ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-SA5103
DATE: 2015/11/10
PUBLICATION BAN UNDER S. 486.4(1) IN EFFECT
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ERIC RICHARDS
Applicant
J. Bocking, for the Crown
Paolo Giancaterino, for the Applicant
HEARD: October 27, 2015
RULING #1 – SEVERANCE APPLICATION
Aitken J.
Nature of Application
[1] The Applicant seeks severance of the allegations contained in the indictment so that the allegations relating to the complainant, S.D.,[^1] are tried separately from the allegations relating to the complainant, J.B.
Background
[2] The Applicant has been charged with sexual assault with a weapon and forcible confinement in regard to two separate incidents against two different women at two different times and places: S.D. in June, 2012, and J.B. in September, 2013. Both women were sex trade workers at the time of the alleged offences. The Applicant was arrested at the scene of the 2013 incident involving Ms. B., and DNA collected at that time, and other evidence, tied him back to the alleged offences of 2012 regarding Ms. D., in regard to which no assailant had previously been identified. That resulted in the second set of charges being laid.
Evidence Relating to S. D.
[3] S.D. will testify that, on the afternoon of June 18, 2012, she was approached by a man in a grey car while she was walking on Lafontaine Street in Vanier. The man asked whether she would like to make some quick money. Ms. D. was a former sex trade worker who was pregnant at the time. Because she was broke, Ms. D. agreed to go with the man. He drove her to the St. Laurent Sports Complex parking lot. The man took out his penis and asked Ms. D. to begin the agreed upon sexual service. When Ms. D. asked to be paid in advance, the man grabbed her breasts and prevented her from leaving the vehicle. He pulled her by the hair and pulled her back in the vehicle, brandishing a knife in his hand. The man told Ms. D. to remain silent or he would take her baby out of her. He then rubbed the knife on her stomach several times. Ms. D. complied. The man pulled down Ms. D.’s nylons with his free hand and roughly touched her vagina. When Ms. D. attempted resistance by stiffening her body so that he could not penetrate her, he punched her in the stomach. Ms. D. stopped resisting. The man vaginally penetrated Ms. D. and eventually ejaculated on her stomach and her sun dress. No condom was used despite Ms. D.’s request that one be used. The man then rolled a cigarette and the two of them smoked it together. Ms. D. requested another cigarette and then exited the car.
[4] The man quickly left the area in his vehicle, but Ms. D. was able to note down a partial licence plate (BDBD63) and a description of the man and the vehicle.
[5] Ms. D. attended the hospital the same day to have a sexual assault kit conducted but, after waiting for two hours, she decided to swab her own vagina and placed the swabs in a plastic bag. She also placed the cigarette given to her by the suspect, and her panties, sundress, and nylons, in another bag. She provided all of these items to the police on June 19, 2012.
[6] In an interview with the police on June 27, 2012, Ms. D. described the suspect as a white male, late 30’s-early 40’s, black hair, small guy (150 lbs, 5’7”, 5’8”). She described herself as being bigger than him in both build and height. She said the man wore glasses and was English-speaking.
[7] The police forwarded the sundress and the cigarette to the Centre for Forensic Sciences for analysis. The semen on the sundress and the saliva on the cigarette yielded DNA which was placed on the DNA database. When the Applicant was arrested in September, 2013, DNA evidence collected from a condom seized following his arrest matched the DNA obtained from Ms. D.’s sundress and the cigarette.
Evidence Relating to J.B.
[8] J.B. will testify that, on September 6, 2013, she was working as a sex trade worker on Montreal Street in Vanier when she was approached by the Applicant, who was driving a silver car. She agreed to get into his vehicle, and he drove her to Beechwood Cemetery. Upon arrival, when Ms. B. asked for payment up front for the anticipated sexual acts, the Applicant took out a knife and held it to Ms. B.’s throat, threatening her, and making her comply with his sexual demands against her will. He agreed to put on a condom, only after she begged him. The acts involved forced oral sex, vaginal penetration, anal penetration, digital penetration, and fondling of her breasts. The Applicant threatened to kill her if she did anything to lead to his capture, and he brushed the knife tip against her head and the dull side against her torso during the attack.
[9] Ms. B.’s screams attracted passersby, one of whom, Robert Smith, a cemetery employee, saw what was happening through the car window and opened the car door to assist Ms. B. He will testify that he saw a woman in the back of the car and the Applicant with his hand around her neck, trying to penetrate her. The driver’s side window was down, and he saw that the woman was on her hands and knees. He heard the woman scream “he is raping me, help me, help me”. Mr. Smith could see the condom on the Applicant’s penis. According to Mr. Smith, the Applicant then rolled off Ms. B. and pulled her back into the car. Then he accelerated away. Mr. Smith dialled 911 and then drove to intercept the vehicle. The vehicle crashed into a light post and a flower bed.
