COURT FILE NO.: 258-11
DATE: 20121126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.C.L.
Applicant
Andrew Slater, for the Crown
Michael J.N. Haraschuk, for the Applicant
HEARD: September 4, 2012
DECISION ON APPLICATION TO SEVER
hennessy j.:
Background
[1] The accused is charged with historical sexual offences against two complainants on a seven count indictment dated October 24, 2011. The complainant D.Z. is the stepson of the accused. The complainant R.R.Z. is the step-grandson of the accused and the son of the complainant D.Z..
[2] There is a single count on the indictment with respect to the complainant D.Z.. He alleges that he was sexually assaulted by the accused when he was between the ages of 8 and 13, in the home he lived in with his mother and stepfather in Hagar, Ontario. He claims that the majority of the assaults took place at night in his own bed in his bedroom, with additional one-time incidents taking place in the barn, in the laundry room, in a car, and at another house where the family was visiting. D.Z. claims that there were approximately 30 to 40 incidents of sexual assault, which are alleged to have included fellatio on D.Z. and masturbation of the accused.
[3] There are six counts on the indictment related to the complainant R.R.Z., who alleges that he was sexually assaulted by the accused when he was between the ages of 10 and 15, when he visited the accused at the same home in Hagar, Ontario. At that time, R.R.Z.’s parents had separated and he lived with his mother, who brought him for extended visits with his step-grandfather. D.Z. did not live in Ontario and was not involved in bringing R.R.Z. to the home of the accused. R.R.Z. alleged that the assaults usually occurred at night in the bed and the bedroom of the accused, which is where he slept during the visits, and once in the living room. The assaults are alleged to have included fellatio on R.R.Z. and masturbation of the accused. The allegations also include approximately fifty incidents of crotch grabbing, which usually occurred in the living room.
[4] D.Z. alleged that the accused made an admission to him with respect to the assaults on R.R.Z..
[5] The accused brought an application to be tried separately on the counts related to each of the complainants. The Crown opposed the application, asserting among other things that even if the counts were severed, they would seek to adduce the evidence with respect to each complainant in the other trial as similar fact evidence.
The Law
[6] Section 591(3) of the Criminal Code, R.S.C. 1985, c. C-46 permits the court to sever the counts on an indictment “where it is satisfied that the interests of justice so require.” Justice includes society’s interest in getting to the truth of the charges as well as the interest of both society and the accused in a fair process: R. v. Handy, 2002 SCC 56, 2 S.C.R. 908, at para. 150.
[7] On an application for severance, the accused bears the onus of showing on the balance of probabilities that a severance of the counts is required in the interest of justice.
[8] In R. v. Last, 2009 SCC 45, 3 S.C.R. 146 at para.18, the Supreme Court of Canada laid out a non-exhaustive list of factors to be considered on an application for severance:
• The general prejudice to the accused;
• the factual and legal nexus between the counts;
• the complexity of evidence for one count but not another;
• the possibility of inconsistent verdicts;
• whether the accused wishes to testify on some of the counts and not others;
• the desire to avoid multiplicity of proceedings;
• the use of similar fact evidence at trial;
• the length of the trial considering the evidence to be called;
• the potential prejudice to the defendant with respect to the right to be tried within a reasonable time; and
• the prejudice that may result in holding a single trial.
Analysis
General Prejudice to the Accused
[9] The question to be asked on the issue of prejudice is whether there is a risk that the accused will not get a fair trial. On that issue, the court must assess the risk of both moral prejudice and reasoning prejudice, as defined in R. v Handy at paras. 99 and 139 respectively. Although Handy was a decision that addressed the question of admissibility of similar fact evidence, with a different onus than the one before the court, it includes a useful discussion of prejudice.
[10] The Crown argues that the risk of improper or tainted reasoning does not exist because of the accused’s election to be tried by judge alone. The accused submits that risks still exist notwithstanding the training and experience of the judge who will hear the matter.
