ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-0983
DATE: 2012-05-30

BETWEEN:

HER MAJESTY THE QUEEN – and – CHRISTOPHER CHAULK Defendant

Jason Nicol, for the Crown

Lorne J. Goldstein, for the Defendant

HEARD: May 28, 2012

REASONS SEVERANCE APPLICATION

T.D. RAY, J

[ 1 ] The defendant moves for an order severing the counts in the indictment so that the counts relating to the incident of May 6, 2010 will be tried separately from the counts relating to the incident of May 8, 2010. The application is brought under s. 591(3)(a) C.C.C. which provides that the court may, where it is satisfied that the interests of justice so require, order (a) that the accused or defendant be tried separately on one or more of the counts . The burden is on the defendant to establish his entitlement to the order on a balance of probabilities. The Crown opposes the application.

[ 2 ] The allegations of fact of each incident as summarized by the defendant are not challenged by the Crown.

[ 3 ] The May 6, 2010 incident involves complainant D who woke in her bed at 3 a.m. May 6, 2010 to discover a white male standing at her bedroom door on the grounds of CFB Petawawa. She was home alone. The white male attacked her by grabbing her arms and pulling her off of the bed onto the floor and into the hallway of the house. She screamed for help but the man, wearing black gloves, put his hand in her mouth to stop her from screaming. A struggle ensued. While his hand was in her mouth he placed his other hand inside her pyjama bottoms and groped her vagina. He was just moving his fingers around. His fingers did not penetrate. He wasn’t being aggressive like he was when trying to keep her quiet. She was able to remove his hand from her mouth and continued to struggle. He then got up and ran down the stairs. She followed him and looked outside but did not see him. The struggle reportedly lasted for about a minute before the assailant gave up and fled. She walked to a neighbour but there was no answer. She returned home and discovered the upstairs phone was unplugged and on the floor. D described her assailant as approximately 5’9 to 5’10, wearing a dark navy blue fleece jacket/sweater, light blue jeans and multi coloured sneakers (dark shades of orange, purple and green). The male was wearing black cotton gloves and neutral colour pantyhose on his head. He probably weighed between 180 and 190. Wasn’t a large person but definitely had some muscle although he may have looked a bit bigger to her because of the coat. He was wearing jeans - lighter colour jean but not like so washed out a light pair of blue jeans. His shoes were green, purple and orange, but very dark. D attended Pembroke Regional Hospital for medical treatment and sexual assault kit. She stated she had been at the Great Canadian Warehouse and had 3 drinks earlier in the evening. When questioned, D indicated that she had broken up with her boyfriend earlier that night, but did not feel that it was him as he is not the violent type. However, she did concede that when she first observed the man she thought it was her ex-boyfriend because he wears shoes that are similar. She also advised police that she had assumed it was her ex-boyfriend Dave, or her roommate Danny or Josh who was partially moved in and would be moving in soon.

[ 4 ] The allegations with respect to the incident of May 8. 2010 involving E are that at approximately 3 a.m. she was sexually assaulted while walking alone on a paved pathway on the grounds of CFB Petawawa. Prior to the attack she had been at the “Warehouse” for 4 hrs and had been consuming alcoholic beverages with female friends. At 2:30 a.m. she declined a ride preferring to walk the relatively short distance home. She was texting a friend on her cell phone when she became aware that someone was approaching her from behind. She turned and noted a male wearing a dark hoodie over his head jogging towards her. She turned to face the male front on. He grabbed her by her arms with his hands and a struggle ensued causing her to fall to the ground (she may have been able to kick his legs as she fell to the ground). The male got on top of her and forced her face and head into the ground. She began screaming for help which resulted in him punching her in the face with his closed fists. She told him she would stop screaming if he would stop punching, which he did. She thinks she bit his hand that was in her mouth. The male dragged her by her hair off of the paved pathway towards the bushes. He undid the zipper to her pants and her belt but was unable to get her belt completely off of her. She became aware of approaching police vehicles. He asked her if she had a cell phone. He took her cell phone and fled on foot into the nearby woods. The police discovered a green nylon wallet belonging to the applicant resting on top of a pack of cigarettes belonging to E on the scene. An OPP Canine unit pursued and captured the defendant. He was found on a covered wooded route back to his quarters at CFB Petawawa. On a search incidental to arrest, officers located a cell phone battery allegedly belonging to E in the applicant’s possession. A ground search on May 8 resulted in E’s cell phone being located in the vicinity of where the applicant was arrested. In subsequent interviews, E indicated that she may have bit him and attempted to scream for help. He hit her and she punched back, which made him hit her repeatedly with both fists and he kicked her in the stomach. She then heard sirens and saw the lights of a patrol car approaching. She started crying and the assailant left, running into the bushes. Before he left, she scratched him. E would not be able to identify him because she did not see his face. She did indicate that the man was taller than her. When looking straight at him, she was looking at his chest. She remembered he had a hoodie on and jeans but was not sure if he was white or black. The hoodie was dark, grey or a little darker.

[ 5 ] The evidence is that the defendant gave inculpatory statements concerning both incidents, and that DNA evidence links him to both incidents. Subject to a voir dire for admissibility of the statements, the defendant did not challenge the Crown’s evidence on this motion. The defendant’s counsel advised in submissions that the defendant intends to give evidence concerning the second incident, but not the first. He contends that having been found in the vicinity requires that he give an explanation.