[10] When the Applicant got out of the vehicle, he said “I give up, I give up”, and he was detained by Mr. Smith. Mr. Smith observed that Ms. B. was no longer in the vehicle. The Applicant said that she had jumped out. The Applicant apologized to Mr. Smith for his actions and said that “he fucked up”. Ms. B. approached on foot at that point, screaming that the Applicant was the man who had raped her at knife point in the car. The Applicant indicated that the knife was on the driver’s seat, and Mr. Smith observed it there.
[11] The police arrived within minutes and arrested the Applicant. The police seized the knife from the seat of the vehicle and the used condom from the Applicant’s clothing. Police also seized the vehicle, which bore Ontario licence plate number BDBE683.
[12] The photos taken of the Applicant at the police station reveal a white male of slight build and height appearing to be in his early 40’s, with brown hair and glasses.
[13] A sample of the semen contained in the blue condom found on the Applicant, and a sample taken from a penal swab, and a swab taken from Ms. B.’s breasts were submitted to the Centre for Forensic Sciences. They were found to match the semen sample relating to the incident with S.D.
Similar Fact Evidence Application
[14] The Crown intends to bring a similar fact evidence application.
Applicant’s Stated Intentions
[15] Defence counsel advised that the Applicant intended to testify in regard to the allegations concerning J.B. and advance the defence of consent. Defence counsel also advised that the Applicant does not intend to testify in regard to the allegations concerning S.D., as, according to Defence counsel, identity is the issue in that case.
General Principles
[16] Under s. 591(1) of the Criminal Code, R.S.C. 1985, c. C46, the Crown may include any number of counts in an indictment, subject to the limitation regarding murder charges contained in s. 589. However, under s. 591(3), the court may, where it is satisfied that the interests of justice so require, order that the accused be tried separately on one or more of the counts. As stated by Deschamps J. in R. v. Last, 2009 SCC 45, at para. 16:
The interests of justice encompass the accused’s right to be tried on the evidence admissible against him, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.
[17] The court must weigh all relevant factors to ensure that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial, remembering that severance can impair not only efficiency but also the truth-seeking function of the trial (Last, at para. 17). Included in the factors to be considered by the trial court are the following:
• The general 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 a multiplicity of proceedings;
• The use of similar fact evidence at trial;
• The length of the trial having regard to the evidence to be called; and
• The potential prejudice to the accused with respect to the right to be tried within a reasonable time (Last, at para. 18).
[18] No one factor is determinative. All relevant factors must be carefully considered and weighed by the trial judge when determining whether severance is in the interests of justice. The onus is on the accused to satisfy the court, on a balance of probabilities, that the interests of justice require the severance of counts.
Analysis
[19] In the circumstances of this case, the following factors are particularly significant in determining whether a severance of counts is required to serve the interests of justice.
Accused’s Intention to Testify
[20] The underlying concern is that the accused have the ability to control his defence and to decide whether or not to testify with respect to each count on the indictment unimpaired by inappropriate constraints (Last, at para. 25). The accused has the right to choose whether or not to give evidence when charged with an offence and cannot be compelled to provide such evidence (Charter, ss. 7 and 11(c); R. v. Dorsey, 2012 ONCA 185, at paras. 41-43, 46).
[21] If the Defence indicates clearly that the accused intends to testify in regard to some but not all of the counts on the indictment, and if the circumstances objectively establish a rationale for the accused to proceed in this fashion, then the accused’s intention to testify is significant, but not necessarily determinative of a severance application.
[22] Here, Defence counsel advised that it is the Applicant’s intention to testify in regard to the J.B. charges because, according to Defence counsel, the issue in that fact situation is consent. According to Defence counsel, it is the Applicant’s intention not to testify in regard to the S.D. charges because, according to Defence counsel, the issue in that fact situation is identification. In fact, this was the same argument advanced in the Last case, which also involved numerous alleged sexual offences arising out of two separate incidents involving two different complainants, M.A. and S.M. Deschamps J. observed in Last, at para. 29:
While defence counsel could reasonably argue that the M.A. counts called for a distinct theory of the case from the S.M. counts, it is to be noted that the likelihood Mr. Last may feel strategically compelled to testify with respect to the M.A. counts as well as the S.M. counts could not be discounted. The Crown’s evidence implicating Mr. Last on the M.A. counts was not insignificant given Mr. Last’s admission that he was in her apartment just prior to the assault and M.A.’s identification of Mr. Last as her assailant. It was thus fairly probable he would have to testify in order to put forward his theory of the case – that it was someone else who entered M.A.’s apartment and committed the assault. Such a testimonial outcome was discernable at the time of the severance application.
