ONTARIO
SUPERIOR COURT OF JUSTICE
‘ CITATION : Her Majesty the Queen v. Boone , 2012 ONSC 6003
COURT FILE NO.: CR-10-5086
DATE: 2012-10-22
B E T W E E N:
Her Majesty the Queen
Meaghan Cunningham and Louise Tansey-Miller, for the Respondent
Respondent
- and -
Steven Boone
Ian Carter and Meaghan Thomas, for the Applicant
Applicant
HEARD: September 10, 2012, in Ottawa, Ontario
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 517 OF THE CRIMINAL CODE
Madam Justice B. R. Warkentin
Reasons on SEVERANCE Application
[1] The Applicant stands charged with a number of offences on a 16 count indictment. The allegations arise from the fact that the Applicant engaged in sexual activities without disclosing the fact that he was HIV positive. The Crown has alleged that the Applicant not only failed to disclose his HIV positive status, but when asked by some of the complainants, he lied about his HIV positive status. The Crown has also alleged that the Applicant was deliberately trying to infect his sexual partners with HIV.
[2] With respect to four of the seven complainants, the Applicant engaged in unprotected anal sexual intercourse. The Applicant is charged with attempted murder as it pertains to those four complainants, in addition to other charges. The Crown claims that evidence from chat logs found on the Applicant’s computer will demonstrate that the Applicant was acting with the intent to infect all of the complainants with HIV.
[3] This is an application by the Applicant for an order pursuant to s. 591(3)(a) of the Criminal Code , R.S.C. 1985, c. C-46 [ Code ], granting severance from the indictment of all counts pertaining to BLW, one of the seven complainants. BLW is also one of the four complainants for which the Applicant is charged with attempted murder.
[4] On October 2, 2012 I granted the Applicant's severance application with these reasons to follow. On October 5, 2012 the Supreme Court of Canada released its decision dealing with the offence of aggravated sexual assault as it pertained to the transmission or risk of transmission of HIV. [1] To the extent my reasons in this application refer to the offence of aggravated sexual assault, they do not reflect the Supreme Court of Canada ruling because I had rendered my decision on this application prior to that ruling. There is nothing in that ruling that would affect my reasons on this application.
[5] The charges in this indictment as at October 2, 2012 relating to the 7 complainants are as follows:
a) BLW: attempted aggravated sexual assault, attempt to administer a noxious thing, sexual assault and attempted murder;
b) DS: aggravated sexual assault, administer a noxious thing and attempted murder;
c) MC: aggravated sexual assault, administer a noxious thing and attempted murder;
d) MB: attempt to administer a noxious thing, attempted murder;
e) BC: aggravated sexual assault;
f) DF: sexual assault; and
g) JB: sexual assault.
[6] For this application, counsel relied upon the evidence from the preliminary inquiry, together with the results of both a Certiorari Application and the Court of Appeal’s decision [2] , in upholding the Certiorari judge’s findings.
[7] The evidence expected at trial is that of the seven complainants, six engaged in consensual sexual interactions with the Applicant at the time the sexual activity occurred. Only BLW, who is developmentally delayed, claims that not all the sexual activity that he alleges occurred between he and the Applicant was consensual. It is the Applicant's position that not all the sexual activity BLW alleges, actually occurred. The Applicant also claims that with respect to the sexual activity that did occur, it was either consensual or the Applicant had an honest or mistaken belief that it was consensual.
[8] All of the complainants are young men, in their late teens or early 20’s. The sexual interactions between the complainants and the Applicant occurred between December 13, 2009 and April 30, 2010.
[9] Six of the complainants, including BLW, are expected to testify that the Applicant either lied about his HIV positive status or failed to disclose that he was HIV positive prior to engaging in sexual activity with them.
[10] The evidence of six of the seven complainants (including BLW) will be that had they known the Applicant was HIV positive, they would not have engaged in sexual relations with him or if they did, they would not have engaged in unprotected sexual relations. One of the seven complainants, MB, was HIV positive when he engaged in sexual activity with the Applicant. The Applicant had disclosed to MB that he was HIV positive prior to engaging in sexual relations. MB denied being HIV positive to the Applicant prior to engaging in sexual relations.
[11] Subsection 591(3)(a) of the Code states: “ The court may, where it is satisfied that the interests of justice so require, order that the accused or defendant be tried separately on one or more of the counts.” The onus of establishing, on a balance of probabilities, that the interests of justice require an order for severance lies with the accused.
