ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 646/13
DATE: 20140801
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
T.W.
Allison MacPherson and Martin Sabat,
for the Crown
Michael Strathman, for the accused
HEARD: June 2-3, 2014
Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainants and any information that could disclose such identities shall not be published in any document or broadcast or transmitted in any way.
K.L. Campbell J.:
Ruling on Severance Application
A. Overview
[1] The accused faces an indictment that charges him with five different offences. He has elected to be tried by a Judge alone, but has brought an application to sever the charges. Defence counsel argues that the interests of justice dictate that there ought to be three short trials, not one longer one. I agree. At the conclusion of argument, I granted the application and severed the indictment in the manner proposed by defence counsel. I indicated that I would subsequently provide reasons in support of this decision. These are those reasons.
B. The Five Charges in the Indictment
[2] The indictment against the accused alleges the following: (1) that he criminally harassed a female complainant, H.B., between June 1 and July 9, 2012; (2) that he failed, between June 1 and July 9, 2012, to comply with a probation order requiring him to keep the peace and be of good behavior; (3) that he possessed child pornography (photographs), between July 10 and 17, 2012; (4) that he sexually assaulted a female complainant, H.T., between September 1 and October 18, 2000; and (5) that he possessed child pornography (writings and photographs) between July 10 and 17, 2012. All five of these offences are alleged to have been committed in Toronto.
[3] Defence counsel contends that these five charges easily break-down according to the dates that the offences are alleged to have been committed, and ought to result in three separate trials. I agree. First in time, is the charge of sexual assault involving the complainant H.T., the former girlfriend and common law spouse of the accused. This offence was allegedly committed by the accused in the fall of 2000, more than a decade before any of the other charges. It is an allegation that is entirely independent of any of the other charges. Second in time are the charges of criminally harassing H.B. and breach of probation. These two charges must be considered together as the breach of probation charge amounts, essentially, to an allegation that the accused, by his criminal harassment of the complainant H.B., failed to abide by the condition of his probation order requiring him to keep the peace and be of good behavior. Third in the chronology are the two allegations that the accused possessed child pornography.
C. The General Nature of the Crown’s Allegations
[4] As I understand the general nature of the allegations from the submissions of counsel, H.T. and the accused were in a common law relationship for approximately four years. Initially, they lived together in Toronto. In 1999 they moved to Niagara Region together.
[5] In 2000, the accused was charged with the alleged criminal harassment of H.B. The accused had encountered this young female at a time when she was working in the business center of a retail store that he had occasion to attend. The accused had certain photocopying needs, and she was often the attendant in the business center who assisted the accused in this regard. The accused became obsessed with H.B. He visited the store with some regularity, and started calling the store to talk to her. H.B. had no interest in developing a relationship with the accused, and his unwanted attention – in combination with the contents of some of the materials he was having photocopied – caused her to become afraid. She called the police. During their investigation, the police seized certain binders in which the accused wrote of his obsession with H.B. and which reflected some other disturbing ideas. That charge of criminal harassment was eventually resolved by way of a “peace bond” that effectively required the accused to move back to Toronto to live with his sister. H.T. remained in Niagara Region, but occasionally visited the accused in Toronto. By that time, their relationship had reverted to one of boyfriend-girlfriend.
[6] H.T. had been a potential witness in the criminal harassment charge in relation to H.B., and the disturbing components of the case led the police to further interview H.T. in relation to the accused. H.T agreed to the interview, and spoke to the police for approximately three hours. The interview was recorded on video-tape. During the course of that interview, H.T. reported that, in the fall of 2000, when she visited the accused at his sister’s home in Toronto, there was a non-consensual act of anal intercourse between them. H.T. indicated that she had initially agreed to this request by the accused, even though this was not a usual part of their sexual relationship. However, when the accused penetrated H.T. she started to cry from the pain and told him to stop. The accused continued to have anal intercourse with H.T. regardless of her repeated protests and crying, having pinned her face-down on the floor. He did not stop until he had ejaculated. Afterwards, H.T. noticed that there was some minor bleeding from her anal region as a result of this sexual assault. This sexual assault effectively ended their relationship. The police did nothing further at the time to investigate this alleged sexual assault against H.T.
[7] In July of 2012, the accused was again charged with the alleged criminal harassment of H.B., the same female complainant who was the subject of the criminal harassment by the accused in 2000. The accused had somehow managed, 12 years later, to locate H.B. at her new workplace. The accused allegedly contacted H.B. through a series of voice-mail messages. These messages started in June of 2012 and continued in July of 2012. In this series of messages, the accused referred to her as a “princess,” recited romantic poetry to her, expressed pride in her professional life, professed his life-long love for her, and left her his phone number, indicating that she knew who was calling her. H.B. became afraid for her safety and called the police.
