ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. W.C., 2015 ONSC 3189
COURT FILE NO.: CRIMJ(P) 379/14
DATE: 20150519
B E T W E E N:
HER MAJESTY THE QUEEN
T. Powell, for the Respondent
Respondent
- and -
W.C.
S. Nichols, for the Applicant
Applicant
HEARD: May 14, 2015
RULING RE SEVERANCE
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 complainants and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast in any way.
HILL J.
INTRODUCTION
[1] W.C. stands indicted that he sexually assaulted and unlawfully confined N.F. and that he sexually assaulted A.M.
[2] The prosecution intends at the close of its case at trial to apply to have the transactions involving the two complainants admitted as similar fact evidence. The defence has applied prior to trial for a severance of counts.
[3] The Crown submitted that the evidence, on a complainant-to-complainant basis, demonstrates on a number of bases, an identifiably similar course of conduct on the applicant’s part within about a 1-hour period which would be relevant to proof of the alleged offences including the character of the applicant’s acts and a lack of consent by the complainants, and, negation of accident or mistake defences. It was submitted that the approach proposed by the prosecution relates not to general propensity but to the applicant’s specific propensity to:
(1) “engage in impulsive and opportunistic sexual misconduct;
(2) with considerably younger, female, and subordinate employees;
(3) while these employees are under the influence of alcohol; and
(4) when they are all attending the same work-related social function.”
[4] The applicant’s written material states that “consent will … be a live issue” at trial. It was submitted that the credibility of each complainant is at issue for “a variety of reasons, but most notably because each [c]omplainant admits to being at least partially intoxicated, and unable to remember events accurately” – accordingly, “[i]n these circumstances, one [c]omplainant’s potentially faulty version of events should in no way be used to support the credibility of the other”. It is argued that “the two alleged incidents are in no way similar enough to justify allowing admission of the evidence”. It was further submitted that:
(1) “The two alleged incidents involving [A.M.] and [N.F.] do not share a high degree of similarity;
(2) There is a significant danger that the trier of fact will use the incidents to conclude that the Respondent has a general propensity;
(3) The Probative value does not outweigh the Prejudicial affect in considering all of the surrounding circumstances in relation to the alleged events;
(4) The credibility basis upon which the Crown seeks admission of the evidence is improper.”
FACTUAL OVERVIEW
[5] Both complainants were employed at a restaurant/bar called E[…] – N.F. as a waitress/server and A.M. as a hostess. The applicant was the general manager to whom managers or shift supervisors reported.
[6] In June 2011, N.F. was 18 years of age and A.M. was aged 20. N.F. was working as part of a high school co-op program placement. On a day-to-day basis, the complainants mostly dealt with their own managers. Their relationship with the applicant was strictly a professional one.
[7] On June 26, 2011, a staff party for the employees of E[…] was held at a bar, On The Curve (the Curve) about a five-minute walk away from E[…].
[8] N.F. arrived at the Curve with a girlfriend at about 11:30 p.m. Although as an 18-year-old she could not legally consume or be served alcohol, N.F. drank three whiskey sours and one or two shots. She could not say whether she was served singles or doubles.
[9] In her preliminary inquiry evidence, N.F. self-described as “a bit tipsy” but not “highly intoxicated”. Subsequent to June 27, 2011, she related to the police that she had been “kind of drunk”.
[10] The complainant provided the following account of events at the preliminary inquiry.
[11] At about 2:00 a.m., on June 27, she went to the women’s washroom in the Curve. When she exited, the applicant was in the hallway outside. He took her by the shoulders and manoeuvered her backward through the door of the adjacent men’s washroom. He was holding her somewhat playfully. He leaned in to kiss her and backed her into one of the washroom stalls while grabbing her and trying to kiss her. She told the applicant to stop. He locked the stall door and backed her up against the toilet and partially against one of the side walls of the stall. She was blocked from being able to exit the stall. He used terms of endearment (such as “Oh, [N.], it’s fine, like you look good, like just come in, it’s okay baby”) and persisted in trying to kiss her face and neck as she held her hands against his chest in an effort to push him away. She made no effort to kiss him back. She was taken aback and, in what she believes was a raised voice, said words to the effect of, “Stop, stop, I don’t want this” and “W.C., no, stop. What are you doing?” The applicant tried to put his left hand up her skirt.