[12] The Supreme Court of Canada in R. v Last , 2009 SCC 45 , [2009] 3 S.C.R. 146 (S.C.C.) , stated that the ultimate question for the trial judge in a severance application is to determine whether or not severance is required in the interests of justice:
The interests of justice encompass the accused’s right 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. (para. 16)
[13] Last , at para. 18, identifies a non-exhaustive list of factors to be weighed in determining whether or not to grant a severance application. The factors include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused 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 accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co-accused persons.
[14] It is the Applicant’s position that there should be a separate trial with respect to the four counts pertaining to the complainant BLW, for the following reasons:
a) The Applicant wishes to testify in response to the allegations of BLW, but not with respect to the other complainants;
b) The objective basis for wanting to testify regarding the allegations of BLW is that BLW’s allegations are different in nature than all of the other complainants and require a response from the Applicant;
c) There would be significant prejudice in having the jury hear the allegations of BLW at the Applicant’s trial with respect to the six other complainants; and
d) The Applicant wishes to elect trial by judge alone for the counts pertaining to BLW.
[15] It is the Crown’s position that severance of the counts related to BLW should not be granted for the following reasons:
a) The Applicant’s alleged desire to testify in respect of the charges relating to BLW and not the others is not objectively justifiable [3] ;
b) The fact that, unlike the other complainants, BLW will testify that some of the physical contact he had with the Applicant was not consensual does not change the nature of the defences available to Applicant;
c) The Crown expects to bring a similar fact evidence application at the conclusion of its evidence and submits that the likelihood of success on such an application is high; and
d) It is not in the interests of justice to require the complainants to testify at two separate trials.
[16] Counsel have agreed that the most significant factors to be weighed in this application are that the Applicant has expressed an intention to testify in relation to the charges regarding BLW, but not with respect to the other complainants; that the Crown will likely bring a similar fact evidence application at the close of its case; and the potential prejudice to the Applicant if the counts related to BLW are not severed from the indictment. The remaining factors of the Applicant’s desire to elect trial by judge alone with respect to the BLW charges and the cost of having two trials, while important, are not likely to be individually determinative of the issue in this severance application. Nevertheless, they must be considered as part of the weighing process.
Applicant’s Intention to Testify
[17] It is not sufficient for an accused person to merely assert that he intends to testify on one count and not another for a severance application to be granted. The accused must provide the court with sufficient information to establish an objective rationale for testifying on some counts and not on others. [4]
[18] Ultimately, the accused bears the burden of providing the trial judge with sufficient information to convey that there is substance to his intention to testify. The information provided to the trial judge must be objectively justifiable. For example, the information could include either the fact that there are different possible defences available to the accused on the severed counts or that the nature of the accused’s testimony will be different between the counts. Even if the accused’s desire to testify on some, but not all counts is objectively justifiable, the interests of justice may still require a joint trial. [5]
[19] Unlike the evidence of the other six complainants, the Applicant does dispute the nature of the sexual activity that occurred between BLW and himself and specifically denies any attempt at anal penetration during their sexual encounters and any non-consensual sexual activity. BLW claims there was attempted anal penetration and other sexual interaction that occurred without his consent.
[20] The Applicant's claim that there was no attempted anal penetration would provide him with a complete defence to the charges of attempted murder and attempt to administer a noxious thing regarding the BLW charges. This is different with respect to the remaining six complainants where there is no question that the sexual activity at the time it occurred was consensual and therefore the Applicant does not wish to testify with respect to those complainants.
[21] Additionally, the Applicant claims that he believed the sexual activity he admits that occurred with BLW was consensual. Counsel for the Applicant notes that it is common for an accused to testify when the issue in sexual assault cases rests on whether or not the complainant consented to the sexual contact or there was an honest but mistaken belief in whether or not the complainant consented. [6]
[22] The Applicant submits that his intention to testify with respect to BLW and not the others, is therefore objectively reasonable, and if those counts are not severed, it will place the Applicant in the position of having to testify about all of the other allegations if he wishes to testify in response to the BLW allegations.
[23] In these circumstances, the Applicant submits that his intention to testify with respect to some counts and not the others weighs heavily in favour of severance.
[24] Crown counsel agrees with the Applicant that there may be an objectively justifiable reason for the Applicant to testify with respect to BLW if he intends to dispute the sexual interaction BLW claims occurred. Crown counsel argues however, that this is insufficient to justify severance of all of the charges regarding BLW.
