CITATION: R. v. G.W., 2016 ONSC 1018
COURT FILE NO.: CR-15-30000262-0000
DATE: 20160212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
G.W.
Accused
Melissa Mandel, for the Crown
Jeffrey Mazin, for the Accused
HEARD: February 5, 2016
B.A. ALLEN J.
REASONS FOR DECISION
(Application to sever counts on an indictment)
FACTUAL BACKGROUND
[1] The trial is scheduled as a judge and jury trial. The accused seeks a severance of some of the counts on the indictment. The accused, G.W., is charged: on count 1, assault; on count 2, assault; on count 3, threaten bodily harm; on count 4, break and enter into a dwelling place; on count 5, being unlawfully in a dwelling place; on count 6, sexual assault; and on count 7, sexual assault. It is alleged Mr. W. committed these offences between September 1, 2008 and April 20, 2014 against a complainant who was initially his girlfriend and then his wife.
[2] The assaults, sexual assaults and uttering a threat are alleged to have occurred between the fall of 2008 and the fall of 2013. The breaking and entering into a dwelling place and being unlawfully in a dwelling place are alleged to have occurred on April 20, 2014.
[3] The sexual assaults are alleged to have begun in 2008 when Mr. W. and his then girlfriend, A. Z.-T., were students at Queen’s University. They later moved to Toronto. They were married and had two children. Mr. W. is alleged to have committed two further sexual assaults and to have threatened bodily harm in Toronto. The first of the assaults was alleged to have occurred at Ms. Z.-T.’s parents’ home in 2010 and the second at Mr. W.’s home in 2013.
[4] An occurrence on April 20, 2014 brought Ms. Z.-T. to complain to the police.
[5] Ms. Z.-T. brought the matrimonial dispute between her and her husband to family court where, among other claims, she sought and obtained a restraining order against Mr. W. prohibiting him from being in contact with her. On April 20, Ms. Z.-T. returned to her home accompanied by her father. They found Mr. W. in the home. Mr. W. had gathered some property from the apartment and had packed them into a bag. He left the bag behind when he fled the premises. In the bag were several articles, a child’s bike helmet, a camera, a cutting board and an iron. There were also a number of Ms. Z.-T.’s panties and bras in the bag.
[6] The occurrence on April 20 gave rise to the charges against Mr. W. for breaking and entering into a dwelling place and unlawfully being in a dwelling place. On April 20, Ms. Z.-T. also reported to the police the earlier sexual assaults, assaults and the threat to bodily harm. Mr. W. was arrested on April 21, 2014.
THE ISSUE
[7] Is the defence entitled to a severance of the sexual assaults, assaults, and threat to bodily harm counts (“the pre-2014 counts”) from the breaking and entering into a dwelling place and unlawfully being in a dwelling place counts (“the 2014 counts”)?
THE LAW
The Criminal Code
[8] The Criminal Code allows the defence to obtain a severance of counts on an indictment in the interests of justice. Section 591(3) provides:
591(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; and
(b) Where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts.
[9] The Code provides no criteria to evaluate when it would be in the interests of justice to grant a severance. This has been left to the courts.
[10] A 2009 Supreme Court of Canada case established the ground work criteria for assessing when the interests of justice require a severance. The interests of justice embody an accused’s right to be tried on the evidence admissible against them balanced with society’s interest in ensuring justice is done in a reasonably efficient and cost-effective manner. What is sought to be avoided is the risk that trying counts together will result in evidence inadmissible on one count influencing the verdict on another unrelated count: [R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at paras. 16 and 17, (S.C.C.)].
Case Law
R. v. Last
[11] The Court developed the criteria in relation to a case involving one accused who was alleged to have committed sexual assaults against two different complainants, unlike the circumstances in the case at hand.
[12] In R. v. Last the accused was charged with two sexual assaults involving different women, which offences occurred one month apart at different residences in London, Ontario. On the first incident, the accused is alleged to have held a gun to the forehead of the complainant before choking her and committing the sexual assault. At trial, the accused testified that he had consensual sex with the complainant. The complainant said that in the second incident Mr. Last hit her in the head with a mug before choking her to unconsciousness. With respect to this second allegation, the defence was one of identity.