[12] At this point, to the complainant’s recall, D.C., one of E[…] night managers, came into the washroom. She believes that she called his name or said, “D.C. help me”. She saw Mr. D.C. look over the top of the stall door, after which he smacked the applicant in the side of the head and said, “W.C., it’s time to go”. When the applicant moved away from the door, the complainant managed to exit the stall. She described herself as “freaking out”. She sat on the bathroom counter with her head in her hands.
[13] D.C. testified at the preliminary inquiry that he was in the applicant’s company most of the night at the party at the Curve. He considered the applicant to be “very clearly intoxicated” but able to speak coherently. Mr. D.C. had observed the applicant being loud and “very forward with the women at the party” – he was “being very physical with the staff” - kissing, hugging and grabbing them.
[14] At a point, after another staff member reported to him that the applicant was in the men’s washroom, he went to find the applicant. When the witness, who is 6’ 4” tall, looked over the door of one of the washroom stalls, he saw the applicant in “very close proximity” to N.F. with one of his hands at her waist as she stood with her back to the toilet. At this point, he reached over the door and touched the applicant who then unlocked the stall door and exited. N.F. lingered behind in the washroom momentarily. She appeared to be in shock.
[15] N.F. considered the applicant to be highly intoxicated – he “seemed quite drunk” and “noticeably drunk”. Questioned further about her own state of sobriety at the party, the complainant agreed that she told the police that it was “all kind of like a blur”. N.F. testified that her memory of what happened is “blurry”.
[16] To the complainant’s recall, after leaving the washroom, she sat in a booth for a few minutes speaking with D.C.. She briefly told him what had happened in the washroom as he tried to calm her down. She did not want to remain at the Curve or bump into the applicant again. D.C. testified at the preliminary inquiry that N.F. related to him what had occurred including that the applicant had penetrated her with his fingers. He encouraged N.F. to write out a statement and to go to the police.
[17] N.F. recalls that she left the Curve at about 2:45 a.m. walking with D.C. to the parking lot at E[…] after which D.C. drove her home.
[18] On June 28, N.F. reported the matter to the police. On the same date, Mr. D.C. called his regional/district manager for advice and on the same date gave a statement to the police.
[19] A.M. informed the preliminary inquiry court of the following facts. She arrived at the Curve for the staff party before 10:00 p.m. on June 26. She intended to follow up this attendance with an “after-party” at a friend’s place. At the Curve, she drank and socialized. To her recall, although she remains somewhat “foggy” about her alcohol intake, A.M. believes she consumed 3 to 5 rum and coke drinks, a shot of vodka and a liqueur. She reached an intoxication level which to a degree affected her memory as well as her ability to perceive what was going on, her judgment, and her ability to make decisions.
[20] In the early morning hours of June 27, A.M. encountered the applicant outside the Curve. He invited her for drinks and suggested that she could bring her friends. At a point, the applicant picked her up and carried her across the street over his shoulder. They then walked toward E[…] with her friend, Brittany, and others trailing behind.
[21] According to the complainant, when she told a co-worker, Parm, that she was an 8 out of 10 on an intoxication scale but okay to drive, the applicant stated, “Well we’ll have to get you more drunk”.
[22] A.M. thought that the group was going to E[…] for drinks where the party would continue. She saw no “harm” in this. The applicant went to his parked vehicle and obtained the keys to unlock E[…]. At the preliminary inquiry, the complainant described what next occurred:
… we were by the door, we didn’t get to the bar yet, and we kissed. And at that point I said, “Brittany is coming I think we should go.” And W.C. insisted to have a drink first. And I said, “Okay.” I went, we had a drink, and that’s when the incident with the rum happened when he grabbed the bottle and he came around and did that. Once that bottle was finished, he went to grab another one. By the second, when the second bottle came, I tried to take control of it. So I took the bottle myself and I pretended I was drinking it, put it down, and that’s when he started kissing me some more. At that point, I remember saying that I had to go. And he kept saying, “Oh, it is okay,” like they’re going to be here. Like they’re coming, they’re on their way, I can hear them knocking on the door.
[23] The complainant testified that she did not “imply on the kiss” – “it happened… I could have stopped it, but I didn’t.” It was uncomfortable. Then the applicant poured rum into her mouth while pulling her hair. About a shot went into her mouth with the rest of the poured liquor flowing all over her clothes, a tank top and tight-fitting jeans. In A.M.’s words, “I had no control over it”.