[25] The Crown argues that viewed objectively, it would make sense for the Applicant to testify about what his intent was with respect to all of the complainants when he engaged in sexual interactions with them. Thus, even if there is an objective basis for his reason to testify with respect to BLW, there is also an objective reason for him to testify on the other counts regarding his alleged lack of intent to attempt to commit murder.
[26] The Crown also argues that the consensual aspects of the sexual interactions that occurred between BLW and the Applicant may result in liability on those charges on the same basis as with the other six complainants, regardless of whether or not BLW says they were not consensual. It is the Crown’s position that even if the Applicant were to testify that BLW consented to the sexual acts in question, or that the Applicant had an honest but mistaken belief in BLW’s consent, this evidence would not provide the Applicant with a defence to the charges of aggravated sexual assault and sexual assault with respect to BLW. In the Crown’s theory of the case, none of the complainants consented to the sexual relations with the Applicant by virtue of the fact that the Applicant’s dishonesty with respect to his HIV status amounted to fraud so as to vitiate their consent. [7]
[27] The Crown submits therefore that the Applicant has failed to provide the court with sufficient information to establish an objective rationale for testifying on some counts and not on others.
Legal and Factual Nexus between the Counts
[28] The Applicant argues that there is no factual nexus between the counts involving BLW and the other complainants . The Applicant does admit that there is some legal nexus because the elements of the various offences are the same. For example, the elements of attempted murder are the same regardless of which complainant the charge relates to. The counts on the indictment that relate to BLW are the same as the counts that relate to some of the other complainants. The Applicant submits that legal nexus alone bears little weight when there is almost always a legal nexus where the accused faces the same charges with respect to multiple complainants.
[29] In contrast, the Crown submits that there is a factual and legal nexus between the counts relating to BLW and the other complainants and that there is also a factual nexus that exists, both as part of and apart from the similar fact evidence of the complainants. The factual nexus apart from the evidence of the complainants comes from the significant body of evidence from chat logs and other evidence which speaks to the Applicant's intent.
[30] Counsel advised that in addition to the expert witnesses and the complainants themselves, over 3,000 pages of text messages and chat room discussions of the Applicant, taken from his computer will be introduced as evidence. This evidence contains communication by the Applicant to many other individuals, including the complainants; is sexual in nature; and is expected to demonstrate that the Applicant was using text messages and chat rooms to arrange sexual encounters that actually occurred.
[31] In the chat logs, the Applicant reveals to some that he is HIV positive and that he intentionally became infected. He also speaks about lying about his HIV status in order to induce others to engage in unprotected sex so as to infect others with HIV. He makes reference to the fact that he is sexually aroused by the idea of infecting someone with HIV and that he was refraining from using medication for HIV specifically because he believed he would be able to infect more individuals than if he was taking medication.
[32] The chat log evidence also suggests that the Applicant sought out younger men to infect because he loved the idea of knowing that he might be marking them for life by turning them HIV positive.
[33] The Crown claims that all of this evidence demonstrates a factual nexus between the counts of all of the complainants.
Similar Fact Evidence
[34] While it is the accused who brings a motion to sever under s. 591(3)(a) of the Code and bears the burden of establishing, on the balance of probabilities, that the interests of justice require an order for severance, it is the Crown who brings an application to admit similar fact evidence. Such an application is usually brought at the conclusion of the Crown’s evidence at trial and it is the Crown who bears the burden of demonstrating that similar fact evidence should be admitted.
[35] For the purposes of this severance application, it is important not to confuse admissibility with severance. Thus, if this severance application is dismissed, it will still remain to be determined whether the Crown will be entitled to admit similar fact evidence at trial. Similarly, the fact that the Crown has indicated that a similar fact evidence application will likely follow after the close of the Crown’s case, does not shift the burden from the Applicant to the Crown with respect to this severance application. [8]
[36] The test is whether or not the Crown has a viable argument for a similar fact evidence application. [9]
[37] The Crown argues that there is a viable similar fact argument in this case that they will advance at the conclusion of the Crown’s case.
[38] Counsel for the Applicant submits that there is little likelihood that the Crown would be successful in such an application.