[13] The burden is on the defence to prove on a balance of probabilities that a severance should be granted based on the cumulative effect of all the factors to be considered: [R. v. McNamara (No. 1) (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193, at p. 265, (Ont. C.A.)]. The Supreme Court established a non-exhaustive list of criteria for the trial judge’s consideration:
a) general prejudice – the possibility that hearing the counts together would invite the jury to engage in impermissible credibility bolstering and prohibited propensity reasoning;
b) legal and factual nexus − factual considerations such as time, place and location of the offences; legal factors such as whether the counts charged constitute overlapping transactions or have essential elements in common;
c) the complexity of the evidence – the intricacy of the evidence related to the charges;
d) the defendant's intention to testify − the intention to testify on one but not the other count should be objectively justifiable in order to weigh in favour of severance;
e) administrative efficiency − the desire to avoid a multiplicity of proceedings; where one trial will accomplish the ends of justice, that is to be preferred over more than one trial;
f) the possibility of inconsistent verdicts – the possibility that separate proceedings will result in inconsistent verdict outcomes;
g) the use of similar fact evidence at trial – whether or not the counts comprise a series of offences of the same or similar character;
h) potential prejudice to the accused − related to the Charter right to be tried within a reasonable time; and
i) the existence of antagonistic defences − as between co‑accused persons.
[14] The Supreme Court in R. v. Last decided the interests of justice required a severance of the counts and separate trials for the allegations of the two complainants. The Court decided there was an insufficient factual connection between the circumstances of the offences against the two complainants, the only linkage being a common perpetrator.
Other Cases – An Accused, Multiple-Count Indictments and Multiple Complainants
[15] Many of the cases involving severance engage claims of prejudice where one accused seeks to sever counts related to one complainant from another (or other) complainants, or one accused seeks that counts related to another or other accuseds be severed from their counts. The following cases, like R. v. Last, involve the former type of severance application.
[16] In one case, an accused was charged with ten counts: seven counts of sexual assault, one count of uttering a threat, and one count of unlawful confinement, offences that involved three complainants in the town of Hanover, Ontario. Five of the counts related to one complainant, that is, three assaults, one sexual assault and one unlawful confinement, all offences occurring between April and December 2013. The court allowed the severance on the basis that the counts involving the latter complainant were different from the other counts; the nature of some the common assault charges involving that complaint was different from the sexual assault and threatening charges against the other complainant. Little weight was placed on the fact the offences occurred in the same place: [R. v. H. (D.), 2015 ONSC 624, 2015 CarswellOnt 922 (Ont. S.C.J.].
[17] In another trial, an accused faced charges of: sexual assault on his common-law spouse in 2000; criminal harassment of another woman in 2012; and possession of child pornography in 2012. All offences occurred in Toronto. The court held that the sexual harassment charge should be severed from the child pornography charge owing to the potential prejudice that could be cast on the sexual harassment charge by evidence irrelevant to that charge that could have a stigmatizing effect. The trial judge further held that the sexual assault in 2000 should be severed from the sexual harassment charge for a lack of legal and factual nexus between the two events: [R. v. W. (T.), 2014 CarswellOnt 10752, at paras. 19 and 20, (Ont. S.C.J.)].
[18] The accused in another case was charged with uttering a threat against his landlord. The accused was picked up by the police in relation to that threat. He was charged on further counts of utter threats and a count of assault against a police officer which resulted from an encounter with an officer on his way to the police station. About two weeks later at court the accused tried to disarm an officer upon seeing the officer with whom he had the earlier encounter. The court found the first two incidents were close in time. The incident with the landlord provided the context and a motive for the accused to behave as he did with the officer on his way to the station. The accused’s upset at court was also close in time to the other incidents. The court found the incidents were intertwined and that the accused’s reaction to his arrest in relation to the landlord and his involvement with the police officers were necessary to establish context. The court found a joint trial would result in minimal prejudice to the accused: [R. v. Malcolm, [2008] O.J No. 3613 (Ont. S.C.J.)]
