ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-099-00MO

DATE: February 16, 2012

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

R.K.M.

Applicant

Jodi Wyte, for the Crown

Michael J. Pretsell, for the Applicant

HEARD: In Picton on October 19, 2011

Ruling on severance application

MADAM JUSTICE J. A. BLISHEN

INTRODUCTION

[1] The accused, R.K.M. brings this application requesting severance of the counts on the indictment, pursuant to Section 591(3) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Criminal Code”).

[2] Mr. R.K.M. is charged as follows:

1. That he, between the 26th day of October in the year 2005 and July, 2010 in the County of Prince Edward in the East Region, did commit a sexual assault on A.K., contrary to Section 271 of the Criminal Code of Canada;

2. And further that he, between the 26th day of October, 2005 and July, 2010 in the Country of Prince Edward in the East Region, did for a sexual purpose touch A.K., a person under the age of sixteen directly with a part of his body, to wit: his penis, contrary to Section 151(a) of the Criminal Code of Canada;

3. And further that he, between the 26th day of October in the year 2005 and July, 2010 in the Country of Prince Edward in the East Region, did for a sexual purpose invite A.K., a person under the age of sixteen years to touch directly with a part of her body, to wit: her hands the body of R.K.M., contrary to Section 152 of the Criminal Code of Canada;

4. And further that he, between the 26th day of October in the year 2005 and July, 2010 in the Country of Prince Edward in the East Region, being in a position of trust or authority towards A.K. and being a person with whom A.K., a young person, was in a relationship of dependency did for a sexual purpose, touch directly the body of A.K., a young person, with a part of his body to wit his penis, contrary to Section 151(a) of the Criminal Code of Canada;

5. And further that he, between August 2003 and June 2004 in the Country of Prince Edward in the East Region, did commit a sexual assault on J.S.[1], contrary to Section 271 of the Criminal Code of Canada;

6. And further that he, between August 2003 and June 2004 in the Country of Prince Edward in the East Region, being in a position of trust or authority towards J.S.[1], a young person, did for a sexual purpose, touch directly the body of J.S.[1] a young person, with a part of his body to wit his hands, contrary to Section 153(a) of the Criminal Code of Canada;

7. And further that he, between August 2003 and June 2004 in the Country of Prince Edward in the East Region, did for a sexual purpose invite J.S.[1], a person under the age of fourteen years, to touch directly with a part of her body to wit her hands, the body of R.K.M., contrary to Section 152 of the Criminal Code of Canada;

8. And further that he, between August 2003 and June 2004 in the Country of Prince Edward in the East Region, did for a sexual purpose touch J.S.[1], a person under the age of fourteen years with a part of his body, to wit his hands, contrary to Section 151(a) of the Criminal Code of Canada;

9. And further that he, between July 2004 and February 4, 2005 in the Country of Prince Edward in the East Region, did commit a sexual assault on A.F. contrary to Section 271 of the Criminal Code of Canada;

10. And further that he, between July 2004 and February 4, 2005 in the Country of Prince Edward in the East Region, being in a position of trust or authority towards A.F., a young person, did for a sexual purpose, touch directly the body of A.F. a young person, with a part of his body to wit his penis, contrary to Section 153(a) of the Criminal Code of Canada;

11. And further that he, between July 2004 and February 4, 2005 in the Country of Prince Edward in the East Region, did for a sexual purpose touch A.F., a person under the age of fourteen years, directly with a part of his body, to wit his hands, contrary to Section 151(a) of the Criminal Code of Canada; and

12. And further that he, between July 2004 and February 4, 2005 in the Country of Prince Edward in the East Region, did for a sexual purpose invite A.F., a person under the age of fourteen years, to touch directly with a part of her body to wit her hands, the body of R.K.M. contrary to Section 152 of the Criminal Code of Canada.

[3] Mr. R.K.M. requests that counts 1, 2, 3 and 4 on the indictment relating to the Complainant A.K. be severed and tried separately from counts 5 through 12 relating to the Complainants J.S.[1] and A.F., which he agrees should be tried together.

