CITATION: R. v. Darnley, 2015 ONSC 3815

BARRIE COURT FILE NO.: CR-14-185 DATE: 20150611

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

KARA DARNLEY Applicant

R. Flumerfelt, for the Respondent

A. L. McLeod, for the Applicant (Moving Party)

HEARD: June 8, 2015

REASONS FOR DECISION

DiTOMASO J.

THE APPLICATION

[1] The Applicant Kara Darnley (Ms. Darnley) is an O.P.P. Constable. She faces charges on a four count indictment. Counts #1 and #2 are breach of trust and obstruct justice charges relating to a domestic violence trial in which Ms. Darnley was a witness. Counts #3 and #4 are breach of trust charges relating to two integrity scenarios.

[2] Ms. Darnley brings this severance application.

OVERVIEW

[3] With respect to counts #1 and #2, it is alleged that Ms. Darnley was a civilian witness in a domestic violence trial. The couple involved lived upstairs from the home in which Ms. Darnley and her boyfriend Jody Vanier resided in Wasaga Beach. Their male neighbour Mr. Jeffrey was charged with a number of Criminal Code and CDSA offences. Ms. Darnley and others present were identified as witnesses.

[4] As the trial date approached, Ms. Darnley asked the Prosecutor to consider not calling her as a witness (given her status as a Police Constable). The Prosecutor ordered Ms. Darnley to attend and noted that she would be required to testify for the prosecution.

[5] On the day before the trial, it is alleged that Ms. Darnley was observed printing off an occurrence Information and witness statements related to the domestic investigation. This search did not appear anywhere in Ms. Darnley’s notes. She later told another O.P.P. Constable that she had shared the statements with witnesses Vanier and another civilian witness so they would know what the victim and the accused had said. The proceedings commenced and a plea of guilty was tendered by Mr. Jeffrey without testimony from any witnesses.

[6] With respect to count #3 (breach of trust) it is alleged that because of these incidents, an investigation was launched into Ms. Darnley’s conduct and an “integrity scenario” was developed. This integrity scenario involved an undercover officer.

[7] It is alleged that on June 10, 2012, Ms. Fisher directed Ms. Darnley to attend at detachment photocopier and retrieve documents, having previously and unbeknownst to Ms. Darnley, left a fake dossier near the copier. This dossier purported to have investigative information about Ms. Darnley’s boyfriend and his associates. It is alleged, Ms. Darnley discovered the file and showed the undercover officer the documents inside the folder which was marked “confidential”. It is alleged Ms. Darnley later took pictures of the folder and some of its contents. These pictures were later seized following a search warrant of Ms. Darnley’s phone.

[8] It is alleged that Ms. Darnley later returned to the photocopier and searched that area further as well as other areas in the Detachment for related investigative information while the undercover officer remained at the doorway to “keep watch”.

[9] Later that night, it is alleged that Ms. Darnley and the undercover officer attended Ms. Darnley’s residence on duty where Ms. Darley showed Mr. Vanier the pictures that she had taken of the contents of the file.

[10] In respect of count #4, (breach of trust) on June 18, 2012, Ms. Darnley and the undercover officer were again working the nightshift. On this occasion, it is alleged that Ms. Darnley entered the crime unit office and located a banker’s box on top of a filing cabinet. Ms. Darnley opened the box and took pictures of the contents.

[11] On June 19, 2012 Ms. Darnley and the undercover officer were working the nightshift. On that evening they both attended Ms. Darnley’s residence and met with Mr. Vanier where Ms. Darnley discussed what she had found when she had searched the fake box contents.

ISSUE

[12] The issue is whether counts #1 and #2 should be severed from counts #3 and #4.

POSITION OF THE PARTIES

Position of the Applicant Kara Darnley

[13] It is submitted that in the interests of justice there ought to be an order that Ms. Darnley be tried separately on the counts contained in the indictment. There should be two separate trials. Ms. Darnley relies upon s.591(3) of the Criminal Code and R. v. Last, 2009 SCC 45, [2009] S.C.J. No. 45 in support of the defence position that this is an appropriate case for severance. Various factors were identified in R. v. Last that ought to be balanced in arriving at a decision either in favour or against severance.

[14] It was submitted that the accused’s intention to testify or not should be given significant weight. However, it is but one factor to be balanced with all the others. Should the counts be severed, Ms. Darnley intends to testify in both trials. It is submitted that there is potential prejudice to Ms. Darnley should the jury find her credible with respect to one group of counts and not with respect to another.

[15] It is further submitted that in respect of the factual nexus, while the charges are similar, the theory of the defence is completely different. In respect of counts #1 and #2, the defence is based on Ms. Darnley’s compliance with her obligation as a police officer. Regarding counts #3 and #4 the defence is one of entrapment.

