COURT FILE NO.: CR-12-00000073-00

DATE: 2012-10-31

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – L.S.¹ Applicant

K. Hull, for the Crown
B. Cunningham, for the Applicant

HEARD: October 29, 2012

HEALEY J.

[ 1 ] This is an application by the accused to sever count one from the remaining counts in the information pursuant to section 591(3) (a) of the Criminal Code .

[ 2 ] The onus is on the accused to establish on a balance of probabilities that the ends or interests of justice require that the application be allowed.

[ 3 ] Count one is a charge of sexual assault against L.S.2 (“L.S.2”), the accused’s daughter.

[ 4 ] Counts two through five are one each of sexual assault, sexual touching, invitation to sexual touching and assault against A.S. (“A.S.”), the accused’s step-granddaughter.

[ 5 ] Counsel are in agreement that the factors to be considered on such an application are those set out in R. v. B.( M.O.) , [1998 ] B.C.J. No. 560 (B.C.C.A.), and include:

1. The factual and legal nexus between the counts;
2. The general prejudice to the accused;
3. The desire of the accused to testify on certain counts; and
4. The desirability of avoiding several trials.

[ 6 ] The Crown also submits that the decision whether to order severance is one within the discretion of the trial judge, to be exercised only where the accused has shown that the ends of justice require it: R. v. McNamara (No. 1) 1981 (ON CA) , [1981] O.J. No. 3254 (O.C.A.).

[ 7 ] The most complete articulation of the test is set out in R. v. Last 2009 SCC 45 , [2009] 3 S.C.R. 146 (S.C.C.) at para. 18 . In that case the Court listed a series of factors that trial judges should consider when determining whether or not the interests of justice require an order for severance, which include:

1. The factual and legal nexus between the counts;
2. General prejudice to the accused;
3. The complexity of the evidence;
4. Whether the accused person wishes to testify on some counts but not others;
5. The possibility of inconsistent verdicts;
6. The desire to avoid a multiplicity of proceedings;
7. The use of similar fact evidence at the trial;
8. The length of the trial having regard to the evidence to be called;
9. The potential prejudice to the accused with respect to the right to be tried within a reasonable time; and
10. The existence of antagonistic defences as between co-accused persons.

[ 8 ] The significant facts are that it is alleged by L.S.2 that she was sexually assaulted by her father in about 1984. Her evidence is that the accused sexually assaulted her on two occasions when she was between 10 to 12 years old, approximately 28 years ago. On both occasions they were alone in the family home. The first of the alleged assaults involved touching L.S.2 with his genitals and hands, by holding her against him in bed. There was a form of struggle and L.S.2 got away. With respect to the second occasion, L.S.2’s mother, H.S. (“H.S.”), is expected to testify that she came home to find the two of them laying on the floor and, on stating that she was going to bed, L.S.2 said “well, take him with you because he is doing again”. Despite that statement H.S. did not believe L.S.2 when, sometime later, L.S.2 told her mother and brother about the accused’s earlier touching. L.S.2’s evidence is that H.S. blamed her daughter and L.S.2 moved out of the house as a result. On the second occasion, her evidence is that the accused was fondling her breasts under her pyjamas and over her pyjamas on her genitals.

[ 9 ] The allegations against the accused involving A.S. arise more recently. They span a six year period between January 2004 and July 2010, when A.S. was between six and twelve years old. The events are alleged to have occurred at A.S.’s home and the accused’s home, sometimes when others were at home. The allegations involve fondling her breasts under her shirt, rubbing her thigh and attempting to get his hand down her pants, sometimes successfully, and digitally penetrating her. He is alleged to have grabbed her hand and directed it to his own genitals. On another occasion the accused is said to have pulled his pants down while in the garage with A.S., then her own pants, and attempted to pull her on top of him. A.S. describes during her statement to the police that she was often restrained by the accused while she struggled to resist and get away. A.S.’s evidence is that some of this touching occurred while she was watching T.V., when the accused would attempt to fondle her under a blanket even though his wife and other family members were present in the home.

[ 10 ] H.S. is a witness with a potentially significant part to play in this trial. With respect to count one, she is expected to testify as to her recollection of events for the purpose of corroborating L.S.2’s evidence. She will also testify regarding A.S.’s eventual disclosure to her own parents. She will also testify about a conversation occurring before this disclosure, when H.S., in the presence of L.S.2, invited A.S. to tell them about any inappropriate touching.

