SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CRIMJ(P) 2187/12
DATE: 20140408
RE: R. v. S.Y.D.
BEFORE: Baltman J.
COUNSEL:
Jill Prenger, for the Crown
Victor Giourgas, for S.Y.D.
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, shall not be published in any document or broadcast or transmitted in any way.
RULING ON SEVERANCE APPLICATION
[1] The Applicant has been charged with seven counts of assault against his children, and five counts of assault and sexual assault against his former wife, L.. He is to be tried by a jury. He has applied to sever the indictment and have two separate trials, one relating to his children and the second relating to L.. His alternative position is for a severance of the counts of sexual assault against L..
Factual Background
[2] The following is a brief overview of the allegations made by the various complainants:
- The Children
[3] The Crown alleges that the Applicant assaulted his four sons in the course of disciplining them while they all resided together, between 1997 and 2007. The four sons, their current ages, and the key allegations are as follows:
a) N., 19: three counts alleging assaults with a mop handle, wooden pole, wooden spoon and a belt;
b) S., 17: two counts alleging assaults with a metal mop handle, a belt and a wooden spoon;
c) A.1, 14: one count alleging assault with a rod;
d) A.2, 11: one count alleging assault with a wooden spoon.
- L. (wife and mother)
[4] L. alleges that she was assaulted by the Applicant in May 1996 when she confronted him about contracting genital lice. She asserts that in the course of this argument he grabbed her by the throat and told her to do as she was told.
[5] L. further alleges that in early 1998 the Applicant hit her on the back of the head during an argument, and that a third assault occurred in March 2006 when they argued over his involvement with another woman. Some and possibly all of the children saw and/or heard these fights.
[6] L. also alleges a series of sexual assaults that occurred throughout her marriage to the Applicant, between the years 1995 and 2006 (count 11). Finally, she alleges that during the months of August and September, 2006, when the marriage was over but she and the Applicant were still cohabiting, he sexually assaulted her on several occasions (count 12).
Legal Framework
[7] The Criminal Code imposes no restrictions on the number of counts that may be included in a single indictment. However, pursuant to s. 591(3), a trial judge may order severance of the counts on an indictment where she “is satisfied that the interests of justice so require.”
[8] The “interests of justice” require the judge to weigh the interests of the accused along with the interests of the public. On the one hand, there is the risk to the accused that the evidence on one count will adversely influence the verdict on another count; on the other hand, society has an interest in insuring that justice is done in a reasonably efficient and cost-effective manner, and that witnesses are not required to testify more often than necessary.
[9] In R. v. Last, 2009 SCC 45, [2009] S.C.J. No. 45, the Supreme Court identified the following factors to be considered by the court in exercising its discretion under s. 591(3) of the Code:
a. The general prejudice to the accused;
b. The legal and factual nexus between the counts;
c. The complexity of the evidence;
d. Whether the accused intends to testify on one count but not another;
e. The possibility of inconsistent verdicts;
f. The desire to avoid a multiplicity of proceedings;
g. The use of similar fact evidence at trial;
h. The length of the trial having regard to the evidence to be called;
i. The potential prejudice to the accused with respect to the right to be tried within a reasonable time; and
j. The existence of antagonistic defences as between co-accused persons.
[10] Some of these factors will have greater or lesser weight, depending on the circumstances of the case. As well, some may overlap; for example, the factual and legal nexus between the counts also bears on the potential use of similar fact evidence at trial. In the end, it is a highly discretionary test, affording trial judges significant flexibility to consider all relevant factors.
Analysis
[11] Of the various factors listed above, the following are particularly relevant in this case:
Legal and factual nexus between the counts
[12] The Crown has correctly noted that all the charges are linked, as they occur within a particular family roughly inside a ten year period; the history and personal dynamics of the family will be highly relevant to all the allegations. Moreover, they all involve the Applicant using physical force to control and abuse the victims. And several of the incidents were witnessed by other family members.
[13] That said, the two sets of counts are a very different nature; the assaults against the children involve excessive force discipline, whereas the assaults against L. arise from marital discord or sexual encounters.
The prejudice to the accused
[14] In my view a single trial has the potential for significant prejudice to the Applicant. Both sets of charges, while different in nature, involve serious misconduct that is particularly repugnant. The allegations regarding the children include numerous acts of brutality, with various implements, against four young boys. They include, for example, an occasion where the Applicant allegedly stuffed a sock in his 4 year old son’s mouth to stifle his screams before he beat him with a golf club. Several of the beatings resulted in distinct bruises and scratches.
