R v. RC, 2016 ONSC 6593
COURT FILE NO. CR-14-10000763
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Regina v. RC
BEFORE: E.M. Morgan J.
COUNSEL: Tim DiMuzio, for the Crown (Respondent)
Bella Petrouchinova, for the Defendant (Applicant)
HEARD: September 15-16, 2016
ENDORSEMENT – SEVERANCE Application
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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
1The Applicant is charged with six counts of sexual assault and one count of sexual exploitation, coming from four different complainants. He applies to have his charges severed and heard separately.
2Section 591(3)(a) of the Criminal Code provides that, “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.” The Court of Appeal has indicated that, “Whether to grant severance of counts is a discretionary decision”: R v Thomas (2004), 72 OR (3d) 4158, at para 37 (Ont CA).
3The onus is on the Applicant to establish on a balance of probabilities that the ends of justice require severance: R v JJD, [1997] OJ No 451, at para 6 (Ont Gen Div).
4The Applicant submits that evidence admissible from each of the complainants would be inflammatory and prejudicial to the Applicant’s right to a fair trial if heard by the jury at a joint trial. In addition, the Applicant contends that his decision to testify in response to some of the complaints and not others will hamper his ability to have a fair trial.
I. The charges
5The Applicant is a professional photographer specializing in nude photography. Each of the complainants came to him to be photographed and to seek advice on promoting their respective careers as models. Each alleges that the Applicant sexually assaulted them during the course of a pre-arranged photo shoot in his studio.
6The allegations range from non-consensual intercourse to brief touching of the breast. All four complainants were young and inexperienced, although only one of them was just before her 18th birthday and so was actually a minor at the time of the Applicant’s alleged offense. The Crown contends that the Applicant’s common pattern of behaviour was to engage in manipulative behavior and exploit the complainants’ vulnerability as aspiring models vis-à-vis him as an experienced photographer.
7Counsel for the Crown intends to bring a similar fact application to permit the evidence from each of the charges to be introduced in the record for the other charges. That application will presumably be heard by the trial judge (or judges).
8There is evidence of pre-arrest discussions between three of the four complainants. All three of those involved in the discussions were put together by a former partner of the Applicant’s with whom he had a falling out. Applicant’s counsel has indicated that the Applicant intends to testify in the cases against the 3 allegedly colluding complainants, but likely will not testify against the fourth complainant.
II. The complainants
9Counsel have provided a summary of the allegations of each of the four complainants, as follows:
a) NH
Date of alleged incident: July 2009
Offending conduct: touching breasts
Location: studio
Number of alleged incidents: 1
Discussion with anyone: boyfriend (a year later)
Age at time of incident: 20
Words used: comments about personal appearance and self-confidence to build confidence level
“Don’t worry, it’s just like a doctor”
“You put in a full day of work, maybe we should not shoot”
Complainant went into the washroom to change and came out wearing a robe with nothing underneath
Applicant calmly approached from behind and touched breasts
b) CA
Date of alleged incident: May 2008
Offending conduct: intercourse
Location: studio
Number of incidents: 1 incident, 2 charges (sexual assault and sexual exploitation)
Discussion with anyone: one friend and Applicant’s former partner
Age at time of incident: 17
Words used: “Don’t worry like everything is safe and fine whatever, do you want to shoot this way”
“Models have to be naked to be successful”
“Go into the washroom to change”
He conducts “model boot camp”
“Lay down on a bench, take off all your clothes” and then touching all over
“I will just set up a hammock for you”
“You can come up to my bed”
“If I could have sex with every model then they would have the best photoshoot”
c) AR
Date of alleged incident: March 2011
Offending conduct: touching breasts and vagina
Location: studio
Number of incidents: 2 (same day)
Discussion with anyone: boyfriend, several friends, Applicant’s former partner
Age at time of incident: 22
Words used: Text message – “Last minute great opportunity”
“I never touch models”
“How hard do you want to be pushed on a scale of 1-10”
“Dress up time”
Applicant directed her how to pose in front of a mirror
“Are you excited? Do you like the shoes?”