[ 11 ] Although the accused submits that there is no legal and factual nexus between these counts because of the time period, severity of the acts and circumstances surrounding their commission, I disagree. As explained in R. v. B.(L.) ; R. v. G.(M.A.) 1997 (ON CA) , [1997] O.J. No. 3042 (Ont. C.A., leave refused) [1997] S.C.C.A. No. 524 (S.C.C.) at para. 37 , it is important to look at what may be the more compelling circumstances surrounding the alleged acts. As the Crown argued, and I accept, the similarities are extensive. The complainants are members of the accused’s family. The alleged acts are said to have occurred in privacy or a situation of pseudo-privacy i.e. under a blanket when opportunity arose. They involve the accused being in a position of authority and/or in a care-giving role, and using the opportunities provided by those positions. There is an overlap in the complainants’ ages during the alleged events. The accused is said to exert just enough physical restraint over the complainants to carry out his intended purpose.

[ 12 ] As the Crown argues, trial fairness requires that the jury be permitted to evaluate the veracity of A.S.’s evidence – in particular her allegation that some of these events occurred while H.S. was in the home – in the context of the events that transpired with L.S.2. That is, that L.S.2 alluded to the touching in front of the accused and her mother, and H.S. did not believe her. The Crown asserts that this evidence is necessary for the triers of fact to evaluate the issues of motive and opportunity in relation to the charges. I agree. It would be open to the triers of fact to accept A.S.’s evidence that these events occurred even when H.S. was in close proximity, as the Applicant may not have believed H.S. to be a threat to his plan based upon the history. H.S.’s evidence has strong probative value in exploring the circumstances of counts one through five, and is what binds those counts. This is one of those cases where a single trial is required for completeness of narrative and context.

[ 13 ] The Crown plans to bring a similar act application if the counts are not severed. Due to the similarity between the allegations as outlined in paragraph 11 above, this appears to be one of those cases where the use of evidence on one count may well be admissible on the others because its use goes beyond any propensity reasoning and impacts on the material issue of whether the accused is more or less likely to have taken the opportunity to commit the offences in question.

[ 14 ] The Crown also argued that the accused’s videotaped statement to the police is significant in this case. The accused will attempt to have that statement excluded at trial. Having read the transcript, I cannot agree with the Crown’s submissions that the degree to which the video would have to be edited would render the potential evidence meaningless if these counts were to be severed. Nonetheless, there are otherwise sufficient reasons to deny the application in the interest of justice, and this single factor is not determinative.

[ 15 ] The accused argues that he will be prejudiced because he may want to testify on count one but not the other counts. Although I was given no authority, it would seem that the accused, who bears the onus, would have to provide something other than this general statement. For example, he may need to suggest the general nature of his testimony or to give some information as the potential defences open to him. Although the accused relied on R. v. B.(M.O.) , supra, as authority for the proposition that this is a factor in determining whether to sever the counts, the British Columbia Court of Appeal in the cases of R. v. McMath (1997), 1997 (BC CA) , 121 C.C.C. (3d) 174 (B.C.C.A.) at para. 37 and R. v. Steele (2006), 2006 C.C.C. (3d) 327 (B.C.C.A.) at para. 15 has confirmed that the accused’s wish to testify on some counts but not others is an important, but not determinative, factor as to whether severance should be granted or refused.

[ 16 ] Given the overlap in witnesses required to provide evidence on all counts, and in particular the important evidence of H.S., there is an interest in avoiding a multiplicity of trials.

[ 17 ] Although this is not a case where there is no prejudice to the accused in keeping the counts together, the balancing of all of the preceding considerations leads to the conclusion that the accused has not met the onus in this case. This is case in which a proper instruction to the jury on the use of potentially prejudicial evidence will suffice to alleviate the danger that the jury will misuse the evidence. It always remains open to the trial judge, as the evidence progresses at trial to determine as a matter of law that evidence on one count is not admissible on the other counts if the Crown’s “similar act” application is denied.

[ 18 ] For the foregoing reasons the application is dismissed.

HEALEY J.

Released: October 31, 2012