Ontario Court of Justice

Date: 2024 11 29 Court File No.: Hamilton 998 23 47105504

BETWEEN:

HIS MAJESTY THE KING Respondent

— AND —

JOSHUA BELOVARI Applicant

Severance Application

Before: Justice Davin M.K. Garg

Heard on: November 25, 2024 Ruling delivered on: November 25, 2024 Reasons released on: November 29, 2024

Counsel: Elise Quinn & Rose Branton........................................................... counsel for the Crown Dragi Zekavica............................................... counsel for the applicant Joshua Belovari

GARG J.:

Overview

[1] Conducting a single trial for offences that relate to multiple events can save court resources. The efficient use of court resources is vital to the proper functioning of the criminal justice system. But efficiency must not come at the cost of an accused’s right to a fair trial.

[2] The applicant allegedly drove dangerously. About one month later, he allegedly drove dangerously again and criminally harassed the driver of a motor vehicle. The Crown eventually laid the charges for both events in one information. The applicant seeks to sever the counts, resulting in a separate trial for each event.

[3] I denied the application for severance at the conclusion of the hearing. I now provide my reasons for that decision. I am satisfied that the interests of justice do not require severance. A single trial best serves societal interests without creating meaningful prejudice to the applicant.

Background

[4] The applicant is charged with three counts on one information. He seeks to sever count 1, which charges dangerous driving on June 28, 2023, from counts 2 and 3, which charge dangerous driving and criminal harassment on July 31, 2023.

[5] Some understanding of the allegations is required to evaluate the severance application. The parties agreed that I could rely on the allegations summarized in their respective factums as part of the evidentiary foundation on this application. None of the following allegations have been proven; the facts will not crystallize until evidence is called at trial.

The first alleged event

[6] An off-duty officer saw a brown Hyundai Santa Fe with license plate CVPK 620 on the road in Stoney Creek. The driver’s manner of driving is said to have been dangerous and erratic. At one point during the event, the officer saw the driver look directly at him, make eye contact, begin laughing, and veer towards the passenger side of the officer’s car. The officer followed the Santa Fe and was able to describe the driver’s appearance when he entered a Tim Hortons. The officer later consulted an arrest photo of the applicant and recognized him as the driver.

The second alleged event

[7] A civilian was driving with a passenger on Queen Elizabeth Way. They noticed the Hyundai Santa Fe with the same license plate being driven erratically behind them. The civilian observed what is said to be a series of dangerous and erratic manoeuvres. At one point, the civilian noticed the driver of the Santa Fe stopped beside her and staring at her with a blank expression on his face. The driver followed the civilian to her home. The civilian’s mother confronted the driver, who responded, “Call the police if you have a problem”. The passenger in the civilian’s car identified the applicant from a photo lineup.

Law

[8] The application for severance is governed by s. 591(3)(b) of the Criminal Code. The Court may order severance where it is satisfied that the interests of justice so require. The interests of justice encompass the accused’s right to be tried on admissible evidence, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The risk when counts are tried together is that the evidence admissible on one count will influence the verdict on the others: R. v. Last, 2009 SCC 45 at para. 16.

[9] The Court in Last at para. 18 outlined a list of non-exhaustive factors to consider on a severance application. None of these factors are determinative; the application judge must conduct a balancing exercise:

• the general prejudice to the applicant;
• the legal and factual nexus between the counts;
• the complexity of the evidence;
• whether the applicant intends to testify on one count but not another;
• the possibility of inconsistent verdicts;
• the desire to avoid a multiplicity of proceedings;
• the use of similar fact evidence at trial;
• the length of the trial having regard to the evidence to be called;
• the potential prejudice to the applicant with respect to the right to be tried within a reasonable time; and
• the existence of antagonistic defences as between co‑accused persons.

Analysis

[10] I find that the relevant factors weigh against granting severance. I will focus on the factors that were emphasized by the parties in their written and oral submissions.

Similar fact evidence

[11] A significant factor weighing against the severance application is the Crown's stated intention to bring a “count-to-count” similar fact application: Last at para. 33. My task at this stage is not to assess whether the similar fact application will ultimately succeed. The trial judge will adjudicate that application after hearing all the evidence at the end of the Crown’s case. My task is to assess the likelihood of success and factor that into my assessment of the severance application: Last at para. 34; R. v. Arp, [1998] 3 S.C.R. 339, at para. 52. There is also jurisprudence supporting a lower standard of assessing whether there is "some possibility" that the application will succeed: R. v. Blacklaws, 2012 BCCA 217 at para. 43 per Finch C.J.B.C. [1] By virtue of considering whether the application might succeed, I must also consider whether it might be denied: Blacklaws at para. 44.

[12] The Crown advances that the similar fact evidence is relevant to proving the applicant’s opportunity to commit the offence and the actus reus of dangerous driving. In using the “opportunity” label, the Crown argues that it avoids the more stringent standard applied when the evidence is used to prove identity. But it is not clear to me how opportunity is distinct from the issue of identity. The reason for proving the applicant’s opportunity to commit the offence is part and parcel of proving his identity as the driver. [2] As for the actus reus, I do not see how eliciting the driving on one occasion assists in proving that the driving was dangerous to the public on the other.