[8] When the police began to investigate that allegation of criminal harassment, they reviewed the video recording of the police interview of H.T. and discovered the earlier failure to investigate her sexual assault allegation. At that point, H.T. was located and re-interviewed. This interview was also recorded on video, and the complainant, again, recalled for the police the alleged non-consensual act of anal intercourse by the accused that she endured in the fall of 2000.
[9] As a result of an unrelated conviction and sentence, on October 12, 2010, the accused was sentenced to a maximum reformatory term of imprisonment and a two-year term of probation. One term of this probation order was that the accused was required to keep the peace and be of good behavior. The Crown alleges that, by locating and repeatedly contacting H.B. in the summer of 2012, the accused not only committed the offence of criminal harassment, but he also failed to comply with this condition of his probation order, which was in effect at that time.
[10] The accused was arrested for the alleged criminal harassment of H.B. on July 10, 2012, just outside his Toronto residence. Subsequently, the police secured search warrants for this residence and, when these warrants were executed, the police discovered and seized the alleged child pornography.
D. The Legal Principles Governing Severance Applications
[11] According to s. 591(1) of the Criminal Code, with the exception of indictments which allege the crime of murder, “any number of counts for any number of offences may be joined in the same indictment” provided they are appropriately “distinguished.” However, s. 591(3)(a) of the Criminal Code provides that the “court may, where it is satisfied that the interests of justice so require, order that the accused or defendant be tried separately on one or more of the counts” of the indictment.
[12] According to R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at paras. 14-18, when deciding whether to sever counts, courts must seek to appropriately balance the risk of prejudice to the accused and the public’s interest in a single trial. The court indicated that the factors that should be weighed when deciding whether or not to sever counts include: (1) the general prejudice to the accused; (2) the legal and factual nexus between the counts; (3) the complexity of the evidence; (4) whether the accused intends to testify on one count but not on another; (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 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.
[13] This same legal test regarding the severance of counts must be applied whether the accused has elected to be tried by judge or jury. However, in trials by judge alone the potential prejudice to the accused is greatly reduced. Judges are generally presumed to be able to exercise the mental discipline and legal focus necessary to appropriately consider only the admissible evidence relevant to any given count of an indictment, while ignoring any potentially prejudicial evidence that may have been admitted only in relation to some other count of the indictment. Accordingly, in judge alone trials, there is a substantially reduced risk of prejudice to an accused charged in a multi-count indictment. See: R. v. Cresswell, 2009 ONCA 95; R. v. MacCormack, 2009 ONCA 72; R. v. B. (T.), 2009 ONCA 177; R. v. M.(J.), 2010 ONCA 117; R. v. Lacelle, 2010 ONSC 7024.
[14] At the same time, however, the absence of a jury is not always a complete answer to the fear of prejudice that an accused may voice when facing a trial on multiple charges. The authorities accept that there is a substantially reduced or lessened risk of prejudice in judge alone trials – they do not conclude that this risk of prejudice is wholly eliminated in all judge alone trials. Accordingly, the potential effects of “moral prejudice” and “reasoning prejudice,” as those terms were defined in R. v. Handy, 2002 SCC 56, will sometimes remain an issue of concern in judge alone trials. As the Alberta Court of Appeal stated in R. v. Villeda, 2011 ABCA 85:
While it is true that judges, by virtue of their training and experience, are better able to instruct themselves regarding the dangers of similar fact evidence, the ability to self-instruct is not a panacea. 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.
[15] Courts in Ontario have endorsed this statement of the law: R. v. Y.C.B., 2014 ONSC 1037; R. v. J.M., 2011 ONSC 3924. See also R. v. B. (J.C.), 2011 SKQB 333.
E. Applying the Legal Principles in the Present Case
1. Introduction
[16] In my opinion, appropriately balancing the risk of prejudice to the accused on a single trial on all five charges, against the public’s interest in a resource-efficient single trial, requires that the counts be severed as proposed by the accused. Moreover, in my view, the sexual assault charge should be tried by another judge. While I will remain the trial judge for the two separate but successive trials in relation to the child pornography charges and the charges concerning the criminal harassment of H.B., the interests of justice will be best served by having the sexual assault charge tried by a judge who is not fully apprised of the evidence associated with those other allegations.
