ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 361/12
DATE: 20130410

BETWEEN:

HER MAJESTY THE QUEEN

– and –

I.B.

Applicant

Kevin Ludgate, for the Crown
Michael J. Venturi, for the accused

HEARD: March 13, 2013

DECISION ON APPLICATION

Cornell J.:

Introduction

[1] I.B. is charged with historic sexual offences against his nieces, S.L. and V.H.. S.L. and V.H. are sisters. The applicant seeks to sever the charges contained within a three-count indictment so that the trials of S.L. and V.H. would proceed separately. It is the position of the applicant that the potential for prejudice and the lack of a factual nexus are such that the interests of justice dictate that the counts in the indictment should be severed.

Factual Background

[2] The applicant is an uncle by marriage of both complainants.

[3] S.L. alleges that when she was twelve or thirteen years of age, she was sexually assaulted by her uncle on two separate occasions.

[4] The first incident occurred at S.L.’s family home during a time when I.B. was visiting. While lying in her bed one morning, she alleges that her uncle crawled into bed, spooned her and pulled her close to his body. She could feel his erect penis between her buttocks. After approximately two minutes of lying in this position, the incident ended when I.B. got up and left the room.

[5] S.L. told her mother about the incident when she was approximately thirteen or fourteen years old.

[6] The second incident is alleged to have occurred when S.L. was visiting her aunt and uncle in Timmins. She believes that she was around thirteen years old at the time of the visit. She went to bed on a pull-out couch with the covers over her. It is alleged that I.B. stood over her, reached down, and rubbed her chest and fondled her genital area on top of the covers. This incident lasted approximately five minutes.

[7] V.H. testified that when she was twelve, going on thirteen, she was visiting her aunt and uncle at their home in Sudbury. She was in her pyjamas on the living room couch where she slept. At some point in the late evening, I.B. is alleged to have sat down beside her on the couch and hugged her. When he took his arms away, he started fondling her breasts and continued to do this for ten to fifteen seconds. The incident ended when he was called by his wife and he left.

The Law

[8] Although the Crown may include any number of counts for any number of offences in the same indictment, s. 591(3) of the Criminal Code gives an accused person the right to have such counts severed where the court is satisfied that the interests of justice so require. The onus is on the accused to establish on a balance of probabilities that the ends or interests of justice require that the counts be severed. See R. v. McNamara (No. 1), 1981 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.).

[9] The factors to be taken into consideration on an application of this nature are set out in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146 at para. 18. Although not intended to be exhaustive, the list includes:

1. general prejudice to the accused;
2. the legal and factual nexus between the counts;
3. the complexity of the evidence;
4. whether the accused 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 trial;
8. the length of the trial;
9. potential prejudice to the accused with respect to the right to be tried within a reasonable time; and
10. the existence of antagonistic defences between co-accused.

Analysis

General Prejudice to the Accused

[10] The court must be concerned with the risk that the accused’s right to a fair trial on the merits could be impacted by moral and/or reasoning prejudice as defined in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at paras. 99 and 139. These concerns were summarized in R. v. J.M., 2011 ONSC 3924 at para. 8:

There is a risk of prejudice to an accused when evidence properly admissible on one count may affect the verdict on another count. Such prejudice may amount to what has been referred to as “reasoning prejudice”, that is, evidence properly admissible on one count might raise sentiments of revulsion and condemnation that deflect the trier from a rational dispassionate analysis of the case. Such prejudice might also amount to what has been referred to as “moral prejudice” or propensity reasoning, that is, evidence properly admissible on one count may lead the trier to conclude that the accused has discreditable tendencies.

[11] It is the position of the Crown that the risk of prejudice is not a factor in this case as the accused has elected to be tried by a judge sitting without a jury. Unlike juries, judges have training and experience to appropriately apply the applicable rules of evidence.

[12] Defence counsel relies upon the decision of the Alberta Court of Appeal in R. v. Villeda, 2011 ABCA 85, 269 C.C.C. (3d) 394, cited with approval in R. v. J.M., where the court points out in para. 18:

Human nature and its attendant weaknesses and vulnerabilities may, on occasion, intrude upon the most rigorous and conscientious fact-finding. The spectre of moral or reasoning prejudice is always a concern regardless of who is sitting in judgment of the guilt or innocence of an accused.

[13] Concerns about the risk of prejudice to an accused arising from a joint trial also formed the basis for the decision in R. v. J.C.L., 2012 ONSC 6603 at para. 44.