[23] Deschamps J. concluded, at para. 30, that, although Mr. Last’s intention to testify on one set of counts and not the other was objectively justifiable, it did not constitute, in that case, a significant factor in view of the likelihood that his decision whether or not to testify would be the same in relation to both sets of counts.
[24] A similar observation was made by the Ontario Court of Appeal in R. v. Waudby, 2011 ONCA 707, at paras. 5-6 – another case involving alleged sexual offences against a number of complainants:
The appellant also argues that the trial judge did not attach sufficient weight to his stated intention to testify with respect to the LC counts. At the time of the application, he was unsure whether he would testify with respect to the HF and TK counts. In R. v. L. (G.E.), [2009 SCC 45], at para. 26, Deschamps J. indicated that the expression of an accused’s intention to testify should have both a subjective and objective component. The trial judge must simply satisfy him- or herself that the circumstances objectively establish a rationale for testifying on some counts but not others. The burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention.
Here, the accused had not satisfied that burden. The strength of the Crown’s case regarding TK included DNA evidence and was overwhelming. Absent an explanation for the presence of his DNA, he faced almost certain conviction. There was no objective rationale for the accused to testify in the LC case but not in the TK case. Subjectively, the accused had not indicated a definite intention not to testify on the other counts. Consequently, we do not agree that the trial judge under weighed this consideration.
[25] The comments in Last and Waudby are very relevant to the case at hand. In this case, although Ms. D. is unable to identify the Applicant as her assailant, there is DNA evidence linking him to the semen on her sundress that she handed over to the police shortly after the alleged assault, there is her physical description of her assailant which matches in several respects the Applicant’s appearance upon arrest, and there is the partial licence plate number that she took from the vehicle driven by her assailant, which virtually matches the licence plate number of the vehicle which the Applicant was driving at the time of his arrest. DNA evidence is very compelling. Thus, as with the circumstances in Last and Waudby, it is likely that the Applicant’s decision whether or not to testify will be the same in relation to both sets of counts. Thus, even if it is assumed that there is an objective basis for the Applicant to testify in regard to the J.B. offences, but not the S.D. offences, because of Defence counsel’s argument that different issues are involved in each case, the fact that there is DNA evidence linking the Applicant to the D. offences and calling out for an explanation, reduces to a great extent the significance of the Applicant’s stated intention to testify in regard to the J.B. counts but not the S.D. counts.
Factual and Legal Nexus Between the Two Incidents
[26] There is a strong factual nexus between the two incidents, as reflected in the following table of similarities.
S.D.
J.B.
Complainant was sex trade worker.
Complainant was sex trade worker.
Assailant approached complainant in broad daylight on busy street in Vanier area.
Assailant approached complainant in broad daylight on busy street in Vanier area.
Complainant driven to parking area where no one was close at hand.
Complainant driven to parking area in secluded spot.
Final negotiations regarding sex occurred once car was at locale where assault occurred.
Final negotiations regarding sex occurred once car was at locale where assault occurred.
Complainant demanded payment up front.
Complainant demanded payment up front.
Assault started when complainant demanded payment up front.
Assault started when complainant demanded payment up front.
Complainant tried to leave the vehicle and Assailant prevented her from doing so.
Assailant prevented complainant from leaving vehicle through threats.
Assailant threatened complainant with knife and rubbed knife on her stomach.
Assailant threatened complainant with knife and brushed knife tip against her head and the dull side against her upper torso.
Assailant grabbed complainant’s breasts, pulled her hair, punched her in the stomach.
Assailant fondled complainant’s breasts.
Assailant penetrated complainant vaginally.
Assailant penetrated complainant digitally, orally, vaginally, and anally.
Assailant ejaculated.
Assailant ejaculated.
Assailant did not want to use a condom.
Assailant did not want to use a condom.
Complainant received no payment.
Complainant received no payment.
Assailant described as being white male, late 30’s-early 40’s, small in height and weight, English speaking, wearing glasses.
Assailant’s appearance on arrest: white male, early 40’s, slight in height and weight, wearing glasses.
Assailant’s car described as being grey and part of its licence plate was BDBD63
Assailant’s car was silver/grey with licence plate BDBE683
Applicant’s DNA was recovered from semen on complainant’s sundress that she was wearing when assaulted.
Applicant’s DNA was recovered from semen in condom in Applicant’s clothing seized following arrest and on Applicant’s penis.
[27] Defence counsel focused on the following differences, which he set out in a table submitted at the hearing, with references to earlier statements or testimony:
S.D.
J.B.
Date of incident: July 18, 2012
Date of incident: September 6, 2013
Complainant was pregnant.
Complainant was not pregnant.
Complainant taken to a parking lot, but not the most secluded spot.
Complainant taken to the most secluded part of the cemetery.
