consensual vaginal sexual intercourse and in the case of J.G. the alleged sexual assault occurred at J.G.’s home after the Applicant came to her residence to address relationship issues. After consensual kissing, the Applicant advised J.G. he was going to “make her pay”, which the complainant said in her police statement she interpreted as the Applicant indicating their sexual interaction was going to be perhaps “rougher.” This was said to J.G. by the Applicant before he forced anal intercourse on her.

[15] The Crown also submits there is a nexus in time, although the alleged sexual assaults are months apart, this is a result of the fact the allegations arose in the context of a romantic relationship and the complainants’ relationships with the Applicant did not overlap.

[16] Mr. Capotosto relied on R. v. Last, supra, to argue that the while the charges were similar the theory of the defence was very different: in Last consent was at issue respecting one allegation and identification was the issue in the other. The Applicant argued that in one allegation (A.S.) the defence would be honest but mistaken belief in consent and in the other two allegations, in the case of J.G., the incidents of assault and sexual assault never happened and in the case involving J.H., the defence would likely take the position that anal sex with J.H. was never attempted. Mr. Capotosto argues that the incidents are separate incidents involving separate women and relationships and the judge will not need to know about one in order to understand the others.

[17] The Crown submits there is sufficient legal nexus between the counts to warrant the charges being tried together. A similar fact application is intended to be brought by the Crown in relation to the three counts of sexual assault on a count to count basis if severance is not granted. Even if severance was granted the Crown indicated her intention to bring a similar fact application on each trial, which would result in each complainant potentially testifying on three occasions.

[18] I will address the issue of the Crown’s similar fact application in more detail later in my reasons. It is my view that this factor weighs in favour of not granting severance.

Complexity of the Evidence

[19] Based on my review of the materials put before me by counsel it is my view that the evidence will not be particularly complex in this trial and in my view this is not a compelling reason to grant severance. Further, even if the case involved the presentation of complex evidence, it is my view that because this is a judge alone trial this factor would not demonstrate the need for separate trials.

The Applicant’s Intention to Testify

[20] This factor is potentially a significant consideration in determining whether the interests of justice require separate trials. In R. v. Last, supra, at para. 25, the Supreme Court stated:

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.

[21] Mr. Capotosto, in his factum and in his oral submissions made it clear that the Applicant might not testify on all three sets of charges and indicated it would, in large part, depend on the credibility of each complainant. In R. v. Last, at para. 27, the Court made it clear that the intention of a defendant to testify on some counts but not others is but one factor to be balanced with all the others and is not determinative in a severance application.

[22] In this case Mr. Capotosto has not stated an intention by the Applicant of not testifying respecting the allegations of any of the complainants. Mr. Capotosto submitted the Applicant would testify respecting A.S. given the defence theory is that A.S. consented to the sexual contact or that the Applicant had an honest by mistaken belief in consent on the part of A.S. His decision whether to testify respecting the allegations of J.G. and J.H. is less settled. The Crown argued that this unsettled intention does not weigh heavily in favour of severance. Ms. Saunders submitted, “as was the case in Last, the likelihood that the Applicant may feel strategically compelled to testify in relation to the allegations pertaining to all three complainants should not be discounted. It is likely the Applicant may choose to testify to advance his theory of the case.”

[23] The Supreme Court in R. v. Last, at para. 26, made this observation as well:

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.

[24] Recently the Ontario Court of Appeal addressed this issue in R. v. Durant, 2019 ONCA 74, [2019] O.J. No. 556, (C.A,) at para. 75, and held:

As a general rule, an accused's asserted desire to testify on one or more counts but not on another or others is accorded substantial weight in the severance analysis. But it must be more than a mere assertion. To give substance to the claim requires that there be some objective reality to it based on the evidence reasonably anticipated at trial. This factor is not dispositive and may be overpowered by other factors: R. v. Steele, 2006 BCCA 114, 206 C.C.C. (3d) 327, at paras. 15-16, affirmed on other grounds, 2007 SCC 36, [2007] 3 S.C.R. 3.

[25] This factor generally favours severance given the importance of a defendant’s ability to control his defence; however, it can be counterbalanced or outweighed by other factors and circumstances that demonstrate the interests of justice require a joint trial. There is very little to analyze this factor on the record before me on this application, as the Applicant has not articulated what he may or may not want to testify about. It is my opinion that the position presented by Mr. Capotosto is no more than an assertion without any substance that would permit an assessment of Mr. Hill’s intention of whether or not to testify on some but not all of the counts. It is my view therefore that this factor, at best, is neutral on this application.