[11] The risk of moral prejudice arises when evidence may be taken by a fact-finder as proof of bad character rather than for its intended purpose, and by extension as proof that the accused is therefore the kind of person who would be likelier to commit a certain type of offence. In Handy, the court affirmed the existence of this risk in the context of a jury trial where there would be two sets of evidence, one which was much more inflammatory than the other.
[12] In this case, with both complainants, the allegations include sexual touching and fellatio on a youth under the age of 16, where the accused was in a position of trust. There are no allegations of coercion, or threat or weapons in either of the allegations. One set of allegations is no more inflammatory than the other.
[13] The defence suggested that the accused’s status as an ordained priest may give rise to a heightened risk of moral prejudice. Sometime after the complainant D.Z. left home, his mother died and the accused was ordained as a Roman Catholic priest, a status he continued to hold during the period of time that the complainant R.R.Z. alleges he was sexually assaulted. The defendant argued that this difference in status is a factual difference between the counts and, further, that this status as a priest carries with it an increased risk of moral prejudice, since allegations of sexual assault by an ordained priest are more reprehensible and therefore more inflammatory than allegations of sexual assault by a stepfather on his son. With respect I beg to differ. The Criminal Code dictates that sexual assault by a person in a position of trust is an aggravating factor. In both sets of allegations, the accused was in a similar, familial position of trust; he did not come into contact with R.R.Z. in the context of his role as a priest, but rather as his step-grandparent. While it may be that a certain subset of the population would find the ordained status of the accused to be additionally inflammatory, it is not relevant to this analysis.
[14] The concern over reasoning prejudice arises from the fear that evidence properly admissible on one count may contribute to confusing and distracting the finder of fact with respect to other counts. In this case, the defence is concerned about the fact-finder assessing the claims of one complainant while also hearing allegations of other incidents involving a different complainant more than 20 years earlier or later.
[15] The question here is would a judge hearing allegations that the accused had sexually assaulted his stepson be more likely to believe that twenty years later he would sexually assault his step-grandson? Or would a judge be able to assess each of the complainants’ evidence separately and render a fair verdict based on the evidence solely with respect to the individual complainant. While judges are no less human than juries and therefore no less subject to the influence of certain facts and sentiments, the criminal justice system is based on a confidence that judges, by training and experience, can dispassionately apply the rules of evidence in ways that juries cannot. I point to Corbett applications and Charter applications to exclude evidence as two of the more obvious examples where we put our faith in judges to inoculate themselves from the risk of improper reasoning. Although the risk of tainted reasoning exists, where there is a judge alone trial as here, it is largely minimized.
Factual and Legal Nexus
[16] The Crown argued that there is a strong factual nexus between allegations relating to the two complainants and points to the following similarities:
• The age range of the complainants at the time of the alleged conduct;
• the type of conduct: touching, masturbating and oral sex;
• the incidents took place in the same house; and
• the familial relationship and position of trust. (Note that the Crown argued that the accused’s status as a priest is irrelevant to any consideration of the relationship between the accused and the complainant.)
[17] The defendant pointed to the differences between the charges related to the two complainants:
• The 20 years between the two sets of assaults;
• the ages of the complainants: D.Z. was aged 8 to 12 and R.R.Z. was aged 10 to 15;
• the fact that D.Z. claims he only ejaculated once while R.R.Z. is alleged to have ejaculated more than once or every time there was fellatio;
• the assaults on D.Z. allegedly occurred during the time that the accused was married to the mother of D.Z. and D.Z. lived with the couple; and
• the assaults on R.R.Z. allegedly occurred during the period when the accused was a widower and an ordained Roman Catholic priest, and R.R.Z. was visiting over the weekend or the summer vacation.
[18] Similar facts are not the same as a factual nexus. The concept of factual nexus includes inter alia whether there would be substantively overlapping transactions (R. v. Ticknovich, 2003 ABQB 597, 353 A.R. 8, at para. 70). Nexus connotes connection, bond, or link. The Dictionary of Canadian Law (Scarborough: Thomson Canada Limited, 2004) defines nexus as “a casusative relationship. Bond, connection, chain.”