[4] Transcripts of the Preliminary Inquiry and reference to previous statements provided by the Complainants to police, were relied upon on the severance motion.

BACKGROUND

[5] R.K.M. and his wife D.M. were foster parents for the Prince Edward County Children’s Aid Society (“the Society”), commencing in or about 2003.

J.S.[1] and A.F.

[6] In 2003, nine year old J.S.[1] (born […], 1994) was in the care of the Society and was placed with her sister J.S.[2] in the M. foster home in Wellington. J.S.[1] continued to reside with the Ms until the early summer of 2004 when she and her sister returned to live with their mother. Shortly after returning to their mother’s care, J.S.[1] disclosed to her sister J.S.[2], sexual assaults by R.K.M..

[7] On February 2, 2005, Society workers went to the S. home to discuss Mrs. J.S.[2]’s intention to move from the jurisdiction. The Society did not wish Mrs. J.S.[2] to relocate. J.S.[2] then disclosed to her mother, in J.S.[1]’s presence, if they were taken back into Society care, they could not return to the M. household, as Mr. R.K.M. had sexually abused J.S.[1]. The Society and the OPP were informed of this allegation. J.S.[1] and J.S.[2] were interviewed by the OPP at the offices of the Society on February 4, 2005.

[8] J.S.[1] was somewhat reluctant to speak and provided little detail in her videotaped interview. She did however provide a letter she had handwritten beginning “Dear Judge”, in which she stated Mr. R.K.M. had touched her in her private area, laid on her on her bed (using force) and sexually touched her when they were in the pool. She further disclosed that Mr. R.K.M. touched her while in her bedroom, the TV room and the pool. J.S.[1] stated that she had not seen Mr. R.K.M.’s privates or been touched by them.

[9] On July 30, 2004, shortly after J.S.[1] left the M. home, another foster child, ten year old A.F. (born […], 1994) was placed with Ms in Wellington. The family moved to Bloomfield in the fall of 2004. A.F. remained in the M.’s care until she was removed on February 3, 2005, after disclosing to her lawyer that Mr. R.K.M. was sexually abusing her. Her lawyer immediately reported this disclosure to the Society and a videotaped interview was conducted by the OPP at the Society’s offices.

[10] There is no evidence that J.S.[1] and A.F. knew each other nor was there evidence they had ever met. However their complaints were brought to the attention of the OPP one day apart in February, 2005.

[11] A.F. told the police and the Society that Mr. R.K.M. first had sexual contact with her, which she described as being top of her and going up and down, two weeks after she moved into the home. She further described other occasions when Mr. R.K.M. asked for sex and she refused and when Mr. R.K.M. came into her room, lay on her and “he does it to me”.

[12] A.F. stated that after the family moved to Bloomfield, Mr. R.K.M. asked her to kiss his penis and she refused. She described another time when he grabbed her hand and made her touch him.

[13] A.F. stated the sex happened in both houses - on the stairs in Bloomfield, in her room, in the truck and at the poolside. On the last occasion, she indicated Mr. R.K.M. put his penis in her mouth and described “slimy stuff and pee” coming from his penis.

[14] After the disclosures by the girls, Mr. R.K.M. was contacted by the Society and the OPP. He provided a voluntary statement to the police in which he indicated he would be physically unable to commit some of the offences alleged as he could not maintain an erection as a result of a radical prostatectomy. He signed a release and the OPP contacted his physician, Dr. Harding, who provided a faxed letter. The letter satisfied the investigating officer, Sergeant Allison, that Mr. R.K.M. suffered from impotence as a result of his surgery. The fax from Dr. Harding and the videotaped statement of Mr. R.K.M. from 2005 have gone missing. The OPP is unable to produce this evidence.

[15] In addition to consulting with Mr. R.K.M.’s doctor, Sergeant Allison, with Mr. R.K.M.’s consent, viewed his computer and found no photographs of J.S.[1] or J.S.[2] exposing their buttocks as had been described, nor did he find any pornography on the computer as described by A.F.. After consultation with the Crown attorney, the OPP concluded there were no reasonable grounds to arrest Mr. R.K.M.. In addition, at that time, the Society determined the complaints made by J.S.[1] and A.F. were “not verified” and no further action was taken.