[39] While presumptively inadmissible, similar fact evidence may be admitted if the Crown demonstrates, on a balance of probabilities, that the probative value of the evidence outweighs its potential for prejudice. In the context of this case, the potential for prejudice would be the risk that the jury will misuse the evidence. The fact that the evidence may be incriminating however, is not the type of prejudice that would make the evidence presumptively inadmissible. [10]
[40] When assessing the Crown’s position regarding the viability of success of a similar fact evidence application, it is necessary to first determine the live issues for the trial. [11]
[41] The Crown contends that the live issues on all counts on the indictment are whether or not:
a) the law required the Applicant to be truthful to his sexual partners about his HIV status;
b) the Applicant intended to kill the four complainants (on the attempt murder charges), one of whom is BLW;
c) the Applicant’s conduct on these counts endangered the lives of those four complainants, and;
d) the nature of the Applicant’s conduct in failing to disclose his HIV status amounted to fraud, thereby vitiating any consent to sexual relations that occurred because it put all the complainants at significant risk of serious bodily harm.
[42] Counsel for the Applicant argues that the only live issue for the trier of fact is whether or not there was a significant risk of serious bodily harm to the complainants as a result of the sexual interactions that occurred. The Applicant contends that there is insufficient evidence of any intent to kill the complainants (on the attempt murder charges) and that the consent to engage in sexual activity with the complainants was not vitiated by fraud because there was no significant risk of serious bodily harm (on the sexual assault and aggravated sexual assault charges).
Position of the Applicant
[43] Counsel for the Applicant submits the following are the factors that demonstrate the Crown would unlikely be successful on a similar fact evidence application at trial:
a) the issue of significant risk of serious bodily harm is a question to be dealt with by the expert witnesses and not by the complainants;
b) the probative value of the similar fact evidence is diminished because the Applicant is unlikely to deny that he failed to disclose his HIV status and there is no real dispute that the sexual acts occurred, with the exception of some of the acts that BLW claims were non-consensual;
c) the Applicant claims there was no anal penetration regarding BLW, which, given that his intent is a significant part of the Crown's case, he has a complete defence to offer to the attempt murder and attempt to administer a noxious thing charges regarding BLW but not the other complainants.
d) because the trier of fact will already have the evidence of the Applicant's failure to disclose his HIV status as contained in the chat logs, there is no need to consider the evidence of each of the complainants as it pertains to the counts of the other complainants;
e) with respect to the issue of the Applicant’s intent, the testimony of one complainant is irrelevant to the evidence of another complainant because none of the complainants will likely be able to say that the Applicant intended to kill them; and
f) that even if a similar fact evidence application was granted and the BLW counts severed, there would still be the evidence of the six remaining complainants that could be used for that purpose.
[44] For these reasons, Counsel for the Applicant argues that there is little likelihood of success of a similar fact evidence application by the Crown therefore; the Crown has not met the threshold test to demonstrate it would have a viable argument on a similar fact evidence application.
Position of the Crown
[45] The Crown’s position that it has a viable argument for a similar fact evidence application, is as follows:
a) BLW’s evidence should be admissible on the counts relating to the other complainants, and, in turn, that the evidence of the other complainants be admissible on the counts relating to BLW;
b) all of the complainants are young men in their late teens and early 20’s and that, taken together, all of the complainants’ evidence demonstrates a pattern of behaviour that speaks to and is probative of the Applicant’s intent and also corroborates the evidence of each complainant;
c) the Applicant is charged with attempting to murder four of the complainants one of whom is BLW, when he either ejaculated into their anuses or attempted to do so with the intent of infecting these young men with HIV, understanding full well that this could cause their deaths; and
d) In order to understand the Applicant’s intent as it relates to BLW, the other complainants’ evidence is relevant because it is part of a pattern of conduct involving a number of distinctive acts against all the complainants. This pattern of conduct is necessary to demonstrate what the Applicant’s intent was in behaving the way that he did. The Applicant’s actions must be viewed in the context of the pattern of his conduct in relation to sexual partners.
[46] The Crown points to the fact that all the complainants are younger and more vulnerable than the Applicant and BLW is the most vulnerable of the group. The Applicant's interest in BLW was purely sexual and part of the pattern to infect vulnerable young people.
[47] The Crown notes that this demonstrates a pattern that they will be seeking to establish with similar fact evidence and that this pattern is not fully revealed without BLW's evidence.
[48] The Crown submits that, as the similar fact evidence is highly probative of the Applicant’s intent, which will be a central issue in the trial, and that the evidence corroborates each complainant’s evidence to show a pattern of conduct, the Crown has met the threshold test of establishing a viable argument on a similar fact application.
Prejudice to the Applicant
[49] The prejudicial effect on an accused person of a jury hearing the allegations of one complainant at the trial of another can be significant, and a compelling reason to order severance, particularly when the allegations of one complainant are more serious than the allegations of the others. [12]
[50] Counsel for the Applicant argues that the allegations of BLW are likely to cause sentiments of revulsion and condemnation in the jury members because he claims some of the sexual interaction was not consensual and because of the fact that BLW is developmentally delayed.