[16] It is submitted that there really is no factual nexus linking counts #1 and #2 with counts #3 and #4. The circumstances surrounding the charges are not sufficiently similar in character to have supported a similar fact evidence application.

[17] Regarding the public interest in efficiently trying all counts together, in the case at hand, the gains in judicial economy usually achieved from avoiding multiple proceedings were absent.

[18] As for a limiting instruction to a jury to limit the risk of inappropriate cross-pollination or propensity reasoning, it was submitted that the court should not resort to limiting instruction unless there was a valid reason to do so. Ms. Darnley’s intention to testify is but one factor in the balancing exercise.

[19] Lastly, all the factors must be considered and weighed cumulatively. It is submitted that severance ought to be granted.

Position of the Respondent

[20] Crown counsel also identifies s.591(3) of the Criminal Code and the controlling principles to be found in R. v. Last (supra). It is submitted that Ms. Darnley’s request for two separate trials is unsupported.

[21] Counsel for the Crown considers the various Last factors. Crown counsel submits that Ms. Darnley has not met her onus to demonstrate that the interests of justice cannot be served without severance.

[22] It is submitted that the factors that support severance are faint and easily disposed of by way of jury instruction. There is no prejudice to the Applicant flowing from the current indictment such as in Last where the counts related to two witnesses unknown to each other. Ms. Darnley does not wish to testify regarding only one of the sets of counts. The evidence is not complex. There were no antagonistic defences and severance will not alleviate any delay in the proceedings.

[23] On the other hand, it is submitted there is ample justification for keeping the counts together. Severance would require the setting of two separate trials, an imposition on two separate juries and the calling of repetitive evidence. The proposed entrapment defence creates a strong legal nexus between the counts that would be severed.

[24] Further, it is submitted by Crown counsel that there is a strong factual nexus between the counts. They all flow from Ms. Darnley’s work as a police officer. They all relate to a boyfriend Mr. Vanier. They all centre around the Wasaga Beach O.P.P. Detachment. They all share the same motive: to shield herself and those around her from exposure to the justice system. They all share the same modus operandi: the use of privileged access to obtain and disseminate confidential police information.

[25] Lastly, it is submitted that if the counts were severed, the jury would puzzle over why a sudden sting operation was initiated against Ms. Darnley. The police bias might be presumed and the credibility of the investigators would be adversely and unfairly affected. Lastly, it is submitted that the jury’s fact-finding mission will suffer from a distortion that, by its nature, cannot be cured by judicial instruction.

[26] Crown counsel submits that the application should be dismissed.

ANALYSIS

[27] Section 591(3)(a) of the Criminal Code provides:

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 counts.

[28] This provision provides the court with jurisdiction to sever counts in an indictment. The applicable principles are found in R. v. Last 2009 SCC 45, [2009] S.C.J. No. 45. Counsel did not dispute that s. 591(3)(a) and the principles in Last apply. Each in turn addressed the various factors identified in Last which are not exhaustive and rather, assist the courts in determining that the interests of justice will require severance in any particular case.

[29] Counsel for Ms. Darnley identified certain principles from Last. It was submitted that the obvious risk when counts were tried together is that the evidence admissible on one count influenced the verdict on an unrelated count. Further, the weighing exercise of the Last factors which are not exhaustive ensures that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial. The various factors identified in Last were identified. See R. v. Last, supra, para. 16, 17 and 18.

[30] For the following reasons, this application is dismissed. I am not satisfied that the interests of justice requires severance in this case.

[31] In arriving at my decision, I have considered the submissions from defence counsel and Crown counsel regarding the various Last factors.

Society’s right to have justice done in a reasonably efficient and cost-effective manner

[32] I am not persuaded that the counts in this indictment ought to be severed thus requiring two trials. In the case at bar, the main witness the undercover officer will give evidence about ongoing attempts by Ms. Darnley to use her position to protect herself and others from exposure to the criminal justice system. This evidence would span all four counts.

General prejudice to the accused

[33] In the case at bar, the facts are distinguishable from the facts in Last where prejudice to the accused of a joint trial was significant. The jury in the case at hand would not be confronted with the concern as to why two complainants who did not know each other would independently accuse Mr. Last of sexual assault. This dynamic does not exist in the case at bar. Rather, the evidence against Mr. Darnley is all from the same investigative body and, largely, from the same witness.

The legal nexus between the counts

[34] Counsel for Ms. Darnley submits that the defence for the “integrity play” charges is entrapment. The trial judge will have to make factual findings regarding whether the integrity play constituted “random virtue testing”. I agree with Crown counsel that all of the evidence regarding random virtue testing is found within the counts that the Applicant wants to sever from the “entrapment” case.