“Are you excited – let me check”
d) KK
Date of alleged incidents: October, November, December 2009
Offending conduct: intercourse
Location: studio
Number of incidents: 3 (different dates)
Discussion with anyone: boyfriend, Applicant’s former partner
Age at time of incident: 18
Words used: “I could never shoot you like the other women in editorial magazines”
“You do not have to go into the bathroom to get changed”
“I have seen everything before”
When you shout with me you were not exuding enough emotion”
“Have you ever been touched in general?”
“I can already see the light in your eyes”
“It is time”
“Come over and play”
III. Severance principles
10In R v Last, 2009 SCC 45, [2009] 3 SCR 146, at para 18, the Supreme Court set out the factors to be weighed in order to assess severance in a criminal case. The pertinent factors are: a) the general prejudice to the accused, b) the legal and factual nexus between the counts, and c) the desire to avoid a multiplicity of proceedings.
11Counsel for the Applicant stresses that prejudice to the accused is extremely pronounced for the NH complaint, since that is the case with the least aggressive allegations. She further submits that including the CA complaint with the other three is highly prejudicial as well, since CA is the one underage complainant and a jury will likely perceive the allegation of sexual misconduct with a minor as a much more egregious offense. Counsel contends that this will, in turn, taint the jury’s assessment of the other offences.
12Counsel for the Applicant adds that a limiting instruction to the jury will not provide a complete solution to this problem. As the Court said in Last, at para 46, “While a limiting instruction can limit the risk of inappropriate cross-pollination or propensity reasoning, courts should not resort to a limiting instruction unless there is a valid reason to do so. As with the accused’s intention to testify, the limiting instruction is but one factor in the balancing exercise.”
13As for a legal and factual nexus between the counts, counsel for the Applicant states that, “Similarity is in the eye of the beholder.” She argues that in almost any situation, if one looks for factual similarity, one will find factual similarity. Here, she submits, there is no close nexus in time (the allegations span a 4-year period, from 2008 to 2011), and the charges entail distinct acts of sexual contact and relationships that do not particularly share the same modus operandi.
14Applicant’s counsel’s view is that the only nexus between the counts is that the Applicant is alleged to have exploited his position as a photographer and potential career mentor. The Applicant’s position is that this is perilously close to saying that he is the type of person to take advantage of his position – which, of course, is a type of propensity reasoning in which a trier of fact should not engage. Other than this, Applicant’s counsel states that there were no unifying threats that connect the complainants, and no repeated coercion by the Applicant.
15Finally, Applicant’s counsel submits that the desire to avoid a multiplicity of proceedings is always a factor for the court. If this concern is taken too far or viewed in isolation, it will always incline toward including all of the counts in one trial. However, she submits, administrative convenience and efficiency do not trump the right to a fair trial.
16In addition, Applicant’s counsel points out that at this stage we do not know whether the Crown will be successful on its similar fact application. Generally, “The court will not grant severance if the evidence of one count can be characterized as similar fact evidence with respect to other counts”: R v Smith, 1993 SKQB 8846, 112 Sask. R. 305, para 11.
17The similar fact question will have to be left unanswered for now. I do not have it squarely before me, and on this severance Application I do not have to determine that the evidence of the four incidents is “strikingly similar”, as will the judge who hears the actual similar fact application. At this stage, in order to keep all of the counts together in a single trial, I only have to make the determination that there is a viable similar fact application that could possibly succeed if the evidence comes out the way the Crown advances: R v Minister, 20112 ONSC 1040, at para 46.
18The Court of Appeal has pointed out that even if there is a strong legal and factual nexus, the trial judge will not err in refusing severance even if some of the evidence is admissible against some of the complaints but not against others. In R v ES 2000 ONCA 3240, [2000] OJ No 405 (Ont CA), the evidence was not classified as similar fact evidence, but nevertheless the court stated that the trial judge did not err in refusing to grant severance of the multiple counts. Counsel for the Crown submits that here, by contrast, the similar fact evidence is viable and strong. It is not a situation analogous to Last, where, at para 37, the Court observed that, “[t]he attacks on the women were not connected in any meaningful way.”