2. Severing the Sexual Assault Count From the Other Allegations
[17] The parties agree that the sexual assault charge is the most serious charge pending against the accused. That charge alleges that the accused committed an act of serious sexual violence against the complainant H.T. – an act of non-consensual anal intercourse. This allegation, like most such historical sexual assault allegations, stands to be determined largely upon the credibility and reliability of the complainant, as measured against the other evidence in the case, including potentially the testimony of the accused, and as weighed against the Crown’s heavy burden to prove the allegation beyond a reasonable doubt.
[18] The vast majority of the evidence that will be tendered by the Crown in relation to the child pornography and criminal harassment charges has no relevance whatsoever to the sexual assault allegation, and yet that evidence (as I understand it) is of such a nature that it has the potential of causing great prejudice to the accused. Without unnecessarily detailing that evidence in these reasons, it suggests that the accused has disturbing, long-standing, hobby-like interests in serial killers and pornography.
[19] In my opinion, the allegation that the accused engaged in an act of non-consensual anal intercourse with H.T. should be fairly and independently determined in separate trial proceedings that are unencumbered with the spectre of potential prejudice that would be cast by the content of much of this other irrelevant evidence.
[20] Accordingly, the trial of the sexual assault charge, which arose out of events that allegedly took place in the fall of 2000, should be severed from the other unconnected charges that arose from events that allegedly took place in the summer of 2012, and should be tried by a different judge. The Crown fairly agreed that this was the “safest course” to a fair trial for the accused on the sexual assault allegation.
[21] Individual consideration of the various factors that must be weighed in this analysis compels this result. More particularly:
• Prejudice to the Accused: If the accused were tried simultaneously on the sexual assault charge together with the other four criminal allegations, the trier of fact would learn of evidence that is irrelevant to the sexual assault charge, but which would cast the accused in a most unfavourable and prejudicial light. As defence counsel framed this point during his submissions, this irrelevant evidence concerning his unsettling hobbies might attach a certain “stigma” to the accused.
• No Nexus Between Allegations: There is no legal or factual nexus between the sexual assault allegation and the other four counts of the indictment. The sexual assault is alleged to have happened more than a decade before the other four charges, and against a different complainant.
• Evidence Not Complex: The evidence in relation to each of the allegations is not complicated, but neither is there any significant degree of overlap in the evidence relevant to the other four counts and the evidence relevant to the sexual assault charge. To the extent that there may be information displayed on some of the pages of the pornographic materials that may be relevant to the sexual assault allegation, that evidence can no doubt be edited and tendered in a way that reflects the true probative value of that evidence, while reducing or eliminating any potential prejudice to the accused.
• Tactical Decisions About Testifying Are Different: As I understand the situation from the defence perspective, while the accused may well wish to testify in relation to the allegation of sexual assault, it is highly unlikely that he would testify in relation to some of the other charges (e.g. the child pornography charges). Such strategic decisions, if ultimately carried out, would appear to be objectively reasonable.
• No Inconsistent Verdict Risk: There is no risk of “inconsistent verdicts” if the allegation of sexual assault is separately tried, as that charge is independent from, and not factually connected to, the other criminal allegations.
• Severance Would Not Consume More Resources: While separate trials for these allegations, including the sexual assault allegations, would create a “multiplicity of proceedings,” each of the individual trials, including the sexual assault trial, promise to be short and focused proceedings that, cumulatively, would not consume significant additional court resources. In other words, practically speaking, severing the counts of the indictment as proposed by the accused will not likely result in separate trials of greater collective length than one combined trial on all five counts of the indictment.
• No Similar Fact Evidence: There is no suggestion by the Crown that any of the evidence that might be tendered in relation to the other four counts of the indictment is admissible as “similar fact evidence” in relation to the sexual assault allegation.
• Section 11(b) of the Charter is Waived: While severing the sexual assault charge from the indictment will likely cause a significant delay in commencing the trial of the accused on that charge, there are no concerns in the present case regarding the constitutional rights of the accused under s. 11(b) of the Canadian Charter of Rights and Freedoms, as the accused has (with the advice of counsel) expressly, unequivocally, and irrevocably waived his rights in this regard.