[15] The allegations regarding L. are also very disturbing, including vicious beatings (one of which was triggered by her accusation that he infected her with lice following an adulterous affair), and numerous instances of rape.
[16] Either set of charges creates a serious risk for prohibited propensity reasoning by a jury: someone who viciously disciplines his children must also be the sort of person who would assault and rape his wife. The inverse is also true: a man who assaults and rapes his wife must also be the sort of person who brutalizes his children. The cumulative effect of all those allegations being heard within a single trial is to create a strong atmosphere of depravity within that home, which has the risk of colouring any decision the jury is asked to make.
The desire to avoid a multiplicity of proceedings
[17] I agree with the Crown that this is an important factor in this case. Not only will L. be a material witness on the allegations related to the children, but at least two or three of the children may be material witnesses on some of the allegations related to L.. As a result, if L.’s charges are severed, some of the children will have to testify again. The court system has already demanded a lot from them; the four boys gave statements to the police in the fall of 2010, and testified at the preliminary hearing in 2012. Given the years that have already elapsed since the underlying events occurred, and the highly stressful nature of this testimony, that is obviously to be avoided if possible.
The use of similar fact evidence at trial
[18] In her submissions Crown counsel indicated she will likely bring a similar fact application at the conclusion of the evidence. While some areas of anticipated evidence may support such an application (physical abuse within a family, a pattern of control and domination) other areas will not (assaults that are strictly sexual in nature, namely counts 11 and 12). Moreover, even where counts appear to be similar in nature, the implications of the admission of evidence on a count to count basis are potentially grave: see R. v. E.S., 2000 3240 (ON CA), [2000] O.J. No. 405 (C.A.) Overall, then, I assess this factor as largely neutral in my determination.
Whether the accused intends to testify on one count but not the other
[19] The Applicant has candidly acknowledged that he cannot rely on this factor, as he fully intends to testify on the counts involving the children and will “probably” testify on the counts involving L..
The possibility of inconsistent verdicts
[20] The Crown asserts that if severance is allowed, inconsistent verdicts may result because the credibility of repeating witnesses could be assessed differently. In my view this is unlikely, as the two sets of counts, while related, involve very different relationships and types of abuse. Moreover, as trial judges regularly instruct juries, they may accept some, none or all of a witnesses’ evidence. Thus even though there will be significant overlap in the witnesses between the two trials, it is conceivable, for example, that a jury will believe the allegations relating to the children but not those involving L., or vice versa.
[21] When all these factors are distilled, the major competing factors are, on the one hand, the undesirability of requiring the children to testify at two separate trials, and, on the other hand, the significant prejudice to the Applicant in combining all the counts in a single trial.
[22] There is however, a reasonable middle ground, one which was proposed “in the alternative” by defence counsel. That would involve severing only the charges that relate to the sexual assaults against L.. Although some of the children witnessed aspects of the alleged physical beatings of L., there is little if any evidence that any of the children witnessed any aspect of the sexual assaults, which form counts 11 and 12 of the indictment. Therefore, severing only the sexual assaults would likely avoid having the children testify at two separate trials.
[23] I recognize this is not a perfect solution. As the Crown submitted, there is a sexual component to at least one of the physical assaults against L., because it appears to have been triggered by an argument over the accused’s extra-marital affair. But the more important point is that while there is evidence the children witnessed the accused’s physical assaults against their mother, there is little if any evidence that they witnessed the sexual assaults (counts 11 and 12).
[24] As for the legitimate concern of prejudice to the accused that may arise from the combined allegations of assault against both his wife and children at the same trial, I believe that can be addressed by a strongly worded instruction from the court.
[25] I therefore conclude that a fair balancing of the competing factors in this case requires a severance of the counts relating to alleged sexual assault against L., namely counts 11 and 12. Those two counts shall be the subject of a separate trial.
Baltman J.
DATE: April 8, 2014
COURT FILE NO.: CRIMJ(P) 2187/12
DATE: 20140408
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. S.Y.D.
BEFORE: Baltman J.
COUNSEL: Jill Prenger, for the Crown
Victor Giourgas, for S.Y.D.
RULING ON SEVERANCE APPLICATION
Baltman J.
DATE: April 8, 2014