ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. D.H., 2015 ONSC 624
COURT FILE NO.: CR-14-880
DATE: 20150127
BETWEEN:
HER MAJESTY THE QUEEN
Ms M. Martin, for the Crown
- and -
D.H.
Mr. D. O’Connor, for the Defendant
Defendant
HEARD: January 26 and 27, 2015
REASONS FOR DECISION ON DEFENCE APPLICATION FOR SEVERANCE
Conlan J.
I. Introduction
[1] This trial began in Walkerton on January 26, 2015.
[2] There are a total of ten (10) charges against the accused.
The Charges Involving M.F.
[3] D.H. is charged with three counts of sexual assault against M.F. The formal charges read:
Count 1: That between the 1st day of July, 2013 and the 31st day of July, 2013 at the Town of Hanover in the said region, D.H. did commit a sexual assault on M.F. contrary to section 271 of the Criminal Code of Canada.
Count 2: That between the 1st day of August, 2013 and the 31st day of August, 2013 at the Town of Hanover in the said region, D.H. did commit a sexual assault on M.F. contrary to section 271 of the Criminal Code of Canada.
Count 3: That between the 1st day of August, 2013 and the 31st day of August, 2013 at the Town of Hanover in the said region, D.H. did commit a sexual assault on M.F. contrary to section 271 of the Criminal Code of Canada.
[4] D.H. is charged with uttering a threat. The formal charge reads:
Count 4: That between the 1st day of December, 2013 and the 31st day of December, 2013 at the Town of Hanover in the said region, D.H. did by telephone knowingly utter a threat to M.F. to cause bodily harm to J.M. contrary to section 264.1(1)(a) of the Criminal Code of Canada.
The Charges Involving E.C.
[5] D.H. is charged with three counts of assault against E.C. The formal charges read:
Count 5: That between the 1st day of November, 2013 and the 30th day of November, 2013 at the Town of Hanover in the said region, D.H. did commit an assault on E.C. contrary to section 266 of the Criminal Code of Canada.
Count 8: That between the 1st day of April, 2013 and the 30th day of April, 2013 at the Town of Hanover in the said region, D.H. did commit an assault on E.C. contrary to section 266 of the Criminal Code of Canada.
Count 9: That between the 1st day of May, 2013 and the 31st day of May, 2013 at the Town of Hanover in the said region, D.H. did commit an assault on E.C. contrary to section 266 of the Criminal Code of Canada.
[6] D.H. is charged with one count of sexual assault against E.C. The formal charge reads:
Count 6: That between the 1st day of November, 2013 and the 30th day of November, 2013 at the Town of Hanover in the said region, D.H. did commit a sexual assault on E.C. contrary to section 271 of the Criminal Code of Canada.
[7] D.H. is charged with unlawful confinement. The formal charge reads:
Count 10: That between the 1st day of November, 2013 and the 31st day of December, 2013 at the Town of Hanover in the said region, D.H. did without lawful authority confine E.C. contrary to section 279(2) of the Criminal Code of Canada.
The Charge Involving S.S.
[8] D.H. is charged with one count of assault against S.S. The formal charge reads:
Count 7: That between the 1st day of June, 2012 and the 31st day of August, 2012 at the Town of Hanover in the said region, D.H. did commit an assault on S.S. contrary to section 266 of Criminal Code of Canada.
II. The Defence Application for Severance
[9] At the commencement of the trial at Court on January 26, 2015, after the arraignment wherein the accused entered pleas of not guilty to all ten counts, leave was granted to the Defence, without objection by the Crown, to bring an oral Application for severance of some of the charges on the Indictment.
[10] D.H. applies to have counts 5, 6, 8, 9 and 10 (the charges involving E.C.) severed from the Indictment and tried separately.
[11] The Defence relies upon the decision of the Supreme Court of Canada in R. v. Last, 2009 SCC 45.
[12] It is submitted by counsel for D.H. that the three factors most relevant here are (i) prejudice to the accused if severance is not granted in that it may be practically impossible for the trier of fact, me, to avoid the dangers of credibility cross-pollination and prohibited propensity reasoning as described by the Supreme Court of Canada in Last, supra, (ii) the lack of any significant legal or factual nexus between the counts involving E.C. and the other charges on the Indictment, and (iii) the desire to avoid multiple proceedings.