[16] After receiving counselling, then fifteen year old J.S.[1] called the police in 2009 and provided a second statement. In her interview, she described sexual touching in the vaginal area; touching when she sat on Mr. R.K.M.’s lap and touching when she was in the swimming pool. She also related an occasion in the van when Mr. R.K.M. made her give him a hand job. He told her could not ejaculate but she stated he did in fact ejaculate. She also described performing fellatio on him stating that she did not like it. Therefore, the next time Mr. R.K.M. brought baggies to the bedroom and put them over his penis.

[17] In 2010, A.F. gave a further statement to the police describing intercourse with Mr. R.K.M., the first time at poolside. In this second statement she stated that now that she is older, she believes that semen came out of his penis, not pee. She described being sexually assaulted in the new house in Bloomfield, on the stairs, and in the truck at the dump. At times D.M. was home and at other times she was shopping. She stated Mr. R.K.M. told her she could not get pregnant because he was “fixed”.

A.K.

[18] Given that no charges were laid against Mr. R.K.M. and the Society found the complaints of J.S.[1] and A.F. unverified, ten year old A.K. (born […], 1995) was placed in the M. foster home in the summer of 2005, just a few months after A.F. left. A.K. resided there with her sister L., until June 2010. L. left the M.’s care several months before A.K..

[19] In June 2010, after an argument with D.M., A.K. asked to be moved from the M. foster home. She was then placed in the foster home of R.H.. A.K.’s sister L. was already residing there. Approximately a month after moving into the R.H. home, it was discovered that A.K. was communicating with R.K.M. by email via Facebook. Although the content was not sexual or threatening, Ms. R.H. asked Mr. R.K.M. to stop emailing A.K.. Shortly thereafter, A.K. disclosed to Ms. R.H. that she had been sexually abused by R.K.M.. Ms. R.H. immediately reported this to the Society.

[20] A.K. was interviewed by the police and provided a videotaped statement in which she indicated Mr. R.K.M. first touched her sexually in October 2005 and the last time was several days before she left the home in June, 2010. She provided detailed accounts of Mr. R.K.M. making her give him hand jobs; requiring her to perform oral sex on him and having intercourse with her repeatedly and regularly throughout her five year stay in the home. She described sexual activity in almost every room of the house as well as in the van, in the pool and on trips. A.K. stated that Mr. R.K.M. told her she could not get pregnant because he had an operation. She further described one occasion when she gave him a “blow job” and he peed in her mouth, otherwise he did not ejaculate. She indicated R.K.M. was not circumcised and had a mole high up on the inside of his thigh. She also stated that just prior to her leaving the home, he had a swollen scrotum.

Preliminary Hearing

[21] All three Complainants testified at a preliminary hearing held in May 2010, June, 2010 and January, 2011, as did J.R., a foster child in the M. home from 2005 to 2010, when A.K. resided there.

[22] Although there were some inconsistencies, J.S.[1] testified at the preliminary hearing that she had sex with Mr. R.K.M. and he with her; she gave him hand jobs and he touched her vaginal area. There was no sexual intercourse. The events took place in the van, the basement, the pool and in her bedroom. J.S.[1] indicated that when she performed oral sex on Mr. R.K.M., he did not get an erection although there was an occasion when she gave him a hand job in the van, he ejaculated and she had to wash her hands. She testified that the incidents occurred at times when D.M. and sister J.S.[2] were home and at other times when they were out shopping.

[23] A.F. testified that the first time Mr. R.K.M. had sexual intercourse with her was in Wellington at the poolside. She also recalls the next occasion being on the stairs in Bloomfield. She could not recall any other acts of intercourse. She recalled Mr. R.K.M. laying on top of her when they went to the dump and asking her to touch and kiss his penis but she refused to do that. She was uncertain if he ever ejaculated. A.F. recalled a discussion about R.K.M. raping her and Mr. R.K.M. indicating that he would go to jail if she disclosed. A.F. indicated she is always able to recall the poolside incidents but the others come and go.