Cases – An Accused, Multiple-Count Indictments, Without Multiple Complainants
[19] The majority of cases involving multiple counts against one accused have found it not in the interests of justice to sever counts and order separate trials.
[20] A case heard on appeal involved a single accused who was charged on an indictment with a weapon and child pornography offences. The defence sought a severance of the weapon and child pornography counts. The trial judge refused the application. The defence argued the trial judge erred in failing to sever the child pornography charge from the weapons charge. The Ontario Court of Appeal upheld the trial judge’s decision finding no prejudice to the accused resulted from conducting a joint trial:
Whether to grant severance is a discretionary decision. The trial judge made no error in principle and her decision is not unreasonable. There was little, if any, prejudice from the joint trial. There was no suggestion that the appellant used the weapon or that it had anything to do with his use of his computer to make child pornography available. There was little likelihood that the jury would reason from the fact that the appellant was in possession of the gun that he was therefore more likely to have made child pornography available.
[R. v. Robins, 2013 ONCA 65, at para. 2, (Ont. C.A.)]
[21] In another case, the accused, a police officer, was charged on a four-count indictment. Counts 1 and 2 involved breach of trust and obstruction of justice charges relating to a domestic violence trial and counts 3 and 4 involved two breaches of trust charges. The accused applied to sever counts 1 and 2 from counts 3 and 4 on the ground that her defence on counts 1 and 2 was based on her compliance with her obligations as a police officer and her defence on counts 3 and 4 was entrapment. The court disallowed the severance on the basis there was a strong factual nexus between the counts sought to be severed since they all flowed from her work as a police officer and related to her boyfriend. The court held that severing the counts would remove the factual context and the jury would wonder why the police targeted the accused in the manner that they did: [R. v. Darnley, 2015 CarswellOnt 8984 (Ont. S.C.J.)].
[22] In a further case, the accused was stopped and arrested by the police as the accused was leaving a residence which was the scene of a home invasion. The police searched the accused and found personal property belonging to the resident of the home and found a meat cleaver concealed inside his pants held in a makeshift holster made from a bandana. The accused sought a severance of the weapon count from the other counts on the indictment. The court found there was a direct continuum from the home invasion to the arrest and the search of the accused and that the events were not separate in time or location. It was found to be the same incident factually and legally and that the sequence of events of all the charges was inextricably tied to one another: [R. v. Dunbar, 2010 CarswellOnt 11169 (Ont. S.C.J.)].
[23] In another case an accused sought a severance of several drug counts from the counts on the indictment that charged him with sexually assaulting, unlawfully confining and uttering threats to the complainant who was 14 years old at the time. The accused was the complainant’s mother’s drug dealer. He sexually assaulted the complainant while he was at the mother’s home and on a later occasion in his car after he offered her some drugs. The police conducted a raid and the accused fled leaving the complainant unlawfully confined in his car. The accused sought a severance on the basis that prejudice would result from a joint trial. The court found the accused failed to establish the drug allegations had no or limited connection to the sexual assault allegations. The court found the status of the accused as the complainant's mother's dealer provided context to the complainant’s and the accused’s relationship: [R. v. Thomas, 2008 CarswellOnt 425 (Ont. S.C.J.)].
[24] There are two cases involving one accused and multiple counts where the court granted severances of counts in the interests of justice.
[25] In a Saskatchewan case, an accused was charged with four sexual offences and one count of obstructing justice. The sexual offences were historical, occurring in 1997, and the obstruct justice offence occurred in 2013. The accused sought to sever the obstructing justice count from the sexual offences. The accused argued his right to remain silent in response to the sexual offence counts could be affected were he to testify on the obstruction of justice count. The court found that the determining factor in the interests of justice was the accused’s ability to remain silent in answer to the sexual offence counts. Separate trials were ordered: [R. v. Jardine 2015 SKQB 32, 2015 CarswellSask 70 (SKQB)].