[13] The Defence correctly observes that the key consideration is whether the interests of justice require severance. D.H.’s constitutional right to a fair trial is a necessary ingredient of a just and proper verdict on each charge that he is facing.
[14] There is no exhaustive list of what factors the Court should consider on a severance application, however, the Supreme Court of Canada has provided a list of potential considerations: prejudice to the accused, the legal and factual nexus between the counts, the complexity of the evidence, whether the accused intends to testify on one count but not another, the possibility of inconsistent verdicts, the desire to avoid multiple proceedings, the use of similar fact evidence at trial, the length of the trial, the potential prejudice to the accused regarding his right to be tried within a reasonable time, and the existence of antagonistic defences as between co-accused persons.
[15] In deciding whether to sever counts, the Court is called upon to exercise its discretion and balance, generally speaking, the risk of prejudice to the accused against the public’s interest in a single trial.
[16] It should be noted that Last, supra was an appeal by the accused from convictions after a jury trial. It is generally accepted that the risk of prohibited propensity reasoning and credibility cross-pollination is higher in a jury trial, even with a limiting instruction by the trial judge, than without a jury, however, it is clear that the decision of the Supreme Court of Canada in Last, supra has been applied in both scenarios. R. v. T.W., 2014 ONSC 4531 (S.C.J. – Campbell J.), at paragraph 13.
[17] The Crown opposes the Application. If severance is granted as sought by Mr. Hunter, then the Crown will proceed first, this week, with the trial of the charges involving E.C.
III. Analysis
[18] The burden of proof on this Application for severance rests with the accused. The standard of proof is on a balance of probabilities.
[19] The starting point is that any number of counts for any number of offences may be joined in the same indictment – subsection 591(1) CCC.
[20] Where the interests of justice so require, the Court may order that the accused person be tried separately on one or more counts – subsection 591(3)(a) CCC.
[21] As the Defence has quite responsibly focused on three key factors, I will concentrate on those same considerations. The Crown, in its written submissions at paragraph 12, focused on the same three factors, and thus, it is plain to me that everyone agrees on what the relevant considerations are in this case.
[22] The anticipated evidence, whether in separate trials or not, is not complex. There is no expectation, at this stage, that the accused will want to testify on some counts but not others. There is little to no chance of inconsistent verdicts. There will be no similar fact application by the Crown. The accused is not raising any section 11(b) Charter issue, and besides, the case is not stale in any event. The length of the trial is dealt with below as part of the discussion on the desire to avoid multiple proceedings. And there is no co-accused or a risk of antagonistic defences.
[23] Taking the three key factors in reverse order, with regard to the desire to avoid multiple proceedings, that factor goes against severance in this case, but only slightly.
[24] It is true that if severance is granted, there will have to be two trials instead of one. And it is possible that E.C. will have to testify twice, although only in brief at the trial involving the charges against M.F. It is asserted by the Crown that the accused made an inculpatory admission to E.C. that is relevant to the charges related to M.F.
[25] I do not accept that it is likely that M.F. will have to testify twice, a possibility averted to by the Crown in oral submissions. I am told by the Defence that collusion is not being raised in this case, and thus, I fail to see how M.F. will be a necessary witness during the trial of the charges involving E.C.
[26] It should be noted, however, that there are some practical advantages to granting severance. The total length of the two trials will not likely be greater than one trial on all ten counts. And, if two trials are required, it is likely that the trial on the counts involving E.C. can be completed this week, leaving enough time during these sittings in Walkerton to finish the third trial scheduled. Further, if two trials are required, it is safe to say that each of those trials will be more manageable than one trial on all ten counts. Finally, if two trials are required, it is likely that the second trial on the charges which do not involve E.C. can be heard in the Fall of 2015, together with the Defence Application to adduce evidence of the prior sexual history of M.F., when there is a visiting Justice already scheduled to preside over the criminal sittings in Bruce County.
[27] Regarding the factual and legal nexus between the counts sought to be severed and the remaining charges facing D.H., that factor weighs in favour of granting severance in this case.