[24] A.K.’s testimony at the preliminary hearing was largely consistent with her earlier statement. She did indicate there was no oral sex on her. She stated there were occasions when he put his tongue or mouth on her but it was “not preferred”. She was consistent that he could get an erection but that nothing came out. A.K. testified that she did not say anything or make any disclosures to the Society because it would result in a court case and she did not want that.

[25] J.R. testified that at no time did Mr. R.K.M. touch her in any way that made her feel uncomfortable and she did not see him in A.K.’s bedroom with the door closed nor did she see him doing anything that was a concern. She testified that she specifically asked A.K. if anything happened between her and R.K.M. in 2007, and A.K. denied anything of concern..

[26] The preliminary inquiry was held with respect to two separate Informations. On June 2, 2011, the Crown laid an indictment charging Mr. R.K.M. with twelve counts relating to alleged sexual activity with all three Complainants: J.S.[1], A.F. and A.K..

LAW AND ANALYSIS

[27] Pursuant to Section 591(1) of the Criminal Code, subject to s. 589, the Crown may join any number of counts for any number of offences in the same indictment.

[28] The accused has a right to apply for severance of the counts under Section 591(3) of the Criminal Code. The onus is on the accused to satisfy the Court on a balance of probabilities, that severance is necessary and in the “interests of justice”. See: R. v C. (D.A.) (1996), 1996 8341 (BC CA), 106 C.C.C. (3d) 28 (sub nom. R. v. Cuthbert), aff’d [1997] 1 S. C.R. per Sopinka, J.

[29] In R v. Last (2009), 2009 SCC 45, 3 S. C.R. 146, at paras. 16 and 17, the Supreme Court of Canada reviews what is encompassed by the phrase “in the interests of justice” as follows:

“The interests of justice encompass the accused’s rights 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. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.

Courts have given shape to the broad criteria established in s. 591(3) and have indentified 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 example. Severance can impair not only efficiency but the truth-seeking function of the trial.”

[30] In R. v. Last, supra, the Court goes on to review a series of factors trial judges ought to consider when deciding whether the interests of justice require an order for severance.

[31] The non-exhaustive list of factors provided by the Supreme Court of Canada include:

1. the factual and legal nexus between the counts;

2. the complexity of the evidence;

3. whether the accused intends to testify on one count but not on another;

4. the possibility of inconsistent verdicts;

5. the desire to avoid a multiplicity of proceedings;

6. the length of the trial having regard to the evidence to be called;

7. the potential prejudice to the accused with respect to the right to be tried within a reasonable time;

8. the use of similar fact evidence at the trial;

9. general prejudice to the accused.

See: R. v. E. (L.) 1994 1785 (ON CA), 1994 94 C.C.C. (3d) 228 (0nt. C.A.), at p. 238; R. v. Cross (1996), 1996 5992 (QC CA), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419; R. v. Cuthbert (1996), 1996 8341 (BC CA), 106 C.C.C. (3d) 28 (B.C.C.A.), at para 9, aff’d 1997 397 (SCC), [1997] 1 S.C.R. 8 (sub nom. R. v. C. (D. A.)); R. v. Last, supra.

[32] No one factor in this list is determinative. All the relevant factors must be carefully considered and weighed by the trial judge in determining whether severance is in the interests of justice.

[33] Defence counsel argues the most relevant and weighty factors favouring severance are: significant prejudice to Mr. R.K.M. if the counts remained joined; the likelihood Mr. R.K.M. will testify on the counts related to A.K. but not on the others and the fact that the Crown does not have a viable similar fact case.

1. Factual and Legal Nexus between the Counts

[34] Mr. R.K.M. acknowledges that his defence on each count is identical - a total denial of the allegations of all three Complainants or, as he terms it, factual innocence. To that extent, there is a legal nexus between the counts. In addition, the Crown will seek to tender evidence of the Complainants, who were all children at the time of the allegations, as similar fact evidence, in order to prove the allegations of each Complainant. The legal and evidentiary issues will be the same.