The Possibility of Inconsistent Verdicts

[26] If severance were granted the Crown has advised she will be bringing a similar fact application on each trial. In my view this does raise the possibility of inconsistent verdicts as it relates to the issue of the Crown’s similar fact application given the fact that if severance is granted there will be three separate trials.

The Desire to Avoid a Multiplicity of Proceedings

[27] This factor is exacerbated by the Crown’s intention to bring an application for the admission of similar fact evidence. If the counts relating to the three separate complainants were severed, or if only the counts relating to J.G. were severed, each of these complainants would be required to testify potentially at two or three separate trials concerning their allegations. One of the reasons for this relates to the allegation by the Applicant of collusion between the three complainants prior to their providing statements to the police. In my view this factor favours a joint trial on all three complainants allegations.

The Use of Similar Fact Evidence at Trial

[28] As I indicated the Applicant has indicated that collusion and concoction will be live issues at this trial. The Crown is bringing a similar fact application to permit evidence to be considered count-to-count. At this stage of the proceedings I am only to consider whether the similar fact evidence is viable, and citing R. v. Carson, [2015] O.J. No. 2528 (SCJ), per Hill J. at paras. 37-42, noted that “viability” is a “possibly admissible” standard.

[29] Justice Hill in Carson, relied on the dissent of Finch, C.J.B.C. in R. v. Blacklaws, 2012 BCCA 217, [2012] B.C. J. No. 980 (C.A.) (aff’d by the Supreme Court of Canada in 2013 SCC 8, [2013] 1 S.C.R. 403) where he stated at para. 42:

...The appellant is correct in saying that the test for admitting similar fact evidence is more stringent, and requires a closer legal and factual nexus, than the test for determining whether multiple counts should be joined or severed. However, the trial judge was not required to actually apply the test for admitting similar fact evidence during his deliberations on the severance application: he only had to assess whether it could "possibly" be met in the future.

[30] Recently, the Ontario Court of Justice in R. v. R.C., O.J. No. 933 (C.A.), cited Blacklaws, with approval, and indicated assessing the viability of a similar fact application on a severance application can be tricky, given that the burden to achieve severance is on the defence, while the burden to admit similar fact evidence is on the Crown. As a result the exercise must be approached with great care (see also R. v. Sahdev, 2017 ONCA 900, at para. 49). “The severance application judge need only assess whether the anticipated similar fact application has some possibility of success, or whether it is reasonable to consider that it might succeed,” R.C., at para. 39.

[31] As I indicated, Mr. Capotosto provided me with transcripts of the police statements provided by the three complainants. I am only required to determine if the Crown's similar fact application is viable in the sense of the evidence being "possibly admissible." I am satisfied that this standard has been met. All three complainants were in a romantic relationship with the Applicant. The police statements of each complainant reflect that the alleged sexual assault occurred during some form of consensual sexual activity when the Applicant was under the influence of some substance: alcohol and/or cannabis. The nexus in time between the allegations is explained by the fact the context they occurred in, which were romantic relationships, which did not overlap. Further, the defence alleges that although the three complainants did not previously know each other, they became aware of each other’s existence, spoke prior to providing their police statements and this provides evidence of collusion on their parts, which negatively impacts their credibility. The Crown argued it would be artificial for the trial of fact to only hear evidence of how one complaint came to light and the circumstances surrounding the disclosure of the allegations provides a strong factual nexus between the counts.

[32] At this stage of the proceedings in my view it cannot be said that the Crown will not possibly succeed on the similar fact application she intends to bring at the conclusion of the evidence on the trial. In my view this is a factor that weighs against severance.

The Length of the Trial

[33] As I expressed to counsel during submissions, it is my view that if severance is granted the three separate trials would require much more court time than has been set for this joint trial. At the first trial the Crown intends to bring the similar fact application and each of the three complainants would be called as witnesses. Mr. Capotosto argued the similar fact application could be argued based on the documentation available without the Crown calling each of the complainants. The difficulty with this submission is the defence claim that the three complainants colluded with each other and that their accounts were detrimentally impacted as a result. In my view the Crown would be required, given this allegation by the defence, to have these witnesses testify and provide viva voce evidence. The first trial in my view would take at least the length of trial currently set for a joint trial – six days. The trial time currently set has included at least three days (one day was for this severance application, which leaves two further days for ss. 276 and 278 applications, in addition, Mr. Capotosto has added an application for directions in respect of some evidence he intends to lead, which he submits does not engage the s. 276 regime) for the different pre-trial applications. If severance was ordered this could mean similar additional time would be required for each trial for these pre-trial applications to be argued. It is my opinion that the combined length of three separate trials would be considerably longer than a joint trial relating to the three complainants’ allegation.

