ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRJ-102075
DATE: 2013/04/16
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
F.R.H.
Applicant
Monica Heine, for the Crown
Natasha J. Calvinho, for the Applicant
HEARD: March 22, 2013
Decision on an application for severance of counts
C.D.A. McKinnon J.
[1] This application was heard by me pursuant to the provisions of section 551.3(1)(g)(v) of the Criminal Code, as a designated case management judge appointed to determine whether severance of counts in an indictment should be ordered.
[2] The applicant is charged in a single indictment with seven counts alleging historical crimes of a sexual nature involving two complainants; a mother and her daughter. The mother is the sister of the applicant.
[3] The applicant has elected to be tried by a court composed of a superior court judge sitting with a jury.
[4] Six of the seven counts relate to allegations of sexual impropriety involving the niece of the applicant, C.M. The final count in the indictment alleges historical acts of sexual impropriety involving his sister, V.M.
[5] The applicant was born on […], 1964, and is now 48 years of age.
[6] The counts alleging sexual impropriety with his niece date between January 1, 1996 and December 31, 2002, in the East Region of the Province of Ontario. The count alleging sexual impropriety with his sister dates between January 1, 1981 and December 31, 1982, in the East Region of the Province of Ontario, when the applicant was between the age of 16 and 18. The applicant turned 18 years of age on […], 1982, some four months before the terminal date of the count involving his sister V.M.
V.M.’s Allegations
[7] V.M. testified that the sexual interaction between she and her brother commenced in the Province of Manitoba when she would have been eight years old and her brother 13 years old.
[8] The sexual interplay commenced when she, together with her brother and older sister, were sent to their rooms for doing something wrong. Her older sister and brother were slipping notes to one another. She asked her older sister what the notes involved and was informed that “F.R.H. wanted to show me his love.” Her older sister told her that “everything was okay and that F.R.H. would not hurt me”.
[9] In due course, she and her brother went out into the forest and touched each other’s private parts. She does not recall whether her older brother had an erection.
[10] Following the incident she disclosed to her older sister what had happened. Her older sister told her that F.R.H. loved her “and that’s how he was going to show me that he loved me.”
[11] She testified that her father and mother were derelict parents. Her mother was always drunk, and her father eventually abused her. Her mother never brought groceries into the house. Her brother F.R.H. was “like my father”. He protected his siblings and fed them.
[12] Subsequently the family moved to Gananoque in the Province of Ontario. At some point her brother was asked to leave the home, and he went to live with an older woman. V.M. had a paper route and used to visit her brother at his new residence. On occasions when the woman of the house was not present V.M. stated that she and her brother would touch each other. She would touch his penis and he would touch her vagina. The tops of their clothing would always stay on. She did not recall whether F.R.H. ever ejaculated. She testified that in her mind “it was normal.” Also, she recollected that this sexual interaction would have occurred five or six times and ended by the end of the year 1982, after F.R.H. turned 18 years old.
[13] According to V.M., in about the year 2001, when her daughter C.M. would have been about 11 years old, her brother came to live with her. She testified that she sat down with him and had a discussion about the past. She needed to know she could trust F.R.H. with her daughter because by the year 2001 she had learned that what had happened between she and her brother was wrong. She stated that her brother told her that he now knew that what they had done was wrong and that he was sorry. He apologized to V.M. and both of them cried. She testified that when the sexual interaction occurred between them, her brother was “as impressionable as I was.”
[14] In 2008 V.M. was concerned about the behaviour of her daughter C.M. and kept pressing her to as what the problem was. According to V.M., C.M. disclosed to her that her uncle had sexually assaulted her, which ultimately led to the present prosecution.
C.M.’s Allegations
[15] C.M. testified that as a result of nightmares involving ‘a shadowy dark figure with red eyes sitting at the end of her bed who had her uncle F.R.H.’s voice’, she began to have “flashbacks” about sexual impropriety with her uncle. He was her favourite uncle. He would buy her new outfits, take her to the movies, and to dinner.
[16] She recalled that when she would have been about six or seven years old, her uncle came to her bedroom after she had gone to bed and he rubbed her back. She remembered feeling uncomfortable.
[17] She recalled another occasion when she was in an automobile with her uncle, having “a slumber party”, with her little brother in the back seat. Her uncle asked her if she knew what the word “horny” meant. She said she did not. He told her that “it felt like you had to go to the bathroom but didn’t.” She fell asleep and awoke to her uncle rubbing his penis under her vagina. She does not know if he ejaculated. She “froze”. Her little brother was asleep in the back of the vehicle.