[35] Supporting a factual nexus, I note the following:

1. All three Complainants were girls, aged nine or ten, at the time of their placement in the M. foster home.

2. The three girls were placed continuously and consecutively in the M. foster home commencing with J.S.[1], followed immediately by A.F. and finally, A.K., a few months later.

3. All Complainants were placed in a familial setting, a foster home, by the Society, given concerns regarding their own families and a need for protection.

4. All Complainants were placed with one sibling.

5. The allegations are similar involving a wide range of sexual abuse.

[36] I find a strong legal and factual nexus between the counts in this case.

2. Complexity of the Evidence

[37] Complexity of the evidence may result in an order for severance if the multiplicity of counts would be so complex that the trier of fact would be overwhelmed and unable to separate the issues with sufficient clarity. See R. v. Rose (1997), 1997 2231 (ON CA), 100 O.A.C. 67 (C.A.).

[38] The benchmark for severance based on complexity is a high one. Significant complexity was found for example by the Ontario Court of Appeal in the case of R. v. MacNamara (No. 1) (1981) 56 C.C.C. 92d) 193 (Ont. C.A.). That case involved twenty accused, seven counts of conspiracy spanning a fourteen year period and a trial lasting fourteen months. This case is significantly less complex. In dealing with a potential similar fact argument, limiting instructions that may be required for the jury would not be overly complex. If similar fact evidence was not permitted to go to the jury, the instruction to compartmentalize amongst the Complainants would be straightforward and provide clarity. Although there is always a risk the jury will confuse the evidence of some witnesses between different counts, clear, concise instructions to the jury can be provided to alleviate these concerns.

3. Whether the Accused Intends to Testify

[39] Defence counsel indicates that based on the evidence available, Mr. R.K.M. will likely testify and deny the allegations made by A.K.. He states that the quality of the evidence disclosed and available at the preliminary hearing with respect to the allegations made by J.S.[1] and A.F. is so weak that it is unlikely Mr. R.K.M. would testify on those counts alone.

[40] In asserting his intention to testify in response to only one of the three Complainants, Mr. R.K.M. must provide a logical rationale. In R. v. Last, supra, the court noted that the accused’s testimonial intention should be objectively justifiable. At paragraph 26, the court states:

“…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 a 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.”

[41] In this case, the only known defence is that none of the alleged offences occurred. This is not a situation where a different potential defence would be open to Mr. R.K.M. on some of the counts and not on others nor where some of the counts call for a different theory of the case from others. The nature of Mr. R.K.M.’s testimony would be the same. Therefore, although Mr. R.K.M. has indicated a provisional intention with respect to testifying, I cannot find that intention objectively justifiable with respect to some counts and not others. In addition, I note that this is but one factor to be considered and balanced with all the others. See R. v. Last, supra, paragraph 27.

4. The Possibility of Inconsistent Verdicts

[42] Both Crown and defence counsel agree that, given the overlapping nature of the evidence of the counts alleged against Mr. R.K.M., the possibility of inconsistent verdicts in all the circumstances of this case is not a consideration.

5. Desire to Avoid Multiplicity of Proceedings

[43] Defence counsel acknowledges it is generally in the public interest to have matters tried together. If there is a finding that the similar fact evidence meets the threshold test, then a severance would cause multiple proceedings in which the same evidence is heard. A number of witnesses would be required to repeat their evidence and additional court resources would be expended. If there is a viable similar fact case, defence concedes that the public interest in avoiding a multiplicity of proceedings would call for a single trial.

6. Length of Trial having regard to the Evidence being called

[44] Again, defence counsel acknowledges that all counts can be tried together in a reasonable time and therefore this factor is neutral.

7. Potential Prejudice to the Accused with Respect to the Right to be Tried within a Reasonable Time

[45] Again, it is conceded by defence counsel that, at this time, there is no issue with respect to Mr. R.K.M.’s right to be tried within a reasonable time. It is Mr. R.K.M. himself who wishes separate trials on these counts which would necessitate a delay and involve more court time.