[24] At some point, when the applicant asked her if she liked it, she said “no”. Asked why not, she said, “Because I don’t and I have to go”. A.M. testified that, “It’s not like I was just letting it happen”. She kept saying that Brittany was waiting.
[25] The complainant was able to dial 911 on her cellphone to send out a signal and then immediately exited the 911 call and texted Brittany not to leave. She was in shock. She then heard her friend knocking at the unlocked door. She said, “W.C., do you hear that? We have to go”. She “couldn’t” leave as the applicant was standing blocking her way. Finally the applicant took the second bottle and said “Yeah, yeah, let’s go”. Then, as they walked toward the door, the applicant picked her up, sat her on the bar and tried to remove her pants as she tried to pull them back up while saying that she had to go.
[26] Parm and Brittany then entered the restaurant and A.M. went outside with them. The applicant also exited. At this point, he inquired where they were going to next and where the party was. The complainant wanted to go home. She was in shock and scared. Parm tried to calm her down. She went home but was unable to sleep. She reported to Brittany what had happened.
[27] Because of her alcohol consumption, the sequence of all events which transpired in E[…] is not entirely clear. A few days later, after hearing that the applicant had been fired, A.M. reported the matter to the police.
POSITIONS OF THE PARTIES
[28] Beyond the summary of the parties’ positions taken from their written material, as reviewed above at paras. 3-4, further refinements can be taken from the oral argument of counsel.
[29] On behalf of the applicant, Ms. Nichols placed particular emphasis on certain of the factors enunciated in R. v. Last, 2009 SCC 45, as impacting in favour of the court’s discretion to order severance – the absence of any legal or factual nexus between the counts including the inadmissibility of the alleged transactions as similar fact evidence, and, the likelihood that the defendant would wish to testify respecting the N.F. counts and not the A.M. allegation. Counsel recognized, as did counsel in R. v. Waudby, 2011 ONCA 707, at para. 3, that if there was a reasonable possibility that the Crown’s similar fact application would succeed at trial, the severance application must fail.
[30] Counsel submitted that the prosecution has failed to articulate an acceptable specific rationale advancing or refuting a live issue for trial sufficient to overcome the risks of moral and reasoning prejudice associated with presumptively inadmissible similar fact evidence.
[31] Ms. Nichols submitted that while superficially the alleged transactions appear similar (same evening, a staff party, etc.) they are in fact “very different” including how the respective interactions commenced and where they took place. As well, while N.F. claims to have been backed into a washroom and confined, A.M. went voluntarily to E[…] to drink with the applicant. The alleged incidents are not sufficiently similar to found admissibility considering the total content and existing dissimilarities. As well, in considering probative value, there are real reliability issues respecting the complainants’ evidence given their alcohol consumption and admitted lack of recall of many details.
[32] Apart from the absence of a factual nexus, on the subject of legal nexus there are “likely quite different defences” also described as “conflicting defences” – the N.F. allegations did not occur as the complainant described and, with respect to A.M., consent existed. The applicant would likely testify respecting the N.F. counts but not the A.M. charge relying instead to defend that charge on A.M.’s evidence including her voluntary act of returning with him to E[…] to drink and party, participating in a kiss on arrival at E[…], and the complainant’s actions of not departing the bar though having “much opportunity” to do so.
[33] Mr. Powell submitted that whether or not the prosecution’s similar fact application has some reasonable possibility of succeeding at trial, judicial instructions to the jury prior to its deliberations would be quite sufficient to counter any prejudice or unfair use of the evidence. The evidence is not complex, the number of transactions limited, and no obvious differentiation exists in seriousness between the alleged assaults.
[34] Further, the interests of justice would not be advanced by committing resources to two jury trials, with some overlap of witnesses in such proceedings.
[35] Crown counsel submitted that although some differences exist in the circumstances of the alleged offences, a strong factual nexus has been established in terms of time and place and context. Counsel set out 20 submitted similarities some of which are further analyzed below. As to legal nexus, Mr. Powell submitted that cross-count admissibility is favoured on the basis of a distinct pattern of behaviour engaged in by the applicant toward female employee subordinates making it more likely that the alleged assaults occurred in the absence of mistake or consent or misinterpretation by a complainant.
[36] Further, while the asserted prospect of an accused wanting to testify respecting the allegations of only one complainant is a factor to be considered, on the objective analysis required by the Last decision, at paras. 25-30, it cannot reasonably be concluded, considering the entirety of A.M.’s evidence, that the applicant would not need to testify respecting that complainant’s allegation.