[18] On a third occasion, something happened when she was visiting her uncle in Cornwall, Ontario. Her uncle told her that she was not feeling well and gave her Nyquil, which made her sleepy. When she woke up her pyjama bottoms were around her ankles and her uncle was taking pictures of her vaginal area. She could hear the camera and saw flashes. He was opening her vagina so that he could take pictures of her. She said that she felt uncomfortable but forgot about the experience because she did not wish to remember it.
[19] She testified that there were other incidents involving her and her uncle, but she could not remember them clearly. One incident she did recall occurred when she visited her uncle in Brockville, Ontario. She was wearing snap-on jogging pants, and her uncle kept trying to unsnap them. The snaps ran down the sides of each leg. She was upset. Her uncle did not sexually touch her on that occasion.
[20] She was asked how often her uncle rubbed his penis on her and she stated she remembered “two for sure”; one in the car and another in her bedroom. The incident in the bedroom was similar to that in the car, during which he rubbed his penis against her vaginal area. At no time did he penetrate her. She does not recall if he ever ejaculated.
[21] When she began to have her nightmares and flashbacks she wrote a letter to a male friend, which she never mailed. Her mother found the letter and it disclosed the alleged sexual assaults by her uncle. After discussing the matter with her mother a complaint was made to the police in May 2008.
The Youth Criminal Justice Act
[22] Ms. Calvinho submits that count number seven involving the applicant’s sister must be severed because at the time of the alleged incidents the applicant would have been a youth and therefore subject to the provisions of the Youth Criminal Justice Act. Relying on the authority of R. v. S.J.L. 2009 SCC 14, [2009], 1 S.C.R. 426, which holds that a youth cannot be jointly tried with an adult, and that the criminal justice system for young persons must be separate from that of adults, Ms. Calvinho submits that severance of the count involving the sister V.M. must be ordered.
[23] Ms. Heine responds that because the Crown has applied to have the court impose an adult sentence upon the applicant in the event he is convicted of sexual impropriety involving his sister V.M., pursuant to s.64(1) of the Youth Criminal Justice Act, the applicant is entitled to a trial before a superior court judge and jury, which he has elected to have. As such, although the court is sitting as a youth court, no special provisions apply to the case of V.M. as distinguished from the case of C.M. Both may be tried at the same time, in the same court, before the same jury. In addition, because the offences with V.M. straddled and followed his 18th birthday, the applicant is an adult in any event, and may be tried as an adult for offences that began while he was a youth.
[24] I agree with Ms. Heine that S.J.L. does not apply to the facts at bar. To hold otherwise would turn the law on its head. The applicant cannot be severed from himself where the offenses are continuing and alleged to have occurred while he was both a youth and an adult.
[25] In passing, I note that count seven as drafted, alleging sexual impropriety with his sister, V.M., commence in the year 1981 when the applicant and his sister moved from the Province of Manitoba to the Province of Ontario. There is nothing prohibiting the Crown from alleging that the offense commenced years previous in the Province of Manitoba. Section 476(b) of the Criminal Code provides that where an offence is committed within one territorial division and completed within another, the offence shall be deemed to be committed in any of the territorial divisions. In R. v. D.A.L. (1996), 1996 8371 (BC CA), 107 C.C.C. (3d) 178 (B.C.C.A.) it was held that sexual assaults which occurred over a number of years in different provinces could be prosecuted in any of the provinces in which an assault was committed. I agree with that decision.
The Law of Severance
[26] Section 591 of the Criminal Code provides that where there is more than one count in an indictment, each count may be treated as a separate indictment, and the court may, where it is satisfied that the interests of justice so require, order that the accused be tried separately on one or more of the counts.
[27] In R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 18, the Supreme Court set out the factors which might assist in assessing the necessity of having separate trials, including the sufficiency of the factual and legal connection between the various counts; the risk of coming to contradictory verdicts; the possibility to having recourse to similar fact evidence; the complexity and the length of the trial having regard to the nature of the evidence to be called; the prejudice generally caused to the accused and specifically with respect to the right to be tried within a reasonable time; the prejudice caused to co-accused; antagonistic defences; the admissibility of evidence against a co-accused; the manifest desire of the accused to testify on certain counts and not others; and the desire to avoid a multiplicity of proceedings.