19The Court of Appeal indicated in Thomas, supra, at para 37, that where the allegations are significantly stronger in some counts than in others, or the acts alleged are substantially more severe, severance may be justified. In addition, in JJD, supra, at para 11, it was suggested that the case would have been an appropriate one for severance had there been an indication that the accused planned to testify in respect of some of the counts but not others. If the counts are all tried together, the Applicant may feel compelled to testify in all of the cases so that he can answer at least one of them. That would effectively undermine his Charter right not to be so compelled: R v Dorsey (2012), 2012 ONCA 185, 288 CCC (3d) 62, at paras 46-48 (Ont CA).
20It is clear from the allegations and the potential defenses that three of the four cases are closely related – i.e. those in which the defense’s allegation of collusion with the Applicant’s former partner as the common denominator (CA, AR, and KK). These are also the counts with the most egregious allegations against the Applicant. These three complainants allege sexual intercourse and vaginal touching.
21Of course, counsel for the Applicant seeks severance of all of the complaints, and so would like the three complainants who the Applicant accuses of collusion to also be distanced from each other in separate trials. She indicates that at trial the defense will not be raising the issue of collusion if the proceedings are all kept separate.
22The fourth complainant (NH) had nothing to do with the Applicant’s former partner, and was not in touch with the other three complainants, either directly or through an intermediary, in bringing her complaint to the attention of the police. She alleges that the sexual assault on her took the form of brief touching of her breasts during the course of a photography session. She alleges no vaginal touching, intercourse, or any other sexual act.
23While all four of the complainants allege offenses that took place in the context of a photo shoot in the Applicant’s studio, the severity of the offending conduct, together with the fact that the Applicant’s former partner is alleged to have put them together and fostered their complaints to the police, distinguishes CA, AR, and KK from NH. For those three complainants, the Crown has a viable similar fact argument.
24For the NH complaint, the Crown’s similar fact argument is far weaker. The factual allegations are not at the same level of severity, and there is no suggestion that NH had contact with the Applicant’s former partner. It would be very prejudicial to a trial of the relatively mild allegations made by NH to combine them with the very severe allegations made by the other three complainants.
25Furthermore, the Applicant has indicated that he does not intend to testify in response to the NH complaint, but that he does intend to testify in response to the other three complainants. He has a Charter right to chose whether to remain silent or to testify. If the four cases are tried together, the jury hearing him testify in the CA, AR, and KK cases will inevitably hear him testify in the NH case. Even if he does not mention the NH case when he takes the stand, his silence on one case compared with his testimony about the other three cases will potentially be read by a jury as an acknowledgment of guilt in the one silent case.
26By contrast, there is nothing unduly prejudicial about trying the CA, AR, and KK cases together. The complainants allege very similar conduct in very similar circumstances. The complainants are all aspiring models who came to the Applicant for a photography session. They all state that they were looking to the Applicant for professional guidance and an initiation into their modelling careers, but that what they got was an initiation into coerced sex.
27CA, AR, and KK are all young women. The fact that one is a few weeks shy of her 18th birthday and one a few weeks past her 18th birthday should not have much of an impact on the jury. While CA is the only complainant who is, formally speaking, a minor, the principle of exploitation of a vulnerable young woman applies to all of the allegations against the Applicant. He will inevitably have to defend that case, and will do so equally effectively if the CA, AR, and KK cases are tried together.
IV. Disposition
28The charges against the Applicant call for the counts relating to one of the complainants to be tried separately from the counts relating to the other three complainants. The differing factual allegations, the issue surrounding the potential defense of collusion, and the Applicant’s desire to testify in the case relating to the three allegedly colluding complainants, make this severance necessary.
29Accordingly, the case in which NH is complainant is severed from the cases in which CA, AR, and KK are complainants. The latter three are to be tried together, while the NH case is to be tried separately.
Morgan J.
Date: October 24, 2016