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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2023 01 10 Court File No.: Brampton Y 21 222

BETWEEN:

HIS MAJESTY THE KING

— AND —

I.M.B.

Before: Justice G.P. Renwick Heard on: 10 January 2023 Reasons for Judgment released on: 10 January 2023

Counsel: B. Jackson, for the Prosecution D. Finlay, for the Young Person I.M.B.

Ruling on Severance Application

RENWICK J.:

INTRODUCTION

[1] The Young Person is set to begin his trial tomorrow. He is charged in a seven count Information with sexual offences allegedly committed several years ago upon his three stepsisters, I.C., O.C., and R.C.

[2] This Application is brought to sever the single count in relation to I.C. from the trial held on the remaining six counts. From his perspective, prejudice to the Young Person, the lack of any legal or factual nexus between the counts, and the Young Person’s intention to testify solely in relation to the allegation made by I.C. strongly militate in favour of severance.

[3] The prosecution opposes the application for severance given the Applicant’s alleged failure to establish on a balance of probabilities that severance is required in the interests of justice. As well, in consideration of the legal and factual nexus between the allegations and the prosecution’s intention to bring a cross-count similar fact application, severance is said to be wholly inappropriate.

[4] 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 several hours considering the issues in preparation for this Application.

DISCUSSION

[5] 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 when severance of counts is sought under s. 591(3) of the Criminal Code the “overarching criteria” are the interests of justice. [1]

[6] The Supreme Court has provided a non-exhaustive list of factors to consider. [2] It is clear in R. v. 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.” [3]

[7] The parties in the case at bar agree that several of the factors are either neutral or do not require severance in this case. Both sides agree that complexity, 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 additional factor, beyond those enumerated in Last, that could affect the interests of justice analysis.

[8] Of the factors I must assess, I can rely upon the dichotomy suggested by Justice Deschamps in the Last decision: truth seeking interests versus benefits to the administration of justice. [4] 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 (judicial or witness convenience) determinants.

[9] It appears 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 or administrative convenience.

General Prejudice

[10] Prejudice refers to the risk that the trier of fact will improperly use evidence from one complainant to bolster the evidence of another. Or the risk that the trier may impute a general bad character on the part of the defendant and apply this bias to all allegations.

[11] 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., 2012 ONSC 6603 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.

[12] 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.

[13] Furthermore, I am not convinced that the allegations are so disparate in terms of their seriousness that there is a risk that the more serious allegations in respect of R.C. and O.C. will taint the court’s consideration of the less serious allegation made by I.C. I agree with the prosecution that the alleged attempt to sexually assault I.C. while she was asleep increases the seriousness of this allegation.

[14] On the basis of the logic suggested by the Applicant, severance is better suited to the case involving O.C. from the other allegations. The allegations made by O.C. are the most troubling while those made by R.C. are similar to the one made by I.C.

[15] If this factor favours severance, it does so only marginally.

The Legal and Factual Nexus of the Counts

[16] The Young Person submits that the allegations do not involve one complainant in the case alleged by another and each is “separated by years, though there is some overlap.” But for count 7 (involving a sexual assault alleged by R.C. in 2018), the allegation made by I.C. has a direct temporal overlap with counts 4-6 or a proximal one separated by months for counts 1-2.

[17] There is some factual nexus given the relationships of the witnesses to each other and the Young Person, the circumstances of the alleged assaults (same location, similar timing of day), and the connection between the child welfare investigation commenced by I.C.’s disclosure and the timing of her discovery of the allegations eventually made by O.C. and R.C. The exploration of possible motives to fabricate, collusion, or tainting may well require the trier of fact in a severed case to hear from I.C. during the trial involving O.C. and R.C.

[18] The parties agree that although there are (minor) similarities in the narratives of the three complainants, there is no factual nexus that joins the three sets of allegations. Other than possibly calling the children’s mother and the child welfare social worker who interviewed all of the parties, there are no witnesses in common for the prosecution of each count.

[19] In terms of any legal nexus, the Defendant’s argument is categorical: there is no legal nexus joining the allegations.