[14] In considering these decisions, I am mindful of the fact that the court in Villeda made those comments within the context of a similar fact evidence application and not a severance application. R. v. J.M. can be distinguished on the facts, as Gordon J. based his concern about risk of prejudice to the accused on the fact that there was a substantial difference in the number and nature of the incidents. The court granted the severance application in R. v. J.C.L., given the risk of prejudice arising from the possibility of tainted reasoning, but in so doing, acknowledged the risk to be minimal.

[15] On the issue of prejudice to the accused, I prefer the approach taken in R. v. Chaulk, 2012 ONSC 3169, R. v. Minister, 2012 ONSC 1040, and R. v. L.S., 2012 ONSC 6205. In each case, an application for severance was brought by the accused. Each of those cases was to be tried by a judge with a jury. Despite concerns which were raised about possible prejudice to the accused, in each case it was determined that such concerns could be addressed by proper instructions to the jury. If that be so, it suggests that the risk of prejudice to an accused is substantially diminished, if it exists at all, in a judge alone trial.

[16] Given the factual background and the nature of the allegations in this case, I am of the opinion that there is no real danger that reasoning prejudice or moral prejudice will be factors in this trial.

The Legal and Factual Nexus between the Counts

[17] The Crown points out that there are many factual similarities shared by the three counts in the indictment:

• the complainants are sisters;
• the accused is their uncle;
• the assaults took place when the complainants were young teenagers;
• the assaults took place within the context of a visit;
• the assaults took place in a family home;
• the assaults took place while other family members were home;
• the assaults took place in a supposed private sleeping location;
• both complainants were in nightgowns/pyjamas at the time of the assault;
• the conduct was similar in that it occurred over clothing or bed covers and involved hugging;
• the incidents were isolated and not part of any “grooming”;
• the assaults were of relatively short duration; and
• the assaults were of similar magnitude in that no penetration occurred.

[18] Defence counsel argued that the requisite factual nexus does not exist in that there was a considerable range in age when the alleged assaults occurred, that one assault occurred in the morning and the other two occurred in the evening and that the type of touching was different. It was suggested that the necessary bond or causative link was absent and that the factual nexus was not necessary as part of the narrative.

[19] With respect, I disagree. When the evidence is looked at in its totality, I am satisfied that there is a factual nexus in the three counts in the indictment.

[20] The legal nexus is the same in that all three charges involve the same offence. There has not been any suggestion of any defence that might be considered in one count and not the others.

The Complexity of the Evidence

It was conceded that the evidence will not be complex or lengthy.

The Intention of the Accused to Testify

[21] It was conceded that this is not a factor that would favour severance as there was no suggestion that the accused wanted to testify with respect to one count but not the others.

The Possibility of Inconsistent Verdicts

[22] Although defence counsel argued otherwise, I am of the opinion that this is not a factor in this case.

The Desire to Avoid Multiplicity of Proceedings

[23] It was conceded that this factor would favour one trial in that it would make better use of judicial resources and involve less inconvenience to the parties involved in giving evidence. Be that as it may, I place little weight on this factor.

The Use of Similar Fact Evidence at Trial

[24] The Crown intends to bring a similar fact application in order to permit all of the evidence to be used with respect to each count.

[25] Defence counsel took the position that the Crown’s similar fact application was unlikely to succeed due to the possibility of collusion. Considerable time was spent in argument reviewing the evidence which was offered at the preliminary hearing. Consideration of this evidence suggests that the possibility of collusion is slight given the nature of the discussions which occurred between the complainants.

[26] Crown counsel took the position that the Crown had a particularly strong similar fact application given the situational-specific propensity suggested by the allegations made by both complainants. At this stage, I cannot say whether or not the crown will ultimately succeed in its similar fact application. Having said that, I am satisfied that for the purposes of this application, it is only necessary that the Crown’s similar fact application be viable, and I believe that it is. See R. v. Minister at para. 46.

Conclusion

[27] After weighing all of the factors which need to be taken into consideration, I am not satisfied that the applicant has satisfied the onus which rests upon him to establish on a balance

of probabilities that the interests of justice would require a severance. Accordingly, the application is dismissed.

Mr. Justice R. Dan Cornell

Released: April 10, 2013

COURT FILE NO.: 361/12
DATE: 20130410

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

I.B.

Applicant

REASONS FOR JUDGMENT

Cornell J.

Released: April 10, 2013