Assailant did not instantly pull the knife out when payment was demanded up front. The attacker tried to find money first and had a discussion about not having money before pulling the knife when complainant tried to leave. (S.D. interview pp. 10·11)
Assailant allegedly pulled the knife instantly when payment was demanded up front before complainant made any attempt to leave. (J.B. Preliminary Vol. 2, p. 58)
Assailant did not immediately start hitting the complainant. (S.D. interview pp. 10-11)
Assailant started immediately hitting complainant in the face. (J.B. Preliminary Vol. 2, p. 60)
Assailant laughed and refused to put on condom. Complainant begged him to do so and said she had HIV. (S.D. interview pp. 12-13)
Assailant allowed complainant to put condom on him after she begged him to wear one. (J.B. Preliminary Vol. 2, p. 66)
Assailant did not take any action to force the complainant to look at him.
Assailant forced complainant to look directly at his face at one point while assaulting her. (J.B. Preliminary Vol. 2, p. 74)
Complainant said assailant’s demeanour changed so rapidly it was like he had multiple personalities. (S.D. interview p. 10)
No similar observation.
Complainant noticed assailant’s eyes changed and went dark and cold before the attack. (S.D. interview p. 10)
No similar observation.
Assailant made no comments about whether he had been with a woman recently.
Assailant made comments about not having been with a woman for a long time. (J.B. Preliminary Vol. 2, p. 65)
Assailant tried to have full intercourse immediately. (S.D. interview p. 27)
Assailant did not attempt full intercourse immediately, engaged in other sex acts first. (J.B. interview pp. 6-7)
Assailant did not force complainant to perform oral sex. (S.D. Preliminary Vol. 4, p. 105)
Assailant forced complainant to have oral sex. (J.B. Preliminary Vol. 2, p. 31)
Assailant did not anally penetrate complainant with either his fingers or his penis. (S.D. Preliminary Vol. 4, p. 105)
Assailant anally penetrated complainant with his fingers and then his penis. (J.B. Preliminary Vol. 2, pp. 31, 76)
Assailant tells complainant that she has to pretend she is his girlfriend if anyone comes by. (S.D. interview p. 28)
No similar comment.
Knife was a non-foldable hunting knife with a brown handle. (S.D. interview p. 24)
Knife was a foldable stainless steel serrated blade with a black handle.
Complainant described car as dark grey, not close to silver, hatchback. (S.D. interview p. 15)
Car was light grey/silver/beige.
Complainant described assailant as having black hair. (S.D. Preliminary Vol. 4, pp. 87-88)
Smith described assailant as having unkempt, mid-length salt and pepper hair. (Smith interview p. 38). Complainant described assailant has having short brown hair with a brown mustache. (J.B. interview p. 21).
[28] There are striking similarities between the two incidents, including the type of victim chosen (sex trade worker), the locale (Vanier), the initial interaction (the assailant stopping his vehicle by the complainant and inviting her into the car to provide sexual services), the destination (isolated locales not very distant from where the assailant picked up the complainants), the trigger for the assault (both complainants asking for money up front), the weapon used (knife), the threats made (injure the complainant with the knife), the use of physical force, (strikes, pulling complainants into vehicle), some of the sexual acts (vaginal intercourse and ejaculation), the car used (grey with partial plate BDBD63, or silver/grey with plate BDBE683), the description of the assailant, and the same assailant’s DNA in semen retrieved from each scene.
[29] The differences pale in comparison, most relating to the reality that no two incidents involving an assailant and a victim will unfold in identical fashion when two individuals are in a dynamic, conflictual, interaction (R. v. L.B. (1997), 35 O.R. (3d) 35, at para. 37 (C.A.)).
[30] In addition, there is a legal nexus, in the sense that the key issue in both cases is likely to be the credibility of the complainant, and it can be anticipated that there will be an aggressive attack on the credibility of the sex trade workers. It may be that consent is the central issue regarding Ms. B.’s case, whereas the issue of identity may play some role in the case of Ms. D. However, with DNA evidence being available in Ms. D.’s case, as well as Ms. B.’s case, it is difficult to conclude that the true issues in both cases will ultimately be different.
Disposition
[49] Taking all of these factors into account, I have not been satisfied by the Applicant on a balance of probabilities that the interests of justice require the severance of the counts regarding Ms. D. from those regarding Ms. B. The application is denied.
AITKEN J.
Released: November 10, 2015
COURT FILE NO.: 13-SA5103
DATE: 2015/11/10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
ERIC RICHARDS
Applicant
RULING #1 – SEVERANCE APPLICATION
Aitken J.
Released: November 10, 2015
[^1]: In the indictment, this complainant is referred to as “D.”. In various other materials filed on this application, this complainant is referred to as “D1”. In these Reasons, I will refer to this complainant as “D.”.