[26] In a Newfoundland case, an accused was charged with twelve sexual offences involving six complainants. He was convicted on seven of the charges involving five complainants. He sought a severance of the counts, requesting one trial for each complainant. Four complainants each alleged one sexual offence and one complainant alleged three sexual offences. The accused argued the counts should be severed for a lack of legal or factual nexus among them. The court held the interests of justice required that the three counts related to one complainant be severed from the four counts related to the four other complainants (three of the four were sisters) with the result there would be two trials. The court found this would facilitate handling issues of similar fact evidence and the alleged collusion among the three sisters: [R. v. F. (D.P.) 2001 CarswellNfld 51, Nfld. Sup.Ct.)].
ANALYSIS
Impermissible Propensity Reasoning by Jury
[27] The defence argues on this criterion that there is a possibility that hearing the pre-2014 and the 2014 counts together would invite the jury to engage in impermissible propensity reasoning. The defence points particularly to the fact that Ms. Z.-T.’s panties and bras were found in the bag of articles Mr. W. was attempting to remove from the home on April 20.
[28] The defence submits the attempt to take his wife’s underwear, which is irrelevant to the sexual assault charges, could incite the jury to attribute to Mr. W. the propensity to commit the sexual assaults because of the seeming unsavouriness of his attempt to steal his wife’s underwear.
[29] The defence referenced the consideration by the trial judge in R. v. W. (T.) that the irrelevant evidence of the accused’s “unsettling” “hobby” of collecting child pornography could taint the jury’s judgment on the sexual assault charges. The court found in that case there was an absence of factual and legal nexus between the pornography charges and the sexual assault charges.
[30] As I find below, there is a contextual connection between the pre-2014 and the 2014 offences in the case at hand. That is a basis of distinction with R. v. W. (T.). Similar to the findings of the court in R. v. Robins with respect to a child pornography charge, considering the taking of the underwear in the case at hand, I find there would be little likelihood the 2014 charges would have an appreciable prejudicial effect on the defence to the sexual assault offences. Although there is a contextual relationship, I find there is at most a tenuous adverse association that could be drawn between the sexual assaults and the taking of the underwear.
[31] I find this is the type of situation quite suited to limiting instructions to the jury. Instructions would serve to offset the possibility of any prejudicial spill over onto the sexual assault counts from the counts involving the underwear.
[32] The customary instruction to the jury could be given cautioning them against propensity reasoning to avoid the jury inferring from the taking the underwear that Mr. W. would have a tendency to behave in a particular manner, that it would be likely that Mr. W. committed the sexual assaults and other offences against his wife.
[33] Another instruction commonly given to a jury faced with multiple charges against an accused could also be given. The jury could be cautioned that they must consider the evidence with respect to each count separately and weigh the evidence with respect to each count independently and come to independent verdicts on each count. This mean the jury would be warned to consider the evidence in respect to the sexual assaults and other pre-2014 charges separately from each other and separately of the evidence on the 2014 charges and arrive at separate verdicts.
Legal and Factual Nexus
[34] I find there is no legal nexus between the pre-2014 counts and the 2014 counts. The transactions in the offences do not overlap and they have no common essential elements.
[35] The earlier pre-2014 offences happened in Kingston, Ontario, a different city, and several years before the 2014 offences, which occurred in Toronto. However, the same is not true of the later pre-2014 offences. They occurred in Toronto and closer in time to the 2014 offences which also occurred in Toronto.
[36] In R. v. Jardine the obstruction of justice charge was in relation to an allegation the accused attempted to pay the complainant to recant her complaints related to the four sexual charges. There was a 15-year time span between the sexual charges and the obstruction of justice charge. A factual nexus but no legal nexus existed between the counts. The court in R. v. Jardine granted a severance based on the accused’s intention to testify on the sexual charges and not the obstruction of justice charge. The interests of justice issue related to the effect on the accused’s ability to remain silent on the sexual charges while responding to the obstruction of justice charge. This is not a concern raised in the case at hand.