ANALYSIS
General Principles
[37] The applicant was committed to stand trial on the three charges now before the Superior Court of Justice. The prosecution is authorized to prefer an indictment on “any charge” on which the accused “was ordered to stand trial”: s. 574(1)(a) of the Code. As a general rule, in its discretion the Crown may include multiple counts in an indictment: ss. 581(1), 591(1)(2) of the Code. Section 591(3) permits an accused to apply for severance of counts:
(3) The court may, where it is satisfied that the interests of justice so require, order
(a) that the accused or defendant be tried separately on one or more of the counts…
[38] In R. v. Blacklaws (2012), 2012 BCCA 217, 285 C.C.C. (3d) 132 (B.C.C.A.), at paras. 42-44, Finch C.J.B.C., in dissent, stated:
…The appellant is correct in saying that the test for admitting similar fact evidence is more stringent, and requires a closer legal and factual nexus, than the test for determining whether multiple counts should be joined or severed. However, the trial judge was not required to actually apply the test for admitting similar fact evidence during his deliberations on the severance application: he only had to assess whether it could "possibly" be met in the future. This is a considerably lower threshold, and I do not consider that the trial judge made an error in finding that it was met in the circumstances of this case.
It has been suggested that it would be "pure speculation" for a trial judge to try to predict the result of a similar fact application at the outset of trial. With respect, a trial judge does not need to go so far as to predict the result of such an application at the time of the severance application: he or she need only assess whether it has some possibility of success, based on the submissions that the parties have already made. Such prospective determinations are contemplated in Last [2009 SCC 45] at paras. 33-34, and they are not unusual in cases of this nature. See for example R. v. Butorac … [2010 BCSC 876] … at para. 58.
It has also been suggested that the trial judge erred in failing to take into account the possibility that the similar fact application might not succeed. If this occurred, it is suggested, the issue of the similar fact application would have been a neutral factor, or might possibly have weighed in favour of severance. With respect, it is clear from the trial judge's reasons that he did, in fact, take account of the chance that the similar fact application might be denied. In his discussion of the issue, he stated that "there is some possibility that such an application might succeed" [emphasis added]. The trial judge was well aware that, in cases such as this, a similar fact application contemplated at the time of the severance application might later fail. That is what occurred in the present case. But this does not retroactively invalidate the judge's consideration of this issue with respect to severance. The question is whether it was reasonable, at the time of the severance application, for the judge to consider that a subsequent similar fact application might succeed. There is no requirement of certainty. As discussed above, there is no indication that the trial judge made such an error in this regard.
(emphasis of original)
[39] On further appeal, at para. 1 of 2013 SCC 8, the court stated, “We are all of the view that the appeal should be allowed, for the reasons of Chief Justice Finch”.
[40] In R. v. Mastronardi (2014), 2014 BCCA 302, 313 C.C.C. (3d) 295 (B.C.C.A.), at para. 35, the court observed:
The Chief Justice [in Blacklaws] emphasized that a trial judge need not definitively predict the outcome of a similar fact application at the time severance is sought; rather, he or she need only determine whether a similar fact application "has some possibility of success, based on the submissions that the parties have already made" (para. 43), citing Last at paras. 33-34. The fact that a similar fact application may ultimately fail, as occurred in Blacklaws and with respect to the extortion count in this case, does not retroactively invalidate the judge's finding with respect to severance: "The question is whether it was reasonable, at the time of the severance application, for the judge to consider that a subsequent similar fact application could succeed. There is no requirement of certainty." (At para. 44.) These comments are directly applicable to the case at bar. The trial judge's assessment that the similar fact application might be successful with respect to the extortion count was, in my view, reasonable at the time and therefore attracts deference.
See also R. v. Butorac, 2013 BCCA 421, at para. 16 (leave to appeal denied [2013] S.C.C.A. No. 486).