8. Use of Similar Fact Evidence

[46] The Crown has indicated her intention to fully argue an application for similar fact evidence at the end of the Crown’s case. The court does not have to make a final decision as to the admissibility of similar fact evidence on the motion for severance. The threshold test is whether or not the Crown has a viable similar fact application.

[47] In this case, as previously noted, the defence is a general denial of the allegations of all three Complainants. This is not a case where consent or other defences are raised. The Crown’s request to introduce similar evidence is solely as to the credibility of the Complainants in deciding whether or not the acts alleged occurred. There is no need for a finding that there are striking similarities as would be required in an identification case.

[48] In R. v. J.N.W. 2010 ONSC 1057, [2010] O.J. No. 730 (Ont S.C.), Fragomeni, J. of the Ontario Superior Court of Justice considered a number of factors supporting the Crown’s position that there was a viable similar fact case at para. 56 as follows:

• “The age of the complainant at the time of the allegations (early adolescence);

• The type of relationship the complainant had with the accused (familial / power imbalance);

• Both incidents occurred while the complainant was at one of the accused’s properties (home or cottage) to baby-sit;

• Both incidents involved vaginal penetration (digital or penile);

• Both incidents began while the complainant was fast asleep;

• The evidence shows inappropriate pattern of conduct by the accused in relation to children who place trust in him;

• The allegations by both complainants include persistent improper / ‘lewd’ behaviour (unsolicited/unwanted massaging, ogling, “tongue-action”);

• The evidence bears directly on the issue of credibility of both complainants;

• The evidence bears directly on the intent of the accused;

• The evidence is relevant to the defences of accident, innocent association/touching, or denial;

• Prejudice is diminished since each complaint is the in the same range of seriousness;

• There is little chance in the circumstances (familial setting, complainants known to each other, complainants disclosed to each other,) a properly instructed jury would engage in impermissible propensity reasoning;

• It would be artificial to separate the timing and reasons for disclosure from each complainant;

• There is no evidence of any direct collusion (only contact and general discussion);

• The circumstances of the disclosure/report to the police as well as the differences in the allegations between the two complainants contradict any notion of “unconscious influence”.

See: Rv. L. (T.B.), [2003] O.J. No. 1502 (C.A.); R. v. T(B)., 2009 ONCA 177; R. Brown, [2006] O.J. No. 5276 (C.A.); R. v. Camacho, [2005] O.J. No. 4417 (C.A.)

[49] A number of these factors are also relevant in the present case.

1. All three Complainants were young girls aged nine to ten at the time of the allegations.

2. All three Complaints were vulnerable foster children in a familial situation of dependence on their foster father. All three cases involved a situation of an imbalance of power.

3. The allegations are of incidents that occurred at a variety of similar locations – in the pool, the home in Wellington and in Bloomfield and in Mr. R.K.M.’s van or truck.

4. All three Complainants allege a myriad of similar sexual activities. The sexual abuse allegations are not all the same but the circumstances surrounding them are similar. For example, a number of the incidents were alleged to have occurred when D.M. was out shopping or elsewhere.

5. All three Complainants indicated that the incidents started a few weeks after their arrival and continued until they left the foster home.

6. All three Complainants had one sibling residing with them in the M. foster home who often went out with D.M. leaving the Complainants in the home with Mr. R.K.M..

7. The evidence of the Complainants bears directly on the issue of credibility of all three.

8. The prejudice is diminished as all the allegations are in the same range of seriousness.

9. There is no evidence of any collusion in this case.

[50] I note the following comments by the Supreme Court of Canada in R. v. Last, supra, as follows, in paras. 33 and 34:

“In many cases a ruling allowing similar fact evidence will favour a joint trial since the evidence on all incidents would have to be introduced in any event. However, in the view of the different burden in a similar fact evidence application, the issue has to be considered carefully in the context of a severance motion. As said in R. v. Arp, [1983] 3 S.C.R. 339, at para. 52:

However, where the similar acts are alleged as part of a multi-count indictment, the consideration of the admissibility of similar fact evidence will have to be taken into account in deciding whether the counts should be severed. Nevertheless, the trial judge should be careful not to confuse admissibility with severance. A motion to sever under s. 591(3)(a) of the Code must be brought by the accused, who bears the burden of establishing on a balance of probabilities that the interests of justice require an order for severance. Yet the burden of demonstrating that similar fact evidence should be admitted must be borne by the Crown. The respective burdens may involve the consideration of similar factors, but as Lord Scarman noted in R. v. Scarrott (1977), 65 Cr. App. R. 125 (C.A.), at p. 135, “[i]t does not follow that because a multi-count indictment has been allowed to proceed that therefore the evidence given will be evidence on all the counts contained in the indictment”. Thus, to paraphrase the Manitoba Court of Appeal in R. v. Khan (1996), 1996 7296 (MB CA), 49 C.R. (4th) 160, at p. 167, notwithstanding the judge’s refusal to sever the counts in a multi-count indictment, it remains open to him or her, as the evidence progresses at trial, to determine as a matter of law that evidence on one count is not admissible as similar fact evidence on other counts. The assessment of similar fact evidence and the determination of its probative value and admissibility places on onerous burden on the trial judge. It is a task that must be undertaken with great care.

In the case at bar, an issue facing the trial judge at the time of the severance hearing was the fact that the Crown indicated that it wanted to wait until the conclusion of its evidence before making a similar fact evidence application. There is no procedural rule requiring the Crown to bring the similar fact evidence application at the time of the severance application: see D. Watt, Watt’s Manual of Criminal Evidence (2009), at s. 34.02. Given that the assessment of the similar fact evidence application can be a difficult task, in many cases such an assessment may be best done once all of the Crown’s evidence has been tendered.”

[51] On the basis of the record available to me on the severance application and given the circumstances of this case, I am satisfied that the Crown has a viable similar fact application.

9. General Prejudice to the Accused

[52] Defence counsel argues that the counts related to J.S.[1] and A.F. are based on a weaker evidentiary foundation, are not substantiated and are not credible. It is argued that if members of the jury hear the evidence surrounding the S.-F. counts, it is likely they will engage in propensity reasoning with respect to the accused.

[53] Moral and reasoning prejudice are not primary considerations in a judge alone trial. However, when the election is for a trial by judge and jury, the potential prejudice to the accused must be considered and assessed against the probative value of the evidence.

[54] In R. v. D.(L.E.), 1989 74 (SCC), [1989] 2 S.C.R. 111, Sopinka, J. noted that the prejudicial effect of the similar fact evidence may be felt by the jury in three main ways.

1. “The jury, if it accepts that the accused committed the prior bad acts, may therefore assume that the accused is a bad person who is likely to be guilty of the offence charged;

2. The jury might punish the accused for past misconduct by finding the accused guilty of the offence charged; and/or

3. The jury might become confused as it concentrates on resolving whether the accused actually committed the similar acts, and substitute their verdict on that matter for their verdict on the charge being tried.”

[55] However, in this case the charges are all contained in a multi-count indictment. Therefore the three considerations listed in R. v. D. (L.E.), supra, are of less concern as the jury must first find that each Complainant is likely telling the truth or is likely credible before they can apply the testimony of that Complainant to any other count.

[56] In addition, as the conduct alleged is not past conduct but concurrent on the indictment, punishment for past conduct proved is not possible.

[57] Therefore, although the court must exercise significant caution when dealing with the potential prejudice to the accused if the counts are not severed, I find the probative value of the evidence at the threshold stage is considerable and the potential prejudice can be limited by instructions to the jury.

CONCLUSION

[58] Having considered and weighed all the factors outlined by the Supreme Court of Canada in R. v. Last, supra, in light of the circumstances of this particular case, I find that R.K.M. has not established on the balance of probabilities that severance is necessary and in the interests of justice.

[59] Therefore the motion for severance is denied.

Madam Justice J.A. Blishen

Released: February 16, 2012

COURT FILE NO.: CR-099-00MO

DATE: February 16, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

R.K.M.

Applicant

Ruling on severance

Madam Justice J.A. Blishen

Released: February 16, 2012