[19] In R. v. Arp 1998 CanLII 769 (SCC), [1998] S.C.J. No. 82 at para. 52, Cory J. warned against confusing admissibility of similar fact evidence with the severance analysis. In this case, the relationship and the venue are a link between the accused and each of the complainants and would likely be emphasized in a similar fact application. However, they are not so much of a link between the complainants. A factual nexus often refers to a continuity of events, time and means. Where there is a clear factual nexus, the logic of a joint trial is more compelling than where there are multiple sets of events, linked together only by the identity of the person charged and the place where the events occurred: see R. v. Ticknovich at para. 66. In this case, D.Z. was not involved in R.R.Z.’s life for a period of time, and did not introduce R.R.Z. to the accused nor otherwise play a role in bringing the accused into his son’s life. The Crown will have to prove two completely distinct sets of facts but for the alleged admission made by the accused. No factual point or issue can be proven vis à vis one complainant and be binding vis à vis the other complainant. The Crown’s position on factual nexus confuses nexus with similar fact.
[20] The concept of legal nexus refers to whether there would be a substantively overlapping transaction or transactions, or whether there would be essential elements in common as between Counts so as to raise the risk of inconsistency of verdict if severance occurred or whether there is a commonality of the matters such as to give rise to potential for a res judicata confusion.
[21] There is no overlap of transactions in the two sets of allegations. Proof of the elements of the offence relating to D.Z. will not assist in the proof of the elements of the offences relating to R.R.Z.. The lack of a strong factual or legal nexus weighs in favour of severance.
Similar Fact Evidence Motion
[22] The Crown submits that it intends to bring a similar fact evidence application as part of its closing submissions at a joint trial and that it is likely to be successful on the motion. The Crown argues that this factor weighs significantly in favour of a joint trial on all of the counts.
[23] On a similar fact evidence application, the crown bears the burden of proving on a balance of probabilities that the probative value of the evidence outweighs its potential for prejudice: R. v. Handy at para. 55.
[24] Where the Crown relies on its intention to bring a similar fact application in support of its opposition to a motion for severance, it would not be an unusual practice to bring the similar fact evidence application at the same time as the severance application. In R. v. Last, the court commented at para. 33:
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 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.
[25] On this motion, the Crown argued that it was likely to succeed on the similar fact evidence motion. Other factors to be considered on this motion for severance, including possible delay and multiplicity of proceedings that would flow from severance, are closely tied to the issue of the similar fact evidence finding.
[26] The defendant argued that the motion was unlikely to succeed in view of reliability issues stemming from possible collusion between the complainants and the prejudice to the accused if similar fact evidence was admitted.
[27] In R. v. Arp, the court set out what may be called a threshold test for the admissibility of the similar fact evidence at para. 43:
The more distinctive or unique the conduct, the more situation specific the circumstances of the similar act offence and the offence charged and the greater the similarity between the subject charges and the discreditable conduct on other occasions, the more likely the probative/prejudice test will be satisfied.
[28] A determination on a similar fact motion involves a weighing of probative value of the evidence versus potential prejudice to the accused. The probative value of the evidence of both complainants in one trial could be to help the court accept the required double inference that the accused had a situation-specific propensity to engage in this type of conduct, and that he acted on those occasions in question in accordance with that propensity. This very narrow type of situation-specific propensity reasoning is permissible and is capable of being admissible in the context of a particular case.
[29] The necessary inferences are only possible if there is a high degree of similarity between the acts that render the likelihood of coincidence objectively improbable.
[30] However, because the similar fact evidence application was not before the court at this time, the Crown has not yet identified with any precision the issue in question or inference(s) that the court would be asked to accept as part of a the application.
[31] Thus I am in no position to assess the probative value of the evidence on the question of admissibility.
[32] While the court on a similar fact evidence application will consider the above factual similarities, the defence has pointed out that it will also be faced with an argument that the ‘similar fact’ evidence is unreliable given the possibility of collusion, which could decrease the likelihood that this motion would be successful. The defendant relies on evidence from the preliminary hearing that the complainants discussed the matter in a telephone call in the day or days before the complaint was made. In R. v. Handy the court said that once there is some evidence of actual collusion or an ‘air of reality’ to the allegation, the Crown has the persuasive (legal) burden to negate the collusion. I cannot say on the basis of what was before me whether this possible actual collusion or risk of innocent collusion would be sufficient to defeat the motion.