The factual nexus between the counts

[35] I find there is a strong factual nexus between the counts which Ms. Darnley proposes to sever in this case.

• Severing the counts will remove all context from the “integrity play” (counts #3 and #4). The integrity play flowed directly from Ms. Darnley’s alleged attempt to taint the evidence of witnesses in a domestic trial. If the jury accepts Ms. Darnley’s proposed evidence that she was just “helping the witnesses prepare”, it will prevent the jury from drawing adverse inferences about the good faith of the investigation. Without the domestic trial counts, the jury will be left to wonder why the police were targeting Ms. Darnley in a sting. This would create a distorted view of the facts. I agree as the court stated in Last, the trier of fact would “need to know about one in order to understand the other”. See R. v. Last, supra, at para. 14.

• In the case at bar, unlike the facts in Last, the impugned conduct centered around the Wasaga Beach O.P.P. Detachment and allegedly, all of it was related to the unlawful and surreptitious acquisition of confidential material. Moreover, it is alleged that it was all tied together by a common theme: Ms. Darnley using her position as a police officer to head off legal consequences flowing from her personal life.

The complexity of the evidence

[36] The case at bar is not overly complex. Rather, I find the case at bar will be brief for a jury trial and the issues are, for the most part, straight forward. This factor militates against the severance.

Whether the accused intends to testify on one count but not another

[37] It is submitted that should the counts be severed Ms. Darnley intends on testifying in both trials. The court in Last made clear that the main concern regarding intention to testify was to protect the accused’s “right to decide whether or not to testify with respect to each of the counts”. Regarding Ms. Darnley’s intention to testify or not is but one factor to be balanced with all the others. I find that this factor also militates against severance.

The possibility of inconsistent verdicts

[38] I agree that this is not an issue in this case. An acquittal on one of the counts would not conflict with a guilty verdict on the other, particularly given Ms. Darnley’s reliance on the defence of entrapment on the “integrity play” counts.

The desire to avoid a multiplicity of proceedings

[39] Severance in this case would require, not merely two trials, but two jury trials with all of the attendant costs. Two trials are not required in the interests of justice in this case.

The use of similar fact evidence at trial.

[40] It is submitted that on behalf of the Crown that this factor is not currently an issue in this trial.

The length of the trial having regard to the evidence to be called

[41] Evidence related to the domestic trial counts (the dissemination of witness statements) would have to be repeated in both trials in light of its relevance to the entrapment defence asserted in the integrity play counts.

Potential prejudice to the accused with respect to the right to be tried within a reasonable time

[42] This is not a factor in this trial.

The existence of antagonistic defences as between co-accused persons

[43] Ms. Darnley has no co-accused in this matter. This issue is not a factor in this trial.

[44] I have considered all of the Last factors addressed by counsel on this application. Those factors were weighed cumulatively. There was no one single factor that predominated. I also considered the use of limiting instructions regularly used in jury cases to limit the risk of inappropriate propensity reasoning.

[45] In the end, weighing the principles governing applications for severance and in particular, those principles as they relate to the case at bar, I find that the Applicant Ms. Darnley has not met the onus upon her to demonstrate that the interests of justice cannot be served without severance. The factors that support severance can be addressed by way of jury instruction. I find there is no prejudice to Ms. Darnley flowing from the current indictment (distinguishable from the facts in Last). Ms. Darnley does not wish to testify regarding only one of the sets of counts. However, I find the evidence is not complex and there are no antagonistic defences. Severance will not alleviate any delay in the proceedings.

[46] There is ample justification for keeping the counts together. This case does not require the setting of two separate trials with two separate juries and the calling of repetitive evidence. The proposed entrapment defence does create a strong legal nexus between the counts which Ms. Darnley would have severed.

[47] I find that there is a strong factual nexus between the counts. They all flow from Ms. Darnley’s work as a police officer and they all relate to her boyfriend Mr. Vanier. They all centre around the Wasaga Beach O.P.P. Detachment. I agree with the submissions of the Crown that the factual nexus relates to the same motive: to shield Ms. Darnley and those around her from exposure to the justice system. The modus operandi is the same: the use of privileged access to obtain and disseminate confidential police information.

[48] Indeed, if the counts were severed, a jury would wonder why a sudden sting operation was initiated against Ms. Darnley. I agree that the credibility of the investigators would be adversely and unfairly affected. Lastly, I also conclude that the jury’s fact finding mission would suffer from a distortion which could not be cured by judicial instruction.

CONCLUSION

[49] For these reasons, the application is dismissed.

DiTOMASO J.

Released: June 11, 2015