[28] The factors engaged in the case at bar include the sufficiency of the factual and legal connection between the various counts; the possibility of having recourse to similar fact evidence, prejudice to the accused; antagonistic defences; and the desire to avoid a multiplicity of proceedings.
[29] Ms. Heine submits that there is a compelling nexus between the counts involving sister V.M. and niece C.M. that arise by virtue of the conversation that V.M. alleges she had with her brother, prior to permitting him to live with her, notably that he acknowledged that what they had done together when she was very young was wrong, and that she was concerned that nothing untoward should happen with her daughter.
[30] Ms. Calvinho responds by saying that this evidence is highly probative of the allegations against V.M. but not probative involving the allegation involving C.M. With respect to the charge involving C.M., the conversation, if admitted, essentially involves the leading of similar fact evidence. I agree with this submission.
[31] The disposition of this severance application must consider the possibility of having recourse to similar fact evidence, as noted in Last.
[32] The burden lies upon the applicant who seeks severance and must demonstrate to the court on a balance of probabilities that severance would be in the interests of justice: R. v. McNamara (1981), 1981 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.) at para. 119.
[33] On the other hand, in order to have similar fact evidence admitted, the Crown bears the burden of convincing a judge on a balance of probabilities that the probative value of the evidence outweighs its potential for prejudice: R. v. Handy, [2002] 2 S.C.R. 61, at para. 55. In 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.
[34] Ms. Heine submits that in her view there is a good chance that her motion, now outstanding, for the admission of similar fact evidence is capable of succeeding. During oral argument, I expressed the view that such an application was likely doomed to failure. I made that comment for these reasons: Handy stands for the proposition that similar fact evidence is presumptively inadmissible because it carries two types of unfair prejudice: reasoning prejudice, for example, the jury being confused by a multiplicity of incidents and diverted from the task of deciding guilt on the charged incident; and moral prejudice, the danger that the jury may convict the accused not for what he did on the occasion charged but because the accused is a bad person. In the case at bar, assuming no severance order, the reasoning factor must be given little weight because there are outstanding charges in the indictment involving both complainants; but assuming no severance, the moral prejudice is substantial.
[35] The basis for the admission of similar fact evidence in this case would relate to the improbability of coincidence: Handy and R. v. Arp 1998 769 (SCC), [1998] 3 S.C.R. 339. Put another way, the court must ask what the chance is that, by coincidence, one complainant stumbled upon the same story of conduct by the accused as the similar fact witness. The more similar the story the less likely the accused is a victim of coincidence.
[36] In my view, the facts relating to V.M. are substantially different from the facts relating to C.M. Specifically, the acts involving V.M. allege mutual touching with the top clothing always being on, whereas with C.M. it involved vaginal touching with the penis, the spreading of vaginal area in order to take photographs, and the unsnapping of the sides of pants. The facts in each case are not similar.
[37] More compelling, however, is the fact that the alleged sexual impropriety with V.M. occurred when the applicant was very young, whereas the activity alleged to have occurred with C.M. was when he was an adult.
[38] Ms. Heine suggests that the similarity of facts resides in the proposition that the applicant had an interest in young girls. This argument collapses when one considers that the allegations involving V.M. commenced when the applicant was a 13 year-old boy.
[39] In my view, the potential for serious prejudice is manifest, while the probative value of the evidence is weak.
[40] Furthermore, one can anticipate different defenses being advanced with respect to each complainant: for example, an absence of mens rea with V.M., and a denial of the alleged activity involving C.M. These defenses would be antagonistic and might confuse a jury.
[41] As for the nexus, namely the conversation between V.M. and the applicant, wherein the applicant was allegedly warned to stay away from his niece, at severed trials that conversation would be highly probative to V.M.’s case but would have to be edited for the purpose of C.M.’s case. In C.M.’s case, the Crown would be permitted to lead evidence of the conversation to the effect that V.M. was concerned about her daughter and warned the applicant not to interfere with her sexually. No mention would be made of the past history between V.M. and the applicant.
[42] Finally, an order of severance would not burden the courts with undue additional time. Each trial would be relatively short.
[43] I am satisfied on a balance of probabilities that the interests of justice require a severance of count seven from the indictment, and that separate trials be held respecting the allegations of V.M. and C.M.
C.D.A. McKinnon J.
Released: April 16, 2013
R. v. F.R.H., 2013 ONSC 2238
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
F.R.H.
Applicant
Decision on an application for severance of counts
C.D.A. McKinnon J.
Released: 2013/04/16