[33] The defence further argued that the risk of prejudice stemming from a finding of admissibility of similar fact evidence would likely defeat the motion to allow it. He argues that a judge hearing the motion would recognize and want to avoid the risk that as trier of fact she or he might be improperly influenced by facts outside the actual count on the indictment.
[34] I cannot say that the similar fact application is likely or not likely to succeed. It is a live issue. The fact that the Crown has committed to bringing a similar fact evidence application is a factor that weighs somewhat in favour of having the counts tried jointly.
Desire to Avoid Multiplicity of Proceedings
[35] The complainant D.Z. resides in Alberta. He would have to testify at both trials, on the allegations in his own trial and in the R.R.Z. trial on the allegation that the accused made an admission to him of the assaults against R.R.Z.. If the counts are severed, both complainants will have to testify at a pre-trial motion to admit similar fact evidence as well as at the trial dealing with their allegations.
[36] This factor weighs in favour of a single trial.
Length of Trial
[37] The entire length of a single trial will be one to two weeks. Two trials and a similar fact motion will likely add a few days to this estimate.
[38] This factor is neutral.
Right to be Tried within a Reasonable Time
[39] There will likely be some delay caused by severance. For some reason counsel for the Crown and the defendant did not want to set a trial date before the decision on this motion. In my view, at least one trial date could have and should have been set on the first Assignment Court to reduce delay as much as possible. I have instructed the Court to assign a trial date at the next assignment court.
Factors not relevant in this case
[40] The following factors are not relevant to this analysis:
• The complexity of the evidence: The trials will not involve complicated evidence.
• Whether the accused intends to Testify in One Case and Not the Other: Counsel advised that the defendant has not made a decision in this regard.
• Possibility of Inconsistent Verdict: Different verdicts on the counts in this indictment would not be an inconsistency.
• Antagonistic Defences: There is a single defendant.
Balancing the Factors and Assessing the Interests of Justice
[41] The onus is on the defendant to show on a balance of probabilities that a severance is required in the interests of justice. The risk of prejudice to a fair trial for Mr. J.C.L. exists to a limited extent in this case, arising as it will from the risk of improper reasoning based on propensity. Two factors stand out as weighing in favour of a single trial: the desire to avoid a multiplicity of proceedings and the potential for a successful similar fact evidence application. Obviously these two factors are linked. The intention of the Crown to bring the similar fact evidence application means that there will not simply be two trials if there is an order for severance, there is the possibility of three proceedings. The two trials will be preceded by the similar fact evidence application. In cases such as this, where the Crown’s strongest argument in opposition to a severance application is their intention to bring a similar fact evidence motion, it would be preferable that they either bring that motion at the same time or at the very least, flesh out sufficient evidence and propositions respecting proposed inferences and responses to the collusion argument that the court can make a threshold determination.
[42] A decision to sever the trials would create the possibility of three short proceedings instead of a single trial. Had the motion for similar fact evidence been brought with the motion for severance we would be looking at two proceedings versus one joint trial. There may be good reason for the Crown not to take the opportunity of this motion appearance to argue its similar fact evidence motion, however, it was not laid out for this court. The Crown bears the burden on that motion and it has not demonstrated that it would likely be successful. The mere intention of the Crown to bring a similar fact evidence motion should not in itself be sufficient to tip the balance in favour of a single trial.
[43] In this jurisdiction, it is possible to get quick trial dates for short trials, subject to the availability of counsel.
[44] The defendant has shown there is some risk of prejudice arising from the possibility of tainted reasoning. There is no reason to entertain this risk when there are no obvious or at best minimal benefits to a joint trial. Where there are minimal benefits arising from a joint trial and some risk of prejudice to the accused arising from a joint trial, it is in the interests of justice to sever the counts as requested by the defendant.
Madam Justice Patricia C. Hennessy
Released: November 26, 2012