[28] First, the counts sought to be severed involve an alleged victim (E.C.) different than the complainants involved in the remaining charges on the Indictment.
[29] Second, the nature of some of the charges involving E.C. is different than the nature of the remaining counts. For example, count 10 alleges that D.H. unlawfully confined E.C. That allegation has nothing to do with the nature of the charges involving the other complainants. As another example, the accused is charged with multiple counts of simple or common assault against E.C., while most of the charges involving the other principal complainant, M.F., are sexual offences. As a third and final example, D.H. is charged with threatening M.F. to cause bodily harm to a third party – the nature of that allegation is totally different from what the accused is charged with vis a vis the counts sought to be severed.
[30] Third, for the same reasons outlined by the Supreme Court of Canada in Last, supra, I place little weight on the fact that all of the charges on the Indictment allege crimes that took place in the same place, Hanover, and (except for the charge involving S.S.) in the same year, 2013.
[31] Finally, borrowing some of the language employed by the Supreme Court of Canada at paragraph 32 of its decision in Last, supra, I make these observations and conclusions. The alleged attacks on these various women are not “closely connected in any meaningful way”. The alleged criminal acts perpetrated against E.C. were not part of the “same transaction” or transactions identified in the other counts.
“Rather, the attacks were separate incidents. The trier of fact would not need to know about one in order to understand the other. The circumstances surrounding the charges were not sufficiently similar in character to have supported a similar fact evidence application. Accordingly, there was no truth-seeking interest in trying the counts together”.
[32] Ms. Martin is correct that the charges related to both E.C. and M.F. have some generic things in common: they allegedly occurred during the same rough time period; they involve alleged violence against women, specifically former female partners of the accused; they involve alleged sexual-related misconduct by D.H.; and they involve potential overlapping defences to be advanced by the accused.
[33] Having acknowledged those similarities, the significant differences outlined above, coupled with the fact that the primary defence being advanced by D.H. to the charges involving E.C. (a straight denial of all or most of the circumstances alleged) is not the same as that being advanced regarding the charges involving M.F. (consent or honest but mistaken belief in consent), lead me to conclude that there is no real factual or legal nexus between the charges sought to be severed and the remaining counts.
[34] The case before me is very different than what confronted the British Columbia Court of Appeal in R. v. Blacklaws, 2012 BCCA 217, [2012] B.C.J. No. 980. In that case, as can be seen at paragraph 31 of the dissenting opinion authored by Chief Justice Finch, which opinion was adopted by the Supreme Court of Canada in its short decision reported at [2013] S.C.J. No. 101, there were a number of significant similarities in the Crown’s version of the events underlying the charges against the accused.
[35] That is not the case here.
[36] With regard to the risk of prejudice to the accused, that factor tips in favour of granting severance in this case, but only minimally. This is a judge-alone trial, and I am expected to be able to withstand the temptation of, for example, improperly using the strength of the charges involving one complainant to bolster the case for the prosecution on charges involving another complainant.
IV. Conclusion
[37] This was a relatively close call.
[38] Having balanced the relevant factors and weighing them cumulatively, as I am directed to do by the Supreme Court of Canada in Last, supra, I conclude that the Defence has established on balance that the interests of justice require that the counts involving E.C. be severed from the Indictment and tried separately.
[39] Thus, the Defence Application for severance is granted.
[40] Before me, the accused shall be tried this week on counts 5, 6, 8, 9 and 10 (the charges involving E.C.).
[41] The remaining counts shall remain on one Indictment and be tried together, as agreed to by the Defence. Those charges shall be spoken to at the Assignment Court in Owen Sound in early February 2015 and be scheduled for trial during the Fall sittings with another Justice already arranged to be presiding over the criminal matters in Walkerton.
Conlan J.
Released: January 27, 2015
CITATION: R. v. D.H., 2015 ONSC 624
COURT FILE NO.: CR 14-880
DATE: 20150127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
D.H.
Defendant
REASONS FOR DECISION ON DEFENCE APPLICATION FOR SEVERANCE
Conlan J.
Released: January 27, 2015