[41] The onus is upon the applicant to establish that the interests of justice require a severance order. There is a “different burden in a similar fact evidence application”, a specie of evidence which is presumptively inadmissible: Last, at para. 33. In the Last decision, at paras. 33-34, the court stated:
…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. As said in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 52:
However, where the similar acts are alleged as part of a multi-count indictment, the consideration of the admissibility of similar fact evidence will have to be taken into account in deciding whether the counts should be severed. Nevertheless, the trial judge should be careful not to confuse admissibility with severance. A motion to sever under s. 591(3)(a) of the Code must be brought by the accused, who bears the burden of establishing on a balance of probabilities that the interests of justice require an order for severance. Yet the burden of demonstrating that similar fact evidence should be admitted must be borne by the Crown. These respective burdens may involve the consideration of similar factors, but as Lord Scarman noted in R. v. Scarrott (1977), 65 Cr. App. R. 125 (C.A.), at p. 135, "[i]t does not follow that because a multi-count indictment has been allowed to proceed that therefore the evidence given will be evidence on all the counts contained in the indictment". Thus, to paraphrase the Manitoba Court of Appeal in R. v. Khan (1996), 1996 CanLII 7296 (MB CA), 49 C.R. (4th) 160, at p. 167, notwithstanding the trial judge's refusal to sever the counts in a multi-count indictment, it remains open to him or her, as the evidence progresses at trial, to determine as a matter of law that evidence on one count is not admissible as similar fact evidence on the other counts. The assessment of similar fact evidence and the determination of its probative value and admissibility places an onerous burden on the trial judge. It is a task that must be undertaken with great care.
In the case at bar, an issue facing the trial judge at the time of the severance hearing was the fact that the Crown indicated that it wanted to wait until the conclusion of its evidence before making a similar fact evidence application. There is no procedural rule requiring the Crown to bring the similar fact evidence application at the time of the severance application: see D. Watt, Watt's Manual of Criminal Evidence (2009), at s. 34.02. Given that the assessment of the similar fact evidence application can be a difficult task, in many cases such an assessment may be best done once all of the Crown's evidence has been tendered.
[42] In considering the question of severance, the court exercises a discretion, to be exercised judicially, upon a consideration of all relevant circumstances “prevailing at the time it was made” (Last, at para. 15). While society has an interest in seeing that justice is done in a reasonably efficient and cost-effective manner, such factors favouring a single trial must be carefully balanced with the truth-seeking function of the trial based on a record with no undue risk of prejudice to the fair trial interests of the accused. At para. 18 of the Last decision, the court articulated a non-exhaustive list of relevant factors for the severance determination:
(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 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
(10) and the existence of antagonistic defences as between co-accused persons.
[43] In considering the issue of an accused wishing to testify respecting one count but not others, the burden is on the accused to provide sufficient information to convey that, objectively, there is substance to such an expressed testimonial intention: Last, at paras. 22-30.
[44] In some cases with multiple counts and multiple complainants, where there is no trial ruling favouring complainant-to-complainant similar fact admissibility, careful jury instructions may be adequate to eliminate the dangers of cross-contamination influences across various transactions: R. v. J.R.M., 2015 ONCA 229, at paras. 6-19; R. v. Rarru, 1996 CanLII 195 (SCC), [1996] 2 S.C.R. 165, at para. 1 affing the dissent at [1995] B.C.J. No. 165 (C.A.); Last, at para. 46.
[45] Turning to similar act admissibility, and recognizing that “[c]oincidence, as an explanation, has its limitations”, similar fact evidence may be admitted in a criminal trial: R. v. Handy (2002) 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.), at para. 45. That said, such evidence is presumptively inadmissible and is only “exceptionally” admitted where the Crown discharges its burden of establishing the case for admission: Handy, at para. 60; R. v. B.(C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at p. 732. Similar fact evidence is therefore admitted by exception where its probative value exceeds its prejudicial effect and the test for admission is the same whether the evidence is extrinsic or arises from the proof of other counts in the indictment: R. v. Moo, 2009 ONCA 645, at para. 97.
[46] It is “a basic principle of the law that the probative value of a particular piece of evidence depends on the context in which it is proffered”: R. v. Araya, 2015 SCC 11, at para. 31. So too, the admissibility of similar fact evidence, and specifically the balance of probative value against prejudicial effect, depends on identification of the purpose or material issue for which the evidence is sought to be admitted – issue identification is an important control. As the proponent of admissibility, the Crown must establish “the specific factual issue on which the evidence is probative of the improbability of coincidence”: R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 72.
[47] Mere proof of general disposition or discreditable character at large amounts to moral prejudice only. “The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated”: Handy, at para. 74. For example, is the evidence proffered to prove the identity of the person who committed the offences, to prove the actus reus, to rebut or refute coincidence or innocent explanation or mistake, etc.? Where properly admissible, the evidence may “show a pattern of similar behaviour that confirm[s] each complainant’s testimony”: R. v. B.(T.) (2009), 2009 ONCA 177, 95 O.R. (3d) 21 (C.A.), at para. 22; R. v. Thomas (2004), 2004 CanLII 33987 (ON CA), 72 O.R. (3d) 401 (C.A.), at para. 43.