[37] On a whole, in view of the strength of the R. v. Last criteria that disfavour severance, I place little emphasis on the different locations and the time gaps between the commissions of the offences.
[38] I find there is a factual nexus between the counts. I make a finding similar to that made in R. v. Darnley, R. v. Dunbar, R. v. Malcolm and R. v. Thomas. The pre-2014 charges of assault, sexual assault and uttering a threat, like the courts found in the other cases, provide a context for the breaking and entering and unlawfully being in a dwelling house charges. I find the jury would be left with a factual vacuum as to why Mr. W. was unlawfully in the home if the counts are not tried jointly. Unlike the finding in R. v. Last, I find there is a sufficient factual nexus between the circumstances of the two sets of offences to allow them to be tried jointly.
[39] Also connecting the two sets of charges is the fact the 2014 offences were what motivated Ms. Z.-T. to go to the police and report not only the alleged breaking and entering but also the assaults and threat by her husband.
[40] On a whole I find the factual nexus weighs in favour of a joint trial.
The Complexity of the Evidence
[41] The evidence in relation to each set of charges is not overly involved or complicated. Basically the same witnesses will be required for the pre-2014 and 2014 charges and evidence from the pre-2014 charges will be required to provide context for the 2014 charges. This tends in favour of a joint trial.
The Defendant's Intention to Testify
[42] The accused has not expressed an intention whether or not he would testify on either set of charges. Again, this is distinguishable from R. v. Jardine.
Administrative Efficiency
[43] There will be some but little overlap in the evidence. As noted above, basically, the same witnesses will be called upon in relation to the two sets of charges with evidence that is not overly complicated. Combining the evidence in one trial would not likely have the potential of being confusing to the jury particularly if cautionary instructions are given. This favours a joint trial.
The Possibility of Inconsistent Verdicts
[44] This case does not pose a risk of inconsistent verdicts.
The Use of Similar Fact Evidence at Trial
[45] While there is a factual nexus between the two sets of charges in the case at hand, the material facts underlying the charges are not similar. The Crown has not made a similar fact application. In such circumstances severance need not necessarily be granted particularly where there are factual connections between the allegations: [R. v. Johnson, 2005 CarswellOnt 4625, at para. 10, (Ont. C.A.)].
[46] The case at hand is distinguishable from R. v. F. (D.P.) where separate trials were ordered in relation to concerns over the handling of similar fact evidence and the possibility of collusion among some of the witnesses.
[47] As noted earlier, any potential for the 2014 offences to influence the verdicts on the pre-2014 offences can be mitigated with limiting instructions to the jury. I find on this criterion the benefits to the administration of justice balance in favour of having the counts tried together.
Potential Prejudice to the Accused
[48] As a general proposition, an accused is prejudiced by a failure to bring their case to trial within a reasonable time. The desire to avoid a multiplicity of proceedings is related to this constitutional right. Mr. W.’s request to separate the trial of the pre-2014 charges from the 2014 charges poses a challenge to this interest. The accused’s interest in having separate trials must be balanced against the countervailing interest to have his charges tried within a reasonable time. I find in view of my findings on the other criteria that the balance on this criterion tips in favour of a joint trial.
The Existence of Antagonistic Defences as Between Co‑Accused Persons
[49] This criterion is not a consideration in this case.
CONCLUSION
[50] I am required to consider all the criteria together and weigh them cumulatively. I find the defence has not met its burden on the balance of probabilities. Based on my findings on the totality of the criteria I find the interests of justice can best be served by trying the pre-2014 counts and the 2014 counts together.
DISPOSITION
[51] A severance of counts 4 and 5 from counts 1, 2, 3, 6 and 7 on the indictment is not granted.
B.A. ALLEN J.
Released: February 12, 2016
CITATION: R. v. G.W., 2016 ONSC 1018
COURT FILE NO.: CR-15-30000262-0000
DATE: 20160212
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
G.W.
Accused
REASONS FOR DECISION
(Application to sever counts on an indictment)
B.A. ALLEN J.
Released: February 12, 2016