[51] It is the Crown's position that the evidence that BLW is developmentally delayed alone would not result in prohibited propensity reasoning by the jury and therefore is not grounds for granting the severance application. The Crown submits that the danger of arousing sentiments of revulsion in the jury are not removed if the BLW charges are severed because the content of the chat logs is such that those sentiments will likely be aroused due to the explicit nature of those chat logs.
[52] The Crown argues that any potential prejudice of retaining the BLW charges in the same indictment as with the remaining 6 complainants is low and highly unlikely. The Crown also claims that any possibility of prejudice can be reduced by proper jury instructions.
Other Factors
[53] Counsel for the Applicant has indicated that if the counts regarding BLW are severed, the Applicant will re-elect to have the trial on the BLW charges by judge alone. Crown counsel has indicated that they would not oppose that re-election.
[54] Absent a successful similar fact evidence application by the Crown, the Applicant argues that there would be no overlap in witnesses, with the exception of the Crown expert witness. Counsel for the Applicant suggested that having a single witness stand for two separate trials would not create a significant burden on judicial resources.
[55] The Crown submits that hearing the counts relating to BLW together with the other counts would not add to the complexity of the proceedings and is the more efficient way to proceed, given the significant body of evidence that would have to be called in two trials if severance is ordered.
[56] Both parties agreed that the issues regarding a judge alone trial and the difficulties posed by having two separate trials are not sufficient individually in this case, to weigh in favour of severance, but do form part of the weighing process.
Conclusion
[57] In considering the factors to be weighed in the circumstances of this particular case, I have found that the Applicant has established, on a balance of probabilities, that severance is necessary and in the interests of justice.
[58] While I accept the Crown's position, on the evidence in this application, that it has a viable similar fact evidence position to advance at trial and that the probative value of the similar fact evidence will likely outweigh any potential prejudice that might exist, I find that the basis for the Applicant's desire to testify regarding the BLW counts and not the others outweighs all of the other factors in this application.
[59] The fact that the Applicant has stated that he has a desire to testify that some of the sexual acts that BLW has alleged did not occur would provide him with a defence he would not otherwise have without testifying. I therefore find that the Applicant has established an objective basis for taking a different position with respect to BLW as it relates to the other facts that will be at issue in the trial.
[60] I disagree with the Crown that there is an equally objectively justifiable reason for the Applicant to testify with respect to the remaining six complainants regarding his intent as it pertains to infecting others with HIV. The Applicant is not obligated to testify on any counts should he choose not to, nor is he obliged to satisfy the court that his decision not to testify on the remaining counts is justified.
[61] Counsel have already agreed that the factors related to a re-election to judge alone in the BLW charges and the difficulties posed by having two separate trials are not factors that of themselves, would justify either severance or a decision not to sever. Therefore, I will not elaborate further on these factors, except to the extent that counsel have agreed that by granting the severance applicant, I will remain seized with the trial regarding the BLW counts for which the Applicant will re-elect on consent of the Crown to a hearing by judge alone.
[62] For these reasons I grant the application for severance of the counts in the indictment as they relate to BLW.
Madam Justice B. R. Warkentin
Released: October 22, 2012
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 517 OF THE CRIMINAL CODE
COURT FILE NO.: CR-10-5086
DATE: 2012-10-22
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen Respondent
- and –
STEVEN BOONE Applicant
REASONS ON APPLICATION
Warkentin J.
Released: October 2, 2012
[1] R. v. Mabior , 2012 SCC 47
[2] R. v. Boone , 2012 ONCA 539 .
[3] Last at para. 26 & 27
[4] Last , at para. 26
[5] Last , at paras. 26-27 .
[6] R. v Shimizu , [2010] O.J. No. 5820, at para. 38 (Sup. Ct.)
[7] R. v. Cuerrier , [1998] 2 S.C.R. 371 .
[8] R. v. Arp , [1998] 3 S.C.R. 339 , at para. 52 .
[9] R. v. Minister , 2012 ONSC 1040 , at paras. 46-47 .
[10] R. v. Woodcock , 2010 ONSC 1112 , at para. 4 .
[11] R. v. C.P.K. , 62 O.R. (3d) 487 , at paras. 31-34 .
[12] Last , at para. 44 ; R. v. Thomas , 72 O.R. (3d) 401 , at paras. 35-37 ; and R. v. Jeanvenne , 2010 ONCA 706 , at paras. 43-47 .