[48] The “principal driver of probative value…is the connectedness (or nexus) that is established between the similar fact evidence and the offences charged”: Handy, at para. 76. Can it be said that a sufficiently “high degree of similarity between the acts renders the likelihood of coincidence objectively improbable”? (R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 43; R. v. R.M., 2015 ONCA 9, at para. 4; R. v. T.H., 2014 ONCA 906, at para. 9). While “the search for similarities is a question of degree”: (Handy, at para. 122), a more stringent degree of similarity is generally required where it is sought to use the evidence to prove identity: R. v. W.L., 2015 ONCA 123, at para. 8. The cogency of the evidence, derived from the improbability of coincidence, increases as the fact situation moves further to the specific end of the spectrum – also described as an “observed pattern of propensity operating in a closely defined and circumscribed context”: Handy, at paras. 87, 90, 110. Where the acts do not have the high degree of similarity that would render the likelihood of coincidence objectively improbable, the evidence will be inadmissible: Last, at para. 34; Arp, at para. 43.
[49] To found admissibility, the prosecution cannot hope to rely upon an impermissible general disposition inference (R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 18; U.C., at para. 41), similarities of a “general character” (R. v. Chapman (2006), 204 C.C.C. (3d) 449 (Ont. C.A.), at para. 24), “generic” similarities commonly seen in the commission of the alleged crime(s) (R. v. Cresswell, ONCA 95, at para. 8; R. v. R.B. (2003), 2003 CanLII 13682 (ON CA), 68 O.R. (3d) 75 (C.A.), at paras. 49, 64, 69 (aff’d 2004 SCC 69, [2004] 3 S.C.R. 503)), or facts at the “vague end of the spectrum”: Handy, at para. 85. However, where the evidence gives rise to an inference of a specific disposition, for example, “a specific disposition to sexually abuse his companion’s two young daughters” (U.C., at para. 41) or “to show the appellant’s specific propensity to engage in sexual misconduct with boys in his care who came to him in a vulnerable condition” (R. v. B.(R.) (2005), 2005 CanLII 30693 (ON CA), 77 O.R. 171 (C.A.), at para. 11), the evidence may support a legitimate chain of reasoning and a “persuasive degree of connection” justifying a similar fact ruling in favour of the prosecution: R. v. L.T. (2005), 2005 CanLII 792 (ON CA), 196 O.A.C. 394 (C.A.), at para. 16.
[50] Evaluation of the degree of similarity of the acts may be assisted by consideration of a number of factors including:
(1) proximity in time of the similar acts
(2) extent to which the other acts are similar in detail to the charged conduct
(3) number of occurrences of the similar acts
(4) circumstances surrounding or relating to the similar acts
(5) any distinctive feature(s) unifying the incidents
(6) intervening events
(7) any other factor which would tend to support or rebut the underlying unity of the similar acts.
(Handy, at para. 82)
[51] Similarity assessment requires attention to the existence of material dissimilarities between the transactions: Handy, at para. 123. While it is improper to adopt a numerical approach to the calculation of similarities and dissimilarities (R. v. J.W., 2013 ONCA 89, at paras. 51, 55), where the similarities are particularly strong or numerous, attendant dissimilarities may not defeat the legitimacy of the inference sought to be drawn – see, for example, U.C. (two sisters sexually abused – fondling and touching of both but sexual intercourse with only one); Cresswell (single incident of alleged abuse with some complainants and repeated acts with others); B.(R.) (2005) (no anal intercourse with two of the complainants).
[52] Account must be taken of the prospective prejudicial effect on the trier(s) of fact should the similar fact evidence be admitted and available for circumstantial inference reasoning. The risk of wrongful conviction is inherent in propensity evidence. Regard must be had to the risk of moral prejudice including the drawing of an inference of guilt from general disposition or discreditable tendencies. As well, reasoning prejudice warrants consideration including distraction of the trier(s), for example, on account of the impact sentiments of revulsion, consumption of time, etc.: R. v. Grant, 2015 SCC 9, at paras. 31, 39. The risks of prejudice are generally attenuated in a judge-alone trial: B.(T.), at paras. 33, 36; R. v. J.G.B., 2010 BCCA 2, at para. 25; R. v. T.C. (2005), 2005 CanLII 371 (ON CA), 74 O.R. (3d) 100 (C.A.), at para. 63; B.(T.), at paras. 33, 36.