[34] It is my view this factor weighs against granting severance.

The Potential Prejudice to the Applicant With Respect to the Right to be Tried Within a Reasonable Time

[35] The Applicant’s interest in having separate trials must be balanced against the countervailing interest in having his charges tried within a reasonable time. The Applicant was charged on December 7, 2020. The administration of justice has been dealing with the World Wide Pandemic of COVID-19 since March of 2020, which initially caused numerous scheduled trials to be adjourned because of the complete closure of the courts at all levels. Even after arrangements and technology was created to allow for remote court hearings, the delays and backlog created by the initial four month closure of courtrooms to in-person trials and hearings has continued to be compounded by the second wave of COVID-19, followed by a third and fourth wave caused by variants of the COVID-19 virus. The current backlog continues to be affecting the timely scheduling of trials that were adjourned as well as new trials for new matters now before the courts.

[36] There is a significant issue raised at this stage of the proceedings respecting the issue of scheduling trial dates for two additional trials if severance were granted, which would have to be set on dates subsequent to the 6 days set in September 2022. Mr. Capotosto announced for the first time on February 10, 2022, that he intends to bring a s. 11(b) application because of undue delay. The Information setting out the charges facing the Applicant was sworn on December 8, 2020. The current trial dates set by both counsel in September 2022, are just over 20 months after the date the Information was sworn, without analyzing the time period from a review of the various court transcripts, which as of February 10, 2022, had not been ordered. Mr. Capotosto has not indicated his position respecting s. 11(b) and the further delay that clearly would be created by ordering severance, as has occurred in some of the cases where severance has been granted where the Applicant waived s. 11(b) if severance was granted. It is my view that the Jordan ceiling must be considered in balancing the factors to determine if the Applicant has demonstrated on a balance of probabilities that the interests of justice require separate trials. The backlog that has been created by the Worldwide COVID-19 Pandemic must also be considered. In my view this factor weighs against severance being granted.

Conclusion

[37] It is my view that the Applicant has not established on a balance of probabilities pursuant to s. 591(3) of the Criminal Code of Canada that the interests of justice require there to be three separate trials. It is my view after balancing and weighing all of the factors, the public’s interest in a single trial outweighs any risk of prejudice to the Applicant in having a single trial involving the three complainants. The Crown has indicated an intention to bring a similar fact application and I will ultimately have to determine whether they have met their onus on that application. If the similar fact application is not granted it is my view that in a judge alone trial I will restrict the evidence of each complainant to the specific offence alleged and not allow any reasoning or moral prejudice to interfere with my determination of whether the Crown has met its onus of proof and proven each charge beyond a reasonable doubt based solely on the evidence directly admissible on that count. It is my opinion that to order separate trials would lead to the complainants having to testify two or three times, which would lead to a multiplicity of proceedings, create the potential for inconsistent verdicts as it relates to the Crown’s similar fact application, increase the trial length, which because of the lateness of when this severance application was agreed to be argued (the application dates and trial dates were all set in August 2021) and the delays caused to the severance application being argued because of illness to the Crown and the Applicant, both attributed I believe to COVID-19, would result in those additional trials being well outside the Jordan limits. As I found there is an overlapping factual nexus, which arises from the Applicant’s allegation of collusion and its impact on each complainant’s evidence and versions of events. The nexus in time may be months apart, however, this is explained by and is consistent with the fact that the allegations arose in the context of a romantic relationship between the Applicant and each complainant, which did not overlap. The legal nexus potentially arises through the Crown’s similar fact, count to count application.

[38] The Applicant would only indicate the possibility that he might not testify in respect of each allegation and did not, in my view, provide the type of information referred to in Last and Durant, which would have objectively establish a rational for testifying on some counts and not others to assist in my determination and assessment of that factor. I found this factor on the information provided to be neutral. Finally, the risk of prejudice is greatly reduced given this is a judge alone trial.

[39] Considering all of the factors it is my view the severance application must be dismissed as the Applicant has not met his onus.

Released: May 9, 2022 Signed: Justice Peter C. West