ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1545/2011
DATE: 20120830

BETWEEN:

HER MAJESTY THE QUEEN – and – JOHN WILLIAM KENNEDY Applicant

ANIKO COUGHLAN, for the Crown
DAVID STOESSER, for the Applicant, John William Kennedy

HEARD: August 17, 2012

DESOTTI, J.

1Pursuant to section 591 (3) (a) of the Criminal Code , counsel for the defence brings this application for a severance and the Crown has now indicated through her own application that she intends to bring a similar fact application upon receiving the ruling in this matter.

2There need not be a similar act application by the Crown at the same time as this severance application as the onus is on the accused to convince the court of the merits of his severance application on a balance of probabilities. Nevertheless, one of the factors that a court must consider is if there is any similar fact evidence that may be adduced at trial. Of course, in such an application the Crown must establish the admissibility of the evidence.

A. The Facts

3The accused is charged with a fifteen count indictment, wherein two counts allege a breach of probation but the other thirteen counts reflect, with respect to one complainant S.H., allegations of the administering of a stupefying drug, an assault by manual strangulation, an aggravated assault, the use of a weapon in committing a sexual assault, and unlawful confinement; with respect to a second complainant, S.K., an assault by manual strangulation and two other assaults; with respect to a third complainant, S.T., there is an allegation of sexual assault and sexual touching of a person under sixteen years of age; and finally with respect to the fourth complainant, T.S., there are allegations of the administering of a stupefying drug, the commission of a sexual assault, and an assault.

4Putting aside the allegations of breaches of probation, three of the counts are alleged to have occurred in February of 2010, five counts in April of 2010, and five counts in November of 2008.

5While defence counsel states that the Crown will be calling only six Crown witnesses, the Crown indicates that she will be calling thirty Crown witnesses, although I note for the purpose of the preliminary hearing none of the medical evidence was called.

6In addition, when the matter first came before me, I requested a further and better indication of precisely where, from defence counsel’s perspective, the prejudice would be reflected in the transcript from the preliminary hearings, for example, or from any better and more specific and targeted submissions as contained within perhaps an amended factum. Similarly, I requested a better and more expansive response from the Crown highlighting the evidence in support of similar fact evidence and other preliminary hearing excerpts that reflect some insight into the defence of the accused and the focused response to the request to sever the counts.

7The Crown attorney has provided me with this type of evidentiary assist and because it is a jury trial, I have also read the preliminary hearing transcripts that defence counsel has filed that further provide a better understanding of the nature of the proposed trial with respect to the thirteen substantial counts in the indictment that is scheduled for September 17 th . 2012.

8In terms of nexus or similarities of the facts of the different counts in the indictment, all of the complainants met through an on-line internet service, including communications through the internet (MSN) with S.T ., who was the daughter of the complainant S.K., who moved from Thunder Bay to the accused’s residence in Sarnia for a four day period in November of 2008. The complainant S.T. was eleven years of age in November of 2008, as she was born on […], 1997 and, as indicated from her statement at page 6, also talked to the accused on-line.

9The unwanted sexual contact or assaults occurred in the residence of the accused in the city of Sarnia. Both S.H. and T.S. were offered medication/vitamins with only S.H. accepting same. Three of the complainants were alleged to have been assaulted by the accused through the compression of their airways that is S.H., S.K., and T.S. From the preliminary transcripts and the statements of the complainants, at least with respect to S.H. and S.K., the accused seemed to express some interest with urine and anal sexual acts. Finally, after either the assaults or sexual assaults or other conduct of the accused, all complainants expressed some fear of the accused (I would note that this similarity could be an expected reaction if the allegations of assault and sexual assault are proven beyond a reasonable doubt).

B. Analysis

10From the questions and answers given by the complainants at the preliminary hearing, there is no issue of identity of the accused and there is no issue that the alleged offences took place at his residence where he was residing in Sarnia. From the questions posed, there appears to be a clear suggestion or indication that the targeted defence is that the events did not happen (S.T. for example) or if they did happen, these incidents were with the consent of the complainants.

11The non-exhaustive factors that a court has to consider are set forth in R. v. Last as follows:

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 trial having regard to the evidence being called.

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 persons.