[20] From what is known by the court, the Defendant never provided a statement to the police about these allegations. It is difficult to know with certainty whether the Young Person would maintain a similar defence for all allegations (it never happened) or raise a consent-based defence which is only available for the allegations involving I.C. (The Young Person submits that based on his age and the ages of the complainants at the time of the allegations, s. 150.1(2) of the Criminal Code could apply in respect of I.C.)

[21] 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.

Risk of Inconsistent Verdicts if Severance is Ordered

[22] The Young Person says this risk is non-existent. The prosecutor disagrees. I am dissatisfied that either party has satisfied me one way or the other. As such, this factor is neutral.

Testimonial Intention and Tactical Considerations

[23] The Supreme Court characterized this concern in R. v. 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. [7]

[24] 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. [8]

[25] In that case, the Supreme Court agreed that there existed an objectively justifiable rationale for Mr. Last 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 M.A.'s apartment and committed the assault. Such a testimonial outcome was discernable at the time of the severance application. [9]

[26] This concern propelled the main thrust of the Defendant’s submissions for severance: he will be prejudiced in controlling his defence by dismissal of the Application. It was argued that refusing severance interferes substantially with the Young Person’s trial tactics in four respects. First, the Young Person asserts a possible intention to testify respecting one set of allegations but not necessarily the other(s). (Interestingly, it is unclear from the submissions about which set of allegations the Young Person may testify.) Second, the Defendant apparently apologized to I.C., but not the other two complainants. Third, the Defendant could assert a defence of consent for the allegation made by I.C. which is unavailable to him for the other allegations. Last, the Young Person would not necessarily call the child welfare social worker in the trial involving only O.C. and R.C.

[27] When pressed, this submission failed to satisfy the court that it has any merit. Other than a bald assertion that different evidentiary concerns raise different tactical considerations, there was no concrete rationale supporting this submission.

[28] In the end, I find that the theoretical possibility that a severed trial may require different tactical considerations than the status quo favours severance, but only slightly.

Avoiding a Multiplicity of Proceedings

[29] This factor is minor in this case. It is possible that a severed trial may involve one or more witnesses being called to testify in two, rather than one, trials. Given the possibility that I.C. may be required to testify in the trial of the allegations involving O.C. and R.C. (as suggested above), and the undesirability of requiring sexual assault complainants from exposure to multiple proceedings, this factor favours the status quo.

Similar Fact Application Viability

[30] The reasons of Justice Hennessey in J.C.L., supra, at paras. 22-30 and Justice Kurke in R. v. G.D., 2018 ONSC 1173 at paras. 38-40 make it clear that I cannot prejudge the possible cross-count similar fact application that is anticipated to 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. There appears to be no issue that if severance is granted, the prosecution is precluded from bringing a similar fact application. [13]

[31] The Defendant takes issue with the prosecution’s characterization that the similar fact Application appears strong. He submits that the Application would not be viable. The Young Person pointed to dissimilarities in the allegations and the lack of any significant or striking similarities that favour granting a similar fact Application.

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

• each allegation involves a similar relationship between the complainant and the Young Person;
• the time periods overlap;
• the timing of the allegations (around bedtime) is similar;
• the allegations occurred in the family home, all in the basement;
• the alleged offences were crimes of opportunity; and
• the Young Person allegedly acted in a predatory way with all of his stepsiblings.

[33] In R. v. Carson, 2010 ONSC 600, 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 ONCA 349, 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 (aff'd 2004 SCC 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., 2009 ONCA 349, 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.

[34] 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., 2018 ONCA 454 reinforces this view.

[35] Despite counsel for the Applicant’s able submissions, I find that there is a marked viability to the similarity of the circumstances and evidence across 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 [15] the probative value may well eclipse any potential prejudice.

[36] This factor significantly favours dismissing the Application.

CONCLUSION

[37] 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 tactical considerations. 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.

[38] 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.

[39] 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: 10 January 2023 Justice G. Paul Renwick