R. v. C.L., 2017 ONSC 281

CITATION: R. v. C.L., 2017 ONSC 281

COURT FILE NO.: 838/16

DATE: 20170117

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

C.L.

Applicant

Susan Bruce, for the Crown

Renée E.M. Gregor, for the Applicant

HEARD: January 5, 2017

DECISION ON APPLICATION

Cornell J.:

Introduction

1This is an application by the accused to sever the various sexual offences involving his niece, D.D., from the counts involving the other three complainants. In accordance with the reasons that follow, the application is denied.

Background

2C.L. is charged with various sexual offences involving D.D., G.L.-D., D.G. and E.L. at a time when all of the complainants were minors. D.D. and G.L.-D. are sisters. D.G. is a step-sister of D.D. and G.L.-D. It was agreed by defence counsel that these three individuals could all be treated as sisters.

3E.L. is a friend of D.D.

4C.L. is the uncle of D.D. and G.L.-D. and the step-uncle of D.G.

Allegations Involving D.D.

5When D.D. was 12 years of age, she went for a ride in a car with the applicant. The applicant stopped the car and asked D.D. if she wanted to learn a life lesson by showing him her “coochie.” D.D. refused on two occasions.

6D.D. eventually complied with the applicant’s request to pull down her shorts and underwear. After doing so, the applicant proceeded to rub D.D.’s vaginal area and insert a finger into her vagina.

7When D.D. was 12 or 13 years of age, she engaged in a game of hide and seek during a period of time when the applicant was babysitting. D.D. hid in a closet in the basement. After being joined by the applicant, the applicant asked her more than once if she wanted a “rubbing.” Despite D.D. saying no, the applicant put his hand on her clothing over the vaginal area. The incident ended when D.D. jumped out of the closet when she heard her brother coming down the stairs.

8When D.D. was 12 or 13 years of age, the applicant was again babysitting. The applicant asked D.D. to join him in the living room. When D.D. complied with this request, the applicant used a laptop computer to show D.D. images of naked women touching themselves. The applicant took out his erect penis and asked D.D. to suck it. D.D. refused. When the request was repeated, she complied. The incident ended less than a minute later when D.D.’s parents were heard returning to the home.

9When D.D. was 13 years of age, the applicant asked her if she wanted to play a game of truth or dare with her and D.G. The applicant asked D.D. to “make out with him.” D.D. said no. When the applicant asked again, D.D. kissed the applicant on the lips. D.G. then left the basement. The applicant then took out his penis, pulled D.D.’s shorts and underwear down and tried to “stuff” his penis into her vagina. The result was him “pressing against the outside.” The activity stopped when D.D.’s brother was heard coming down the stairs to the basement.

Allegations Involving G.L.-D.

10When G.L.-D. was 13 years of age, she went for a car ride with the applicant. The applicant stopped the car and said many things, including that G.L.-D. had to touch him or he had to touch her as that was the only way G.L.-D. could go home. G.L.-D. said that she just wanted to go home. After further discussion, the applicant started to drive. He asked G.L.-D. to pick “naughty or nice.” Despite the fact that G.L.-D. picked “nice,” the applicant said that he wanted to either touch her or see her chest. As the drive continued, the applicant explained that he had only been joking. He later dropped G.L.-D. off at her home.

Allegations Involving D.G.

11D.G. refers to the applicant as “uncle.” When she was 12 or 13 years of age, she was watching a movie with her step-siblings. The applicant came in and sat next to her. When the movie was over, the applicant brought D.G. into the bedroom that she shared with D.D. The applicant sat beside D.G. on her bed. He proceeded to touch her vaginal area over the top of her clothes using a circular motion. After about a minute, D.G. told the applicant to stop. The applicant continued for another minute until D.G. told him once again to stop. After the applicant moved his hand away, D.G. got up and returned to the living room.

Allegations Involving E.L.

12E.L. was a friend of D.D. During a visit at D.D.’s home when both girls were 15 years of age, the girls agreed to go with the applicant for a car ride. They drove to a Tim Horton’s. The girls went in to get drinks. When they returned, the applicant wanted the girls to change places so E.L. could sit in the front seat. After driving around, the applicant stopped in a convenience store parking lot. E.L. pointed out that the store was closed. During the course of further discussion, the applicant asked E.L. to “suck his dick.” E.L. said no. According to the Crown version of events, the applicant then asked D.D. if E.L. would actually suck it. D.D. said she did not know. The applicant then asked E.L. again. E.L. refused. The applicant said that if E.L. was not going to suck his dick, he could grab her “tits.” To this, E.L. also said no. The applicant then proceeded to return the girls to D.D.’s house.

Agreements

Pre-Trial Applications

13One of the complainants is related to an individual that works at the court house. In view of this, it was agreed that it would be necessary to bring in an out-of-town judge to hear the trial. Ordinarily, it would be the trial judge who considers a severance application. Given the scheduling difficulties associated with bringing in an out-of-town judge for pre-trial applications and the constraints that now exist given the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27, 398 D.L.R. (4th) 381, counsel agreed that I could hear any pre-trial applications, including the severance application, in my capacity as case supervision judge.

Support Person

14Counsel for the applicant agreed that the Crown application to permit a support person for D.D., D.G. and D.L., D.D.’s brother, should be granted.

Use of Screen

15Counsel for the applicant consented to the Crown’s application to permit D.D., D.G., and E.L. to testify with the use of a screen in the event that any of those individuals are under 18 years of age at the time that they testify.

Analysis

16Although the Crown may include any number of counts for any number of offences in the same indictment, s. 591(3) of the Criminal Code, R.S.C. 1985, c. C-46, gives an accused person the right to have such counts severed where the court is satisfied that the interests of justice so require. The onus is on the accused to establish on a balance of probabilities that the ends or interests of justice require that the counts be severed: see R. v. McNamara (No. 1) (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.), at para. 118. I am required to take into consideration the various factors set out in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 18, and have structured the remainder of my decision accordingly. When deciding whether to sever the various counts in the indictment, I am required to balance the risk of prejudice to the accused and the public’s interest in a single trial: see Last, at para. 17.

Prejudice to the Accused

17The court must be concerned with the risk that the accused’s right to a fair trial on the merits could be impacted by moral and/or reasoning prejudice as defined in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 100 and 139. These concerns were summarized in R. v. J.M., 2011 ONSC 3924, at para. 8:

There is a risk of prejudice to an accused when evidence properly admissible on one count may affect the verdict on another count. Such prejudice may amount to what has been referred to as “reasoning prejudice”, that is, evidence properly admissible on one count might raise sentiments of revulsion and condemnation that deflect the trier from a rational dispassionate analysis of the case. Such prejudice might also amount to what has been referred to as “moral prejudice” or propensity reasoning, that is, evidence properly admissible on one count may lead the trier to conclude that the accused has discreditable tendencies.

18It is the position of the Crown that the risk of prejudice is not a factor in this case as the accused has elected to be tried by a judge sitting without a jury. Unlike juries, judges have training and experience to appropriately apply the applicable rules of evidence.

19All of the cases cited by counsel where a severance had been granted involved cases with a jury. Even in the case of a jury trial, it has been held that concerns about possible prejudice to the accused could be addressed by proper instructions to the jury: see R. v. Chaulk, 2012 ONSC 3169, R. v. R.K.M., 2012 ONSC 1040, and R. v. L.S.1, 2012 ONSC 6205. If