Analysis

[ 6 ] When deciding whether to sever counts, courts balance the risk of prejudice to the accused and the public’s interest in a single trial. If prejudice to the accused is found to tip the balance, then severance should be ordered. There are a number of factors that I must consider in deciding whether the interests of justice require severance. [1]

General Prejudice to the accused

[ 7 ] The prejudice to the defendant is the risk that a jury might use reasoning prejudice when hearing the evidence of two sexual assaults in the same vicinity two days apart. In neither case can the complainant identify her attacker. However, absent a successful similar fact application, appropriate jury instructions can be given to caution against propensity and reasoning prejudice. However it must not be minimized.

Legal and factual nexus between the counts

[ 8 ] The nexus is identical charges arising out of both incidents, similar location, two days apart. Identity is the issue for both complainants. Both incidents were investigated at the same time, the same forensic biologist examined both incidents, and the defendant was questioned by an investigator concerning both. The complainants were not known to each other, and apparently unknown to their attacker. The defendant contends that it is admitted that there is no nexus beyond date and location because the Crown has undertaken in its pre-trial conference material that no similar fact application will be made. While that is true, it seems that when the defence raised a severance application at the judicial pre-trial, the Crown then took the position that it would undertake a similar fact application – likely after the commencement of the trial. In any event, the defence contends that this is in reality a similar fact application by the Crown. This is not a similar fact application. That is unnecessary on this application. Having said that, the summaries show the attacks to have been similar with comparable levels of violence, similar modus operandi, the presence of a phone was of concern to the attacker in both cases, the locations of the two incidents were close, the time of day was almost identical and the attacks took place two days apart. There is a factual nexus, albeit not strong.

Complexity of the evidence

[ 9 ] I don’t consider the evidence to be complex. The issue is simply one of identity

Whether the accused intends to testify on one count but not the other

[ 10 ] This factor is more problematic. The defendant intends to testify on the May 8, 2010 incident, but not the May 6 incident. A joint trial would either discourage him from giving evidence at all, or alternatively place pressure on him to give evidence concerning both incidents. The defence position is that the right of the defendant to conduct his defence should not be fettered in this way. The Crown position is that that is only one of many factors, and is not determinative. He contends that objectively the defendant can’t be taken to pick and choose subjectively, and that objectively the evidence is very strong for both incidents. I consider this factor to be important. However, the defendant’s position must be subject to some scrutiny. Firstly, the defendant cannot be held to his position by way of undertaking. He is not bound by his stated intention. [2] Secondly, it would be troubling if a defendant were to take this position solely to boost the strength of his severance application. Thirdly, I have some concerns about the defendant’s position. If the Crown is correct that inculpatory statements and DNA link the defendant to both incidents, I have some doubt that the defendant would in fact give evidence concerning one incident and not the other, if a severance were ordered. Under these circumstances this factor is less significant.

Possibility of inconsistent verdicts

[ 11 ] There is no possibility of inconsistent verdicts. They are two discrete unconnected incidents.

Multiplicity of proceedings

[ 12 ] The defence position is that severance would add three days to the proceedings- one day for jury selection – one day for jury instruction – and additional time for jury deliberation. He agrees to be bound by any evidential rulings on the second trial, made during the first. The defendant also suggests that it would be easier to pick a jury for two weeks rather than four weeks. That is not the position of the Crown. The Crown contends that it would not simply take the same length of time to conduct two trials as one, if there were a severance. While the overlap in evidence would not be great, it is simplistic to conclude that the evidence in each of the two incidents can be compartmentalized. Probably the most difficult issue would involve having the investigating officer give his own evidence and lead the evidence of the interview of the defendant if there were a severance.

Use of similar fact evidence at trial

[ 13 ] This is not a similar fact application. Whether the Crown brings such an application and whether it is successful is for another day. However, I am obliged to consider the admissibility of similar fact evidence on this severance application. [3] Having regard to the similarities of evidence on the two counts, a successful similar fact application is certainly possible. After the evidence the identity issue may be clarified, and allow for a similar fact order.

Potential prejudice to the accused regarding his right to be tried in a reasonable time

[ 14 ] Severance would certainly add to the delay for trial on one of the incidents. The defendant contends that since it is his application, he waives his s.11(b) rights. The Crown takes the position that delay is delay and the state has an interest in bringing this matter to conclusion promptly. There is no doubt the defendant would be prejudiced by the delay even though it would not reach the s.11(b) threshold.

Balancing the factors and assessing the interests of justice .

[ 15 ] The benefits to the administration of justice with a joint trial are scheduling of court time, scheduling of witnesses, and a timetable for completion of the trial – it having been set for four weeks commencing October 5, 2012. There are witnesses who would have to be called a second time if a severance were to be granted, and delay would inevitably follow for completion of the counts for the second incident if severance were granted. Delay is not in the interests of justice.

[ 16 ] While reasoning prejudice and propensity reasoning are present, I am satisfied that appropriate jury instructions will limit the prejudice. I am not persuaded that the defendant’s stated intention to give evidence concerning the May 8, 2010 incident is of sufficient weight to tip the balance.

[ 17 ] Having considered all of the factors, I am not persuaded on a balance of probabilities that an order for severance should be ordered. The application is therefore dismissed.

Honourable Justice Timothy Ray

Released: May 30, 2012

COURT FILE NO.: 10-0983
DATE: 2012-06-01

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – CHRISTOPHER CHAULK Defendant REASONS FOR JUDGeMENT Honourable Justice Timothy Ray

Released: May 30, 2012

[1] R v Last , 2009 SCC 45 , paras 17-18

[2] R v Last, paras 26-27

[3] R v Last, paras 33, 34 , R v Arp 1998 , [1998] 3 S.C.R.339 @para 52