[13] Nonetheless, even if the similar fact application must be analyzed under the rubric of proving identity, I am satisfied that the application enjoys a reasonable likelihood of success. There are notable similarities between the two alleged events. In most cases of dangerous driving, the conduct only involves negligence. [3] Most dangerous drivers do not intend to alarm others with their driving. Some of the conduct might lack intentionality (e.g., a driver might not have intended to cross into oncoming traffic, even if they were intentionally speeding). But in this case, the alleged conduct from both events involves an intentional course of conduct over an extended period of time. [4] The driver is alleged to have engaged in menacing conduct towards others, whether by veering towards one person or following another to their home. The driver is alleged to have looked directly at other drivers in both events. This binding thread weaves into the other alleged similarities: the witnesses saw a man of similar description driving the exact same motor vehicle; the driving occurred in the same general part of Hamilton (either in Stoney Creek or on the road leading to Stoney Creek), and the events occurred a little more than one month apart. It remains to be seen whether the similarities are so unique to constitute a “signature”: R. v. Handy, 2002 SCC 56 at para. 77. But there is a viable argument that the alleged events exhibit a series of significant similarities: Arp at paras. 45, 50.

[14] I also foresee limited prejudice arising from the similar fact application. While a degree of prejudice is inherent, it is attenuated here by the anticipated evidence specific to each charge on the issues of identity, the actus reus, and the mens rea. The trial will focus on that evidence, independent of the Crown ultimately bringing a similar fact application. This is not a situation where the Crown’s ability to prove its case will hinge on the application of similar fact reasoning: see Blacklaws at para. 35. The moral and reasoning prejudice are also reduced in a judge-alone trial: R. v. J.H., 2018 ONCA 245 at para. 23.

[15] I reiterate that my task at this stage was to assess the viability of the Crown’s similar fact application based on allegations summarized in the parties’ factums. A fresh analysis will be conducted based on the evidence and arguments at trial. The viability of the Crown’s application does not guarantee its success.

Multiplicity of proceedings, length of trial, and inconsistent verdicts

[16] The need to use court resources efficiently and avoid a multiplicity of proceedings weighs against the severance application. Severing the counts would create a multiplicity of proceedings in a jurisdiction that is strapped for court time. The Crown would remain entitled to bring a similar fact application at each of the severed trials, seeking to admit the evidence that would be called at the other trial. The application would take time to adjudicate. It could be akin to running an unsevered trial twice, with the witnesses testifying twice and two different judges presiding. I therefore disagree with the applicant’s argument that severing the counts and running two separate trials would not consume more court resources. It is highly unlikely that each separate trial could start and finish within one day a piece.

[17] There is also a risk of inconsistent rulings on the similar fact application if the application is brought before two different judges. Irreconcilable rulings on the similar fact application could then contribute to verdicts on the merits that appear inconsistent.

Legal and factual nexus

[18] A surface examination of the allegations reveals a thin nexus between the two events. The proposed nexus bears similarities to the nexus proffered in Last at para. 32, which the Court described as “extremely thin”. The alleged events involve separate incidents that were not part of the same transaction. The complainants are not connected.

[19] However, the nexus here is the unique manner by which the applicant is alleged to have committed dangerous driving. That similarity drives the viability of the similar fact application, which creates a legal nexus between the events. There is also no minimum factual nexus required for counts to be heard together: Blacklaws at para. 33.

The applicant’s intention to testify

[20] An applicant’s provisional intention to testify on certain counts but not others is a significant consideration on a severance application. The applicant must express a subjective intention to testify on specific counts. He also bears the burden of providing sufficient information to convey objective substance to that intention: Last at para. 26.

[21] The applicant has not expressed any subjective testimonial intention. Counsel only made brief reference in reply submissions to how testifying on one count versus another will always be an issue. In addition to the absence of subjective expression, I cannot see how the circumstances establish an objective rationale for the applicant to testify about one event but not the other. Since identity is a central issue in this case, I could see the applicant not testifying at all. Alternatively, I could see him testifying to undermine his connection to the motor vehicle that was allegedly used in both events. While one might conceive of reasons to only testify on certain counts, none were supplied.

Conclusion

[22] After weighing the relevant factors, I conclude that the interests of justice do not require severance. The applicant faces a low degree of prejudice from holding a single trial. If the Crown’s similar fact application were to fail, it is expected that the trial judge would only consider the evidence that is strictly relevant to each charge. In light of the limited prejudice, it is the societal interest in efficient proceedings that prevails.

[23] The application for severance is denied.

Released: November 29, 2024 Signed: Justice Davin M.K. Garg

Footnotes

[1] Finch C.J.B.C was writing in dissent, but his opinion was endorsed by the Supreme Court: 2013 SCC 8.

[2] Doherty J.A. in R. v. L.O., 2015 ONCA 394 at paras. 63-69 highlights how the application judge must probe beyond the label affixed by the parties as the purpose for the evidence.

[3] The degree of negligence must reach the penal threshold to establish an offence: R. v. Beatty, 2008 SCC 5 at para. 6.

[4] Whereas in other cases of dangerous driving, the offence can be made out in a matter of seconds: see R. v. Burger, 2017 ONCA 101 at para. 44.