12Before I come to any determination, I should indicate in the clearest of reasons that although counsel for the accused in his application opines that the accused may testify as to one group of counts and not to another and makes that same submission with respect to each group of counts, there is no substantial evidentiary basis for these assertions. The assertion is merely a bald statement of a possibility and is decidedly different from the factual reality in Last where there was “an explanation for that intention that was objectively justifiable.” (paragraph 24 of Last )

13Furthermore, in Last , there was some indication that the accused was more likely to testify on the count in the indictment that appeared to deal with consent only as opposed to the count that focused on identification. This is certainly not the indication of defence counsel on the facts before me.

14In addition, defence counsel candidly indicated that his defence was either that the allegation did not occur or if it did, it was on consent. Even if this position of defence has been misstated or in the “thick” of submissions been misconstrued, in reading the transcript of the preliminary hearing, I would agree that the position of defence counsel appeared to be reflective of precisely those defences with respect to all complainants.

15In reviewing the other factors, I do not see inconsistent verdicts as a possibility in that the Crown would have to establish the elements of the offences beyond a reasonable doubt with respect to each count concerning each complainant. The complexity of the issues and length of trial are really all neutral events that do not appear to be noteworthy either from the submissions of counsel or within the contents of the preliminary hearing transcript.

16The issue of the legal nexus in these counts is mentioned in the Crown’s response to this application and will be explored in greater depth at the similar fact application. Suffice it to say, that the nexus on the facts in the case before me appear to be more significant than that which was before the court in Last . Although the complainants are different, there are many similarities including the type of unusual offences that occurred, where they occurred, how they occurred, and how the complainants were introduced to the accused (through the internet).

17Having concluded that the nexus or similarity in these offences is strong, nevertheless, in this type of application the potential of prejudice to an accused is apparent and noted by the Supreme Court of Canada in Last . Obviously, the credibility of the accused and the various complainants are placed squarely before the trier of fact who will be placed in the position of determining this important issue without regard or reliance upon propensity reasoning. This latter concern is noted in Last and R. v. Dorsey .

18This reality occurs whenever you have a number of allegations from a number of complainants and evidentiary matters that could create a negative undercurrent especially in dealing with sexual behaviour that is outside of what most jurors would consider the norm.

19Even in this era of “Fifty Shades of Grey”, the allegations of choking, administering of drugs, ‘urine assault’, and weapons such as a catheter, all have the potential of propensity reasoning on the part of a jury. Nevertheless on balance, excepting for the offences that are described against the minor, the nexus, of the offences I find is significant, the location and nature of the offences highly connected, and the rather unique behaviour or assaultive conduct is one that suggests that all of the offences should be tried together.

20Ironically, the offence against the minor, S.T., the daughter of S.K., are the only counts that defence counsel concedes that should be tried together with the counts reflective of offences against her mother. I agree, but excepting for the location in the residence of the accused in Sarnia, there is no nexus or similarity with any of the other offences in the indictment.

21In effect, excepting for the serious connection with the mother who moved to the accused’s residence from Thunder Bay, the offences themselves stand alone with little connection to nature of the offences or the alleged unusual behaviour of the accused in committing those offences. As stated, the connection to the mother and the move to Sarnia for a short period of time of four days is sufficient to have this count tried with the other fourteen counts of the indictment.

22For those reasons the severance application is dismissed.

Signed “John A. Desotti”

The Honourable Mr. Justice J.A. Desotti

Released: August 31, 2012

CASES CONSIDERED:

R. v. Last, 2009 SCC 45 , [2009] 3 S.C.R. 146 ;
R. v. Waudby , 2011 ONCA 707 ;
R. v. Minister, 2012 ONSC 1040 ;
R. v. Rose (1997), 1997 2231 (ON CA) , 100 O.A.C. 67 (C.A.) ;
R. v. Dorsey , 2012 ONCA 185 ;
R. v.Litchfield, 1993 44 (SCC) , [1993] 4 S.C.R. 33 , 86 C.C.C. (3d) 97 ;
R. v. Jeanvenne , (2010), 2010 ONCA 706 , 261 C.C.C. (3d) 462 (Ont. C.A.) ;
R. v. Thomas (2004), 2004 33987 (ON CA) , 190 C.C.C. (3d) 31 ;
R. v. Johnson, 2010 ONCA 646 , [2010] O.J. No. 4153 ;