3. The Other Four Charges
[22] The remaining four criminal allegations are all alleged to have been committed by the accused in the summer of 2012. The arrest of the accused in relation to the criminal harassment allegation indirectly led the police to discover the alleged child pornography in his basement apartment. Further, some of the evidence found in the accused’s residence, at the same time as the alleged child pornography, is relevant to the criminal harassment allegation. There is, accordingly, a factual connection between these offences in terms of the necessary narrative of the relevant events. Accordingly, the potential prejudice to the accused in a single trial of all four of these remaining charges is not an issue of great concern as any judge who might hear either set of charges would necessarily have to be exposed to a considerable body of the evidence that is potentially prejudicial to the accused. There is really no escaping this reality. Further, the evidence relating to each set of allegations is relatively simple and straight-forward, and could be heard together in one trial.
[23] The only significant consideration that has prompted me to sever the child pornography charges from the criminal harassment charges, and conduct separate, back-to-back trials in relation to these two sets of allegations, is that the accused is not likely to testify in relation to the child pornography charges, but is likely to testify in relation to the criminal harassment allegation. It strikes me that the accused ought to be permitted to make the important strategic decision to testify in response to each set of charges without being concerned that he will be open to cross-examination in relation to the other set of charges.
[24] Specific consideration of the various factors that must be weighed in this analysis, pursuant to the Supreme Court of Canada decision in R. v. Last, also compels this result. More particularly:
• Potential Prejudice to the Accused: The evidence to be tendered against the accused in relation to both sets of charges reveals potentially prejudicial information about the accused and his personal interests. Separate trials will undoubtedly assist in maintaining the necessary disciplined separation of that evidence so as to ensure that each trial focuses only upon the evidence truly relevant to those charges. At the same time, the nature of the evidence in each trial is not such as to likely cause any real risk of prejudice to the accused. For example, it is hard to imagine how the fact that the accused may have been in possession of child pornography would prejudice him in relation to the determination of whether he criminally harassed H.B., an adult. Similarly, it is difficult to appreciate how the alleged criminal harassment of H.B. and the accused’s interest in serial killers might impact upon the legal issue of whether the materials admittedly found in the possession of the accused constitute child pornography.
• Some Factual Nexus – No Legal Nexus: While there is a factual nexus or overlap in the narrative between the criminal harassment allegations and the child pornography charges, there is no legal connection between the charges. While evidence concerning both sets of charges was discovered by the police during the same searches of the residence of the accused, there is no challenge to the validity of the search warrants and no attack on the admissibility of any of the evidence tendered by the Crown.
• Evidence Not Complex: The evidence of the alleged commission of the four remaining offences is not especially complicated. Indeed, the evidence seems to be rather straightforward and simple. The charges could easily be tried together in view of the nature of the evidence.
• Strategic Decisions to Testify or Remain Silent: I understand from defence counsel that the accused is not likely to testify in relation to the child pornography charges, but is likely to testify in relation to the criminal harassment allegations. These would be reasonable and understandable strategic decisions for the accused, in the event that the trials unfolded in this manner. As I have indicated, this factor strongly militates in favour of severing the allegations, and conducting separate, sequential trials.
• No Potential for Inconsistent Verdicts: As the child pornography charges and the criminal harassment allegations have no legal nexus, and the evidence in connection with each set of charges is different, there is no real potential for inconsistent verdicts in the circumstances of this case.
• No Unnecessary Multiplicity of Proceedings: While it might have been slightly more efficient to have all four of the remaining allegations against the accused determined in one trial, severance of the charges would not result in any real concern over the unnecessary multiplicity of proceedings. Each of the two trials promises to be relatively short and focused and can be easily completed within the time period allotted for the scheduled trial of this matter.
• No Similar Fact Evidence: The Crown does not contend that any of the evidence in relation to one set of charges is admissible as similar fact evidence on the other set of charges.
• No Delay – But Section 11(b) of the Charter is Waived: Severance of these two remaining sets of charges will not cause any significant delay in the trial of the accused on these matters. These two trials will be conducted back-to-back, one after the other. In any event, there are no concerns regarding the rights of the accused under s. 11(b) of the Charter of Rights because, as I have indicated, the accused has (with the advice of counsel) expressly, unequivocally, and irrevocably waived his rights in that regard.
F. Conclusion
[25] In the result, as I earlier indicated, the application by the accused to sever the counts in the indictment is granted. The count alleging a sexual assault against H.T. will be severed and tried separately on another occasion by a different judge. I will remain the trial judge in relation to all four of the remaining counts. However, the criminal harassment and breach of probation charges will be severed and tried by me immediately after the conclusion of the trial on the two child pornography charges.
Kenneth L. Campbell J.
Released: August 1, 2014
COURT FILE NO.: 646/13
DATE: 20140801
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
T.W.
RULING ON SEVERANCE APPLICATION
K.L. Campbell J.
Released: August 1, 2014