[53] Probative value is often a function of the reliability of the evidence in question – R. v. Mack, 2014 SCC 58, at para. 31. So, for example, “[i]t is illogical to suggest that unreliable evidence from one count can be used to bolster unreliable evidence on another count”: R. v. Bereznicki, 2015 ABCA 144, at para. 24.
[54] In the final analysis, the balance of probative value against prejudicial effect goes to the very fairness of the trial.
[55] With regard to similar fact evidence, the “existence of collusion rebuts the premise on which admissibility depends” (Handy, at para. 110) as the probity of such evidence arises from the improbability of two or more witnesses independently or coincidentally giving the same evidence: R. v. Magno, 2015 ONCA 111, at para. 40; U.C., at para. 40. Where there is some evidence of actual collusion, or at least an air of reality to it, the Crown must satisfy the trier of law as a condition precedent, on a balance of probabilities, that the evidence of similar acts is not tainted with collusion: Handy, at para. 112.
[56] Dictionary definitions of collusion generally raise notions of secret agreement, plotting or conniving, or conspiring together for a fraudulent or underhanded purpose. On occasion, the facts of a case may raise a concern about “innocent collusion or influencing” or the possibility of “innocent tainting”: R. v. Dorsey, 2012 ONCA 185, at para. 31; R. v. M.B., (2011), 2011 ONCA 76, 267 C.C.C. (3d) 72 (Ont. C.A.), at paras. 18-20; R. v. Baggio, 2011 ONCA 80, at paras. 1-5; R. v. J.F. (2003), 2003 CanLII 52166 (ON CA), 177 C.C.C. (3d) 1 (Ont. C.A.), at para. 77.
[57] To the extent that the jurisprudence dealing with collusion speaks of collusion “or some other form of tainting” (U.C., at para. 40; B.(T.), at para. 22), or of other non-collusive conduct (B.(R.) (2005), at para. 5 (no evidence complainants colluded with each other “or even discussed the appellant’s misconduct with each other”)), the court, in deliberating upon the admissibility issue, should be alive to instances of witness contamination, deliberate or innocent, of a sufficiently serious nature as to threaten the true existence of coincidence.
[58] Accordingly, there may exist the opportunity for collusion, or the potential for collusion, without the evidentiary record disclosing an air of reality to collusion having in fact transpired. Where the trial judge is satisfied that the reliability of the evidence is not jeopardized by collusion or similar tainting, the trier(s) of fact will then decide the ultimate worth of the evidence: Handy, at para. 112; U.C., at para. 19. At trial, of course, it is “not incumbent on the defence to prove collusion”: Handy, at para. 112.
Principles Applied To This Case
[59] The applicant has applied for severance seeking to have the court order separate trials of the allegations of N.F. and A.M. While I am not a case management judge appointed under Part XVIII.1 of the Code, or the assigned trial judge, the parties agreed to be bound by this court’s ruling as though made by the trial judge.
[60] Counsel were in agreement that a number of the factors relevant to the question of severance as articulated in the Last decision were not relevant in this case, for example, the complexity of the evidence, the potential for inconsistent verdicts, the risk of s. 11(b) Charter delay were two trials ordered, and the some-time issue of antagonistic defences among co-accused.
[61] Apart from the issue of the admissibility of the complainants’ evidence as similar fact evidence, a number of considerations favour a lack of interference with the Crown’s exercise of discretion to prosecute the 3-count indictment unsevered including:
(1) a single trial, not two jury trials, would be conducted with the expenditure of fewer court days and other resources and adjudication within a shorter period of time
(2) some witnesses’ evidence would not need to be duplicated – primarily persons such as D.C. who made observations of the applicant’s behaviour and level of sobriety between 12:00 a.m. and 3:00 a.m. on June 27, 2011
(3) the availability of jury instruction clearly limiting the extent to which the triers would be permitted to employ count-to-count reasoning.
[62] The applicant’s proposal for separate trials of the complainants’ allegations envisions independent attacks on each complainant’s credibility and reliability before separate panels of triers. Defending the false allegations will focus in part on a reasonable doubt existing as to the truth of each complainant’s account based on her misperception and/or misrecall of events in particular fuelled by excess alcohol consumption – the circumstances described by N.F. did not happen and A.M. in fact consented to sexual contact. No single jury, in evaluating the truth of a complainant’s version of events, should be allowed to consider the improbability of coincidence of a second woman independently describing being sexually assaulted by the applicant within a very brief period of time.
[63] The prosecution accepts that while the respective complainants’ account of what happened to them must of course be assessed having regard to the role of alcohol consumption in their conduct, perception and recall, the triers of fact should also have the improbability-of-coincidence issue before them in order that a fair and contextual evaluation is available respecting the veracity of each complainant’s evidence.
[64] In my view, the truth and accuracy as to whether or not the applicant engaged in two non-consensual sexual encounters as alleged would, as the circumstances are presently known, be materially advanced by the admission of the respective complainants’ evidence on a similar fact basis. These circumstances provide a factual and legal nexus between the counts and attain a threshold level of probative value, exceeding any anticipated prejudicial effects respecting proof of the actus reus of the assaults and to rebut defences of innocent explanation, mistake or consent.
[65] The asserted similarities between the alleged transactions, within the coercive context of targetting junior female employees making the likelihood of coincidence improbable, are readily identifiable including:
(1) the complainants were young (ages 18 and 20) subordinate employees of the applicant who, prior to June 26/27, 2011, had a professional not a social relationship with the applicant
(2) the venues of the alleged assaults were two pubs, five minutes’ walk apart – one being the place of employment of the three principals (E[…]) and the second, the location of an E[…] staff party (the Curve)
(3) the pre-assault context of the transactions was the staff party during which the complainants and the applicant socialized and drank alcohol to excess
(4) the alleged assaults occurred roughly between 2:00 and 3:00 a.m. on June 27, 2011
(5) in both incidents it is alleged that:
(a) the applicant selected a location where he and a complainant were alone when he commenced his sexual advances (N.F. in a closed washroom stall; A.M. in E[…] after closing)
(b) the selected location carried an element of risk of detection affording only limited privacy from others (entering the washroom, or, the unlocked restaurant/bar)
(c) the applicant initiated unwanted and undisclosed sexual contact by attempting to kiss (N.F.), or kissing (A.M.), each complainant
(d) to some degree, the applicant acted physically to control the situation (by cornering N.F. in a closed washroom stall; with A.M., pouring liquor down her throat while pulling her hair, temporarily blocking her path to the door, and lifting her off the floor and onto the bar)
(e) the applicant ignored each complainant’s expressed desire for him to stop (N.F. - “Stop”, “I don’t want this”, “What are you doing?”); A.M. - “no”, “I have to go”, statements of wanting to join Brittany)
(f) without groping or touching the complainants’ breasts, the applicant sought access to their vaginal area by putting his hand up under N.F.’s skirt and by attempting to remove A.M.’s pants
(g) the applicant ceased the assault in each instance when he was no longer alone with a complainant (N.F. – D.C. entering the washroom; A.M. – Parm and Brittany opening the restaurant door).
[66] On the current record, with no evidence of collusion between the complainants, any dissimilarities such as they exist, do not materially detract from the cogency of the collective of significant similarities demonstrating factual nexus and a pattern of exploitive propensity operating in a closely defined and circumstantial context. Any indicia of unreliability of the complainants does not rise to the threshold of a reason for withholding cross-admissibility. Accordingly, the Crown’s similar fact application has some possibility of succeeding at trial.
[67] While the subjectively expressed testimonial intention of the applicant not to testify in defence of A.M.’s allegation of sexual assault is a factor worthy of consideration, on the facts here, this assertion is not objectively justifiable in light of the defence position that contact between A.M. and the applicant was consensual. The complainant, despite her level of sobriety on June 27, 2011, describes an unwanted kissing episode, forced liquor consumption, pulled hair, partially obstructed departure from the applicant’s company, and the attempted removal of her pants. A.M. described herself as in shock following the assault – she immediately went home abandoning her plans to attend an after-party.
[68] Upon careful consideration and balancing of relevant factors, the interests of justice do not favour severance.
CONCLUSION
[69] The application for severance is dismissed.
HILL J.
Released: May 19, 2015
CITATION: R. v. W.C., 2015 ONSC 3189
COURT FILE NO.: CRIMJ(P) 379/14
DATE: 20150519
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
W.C.
Applicant
RULING RE SEVERANCE
HILL J.
Released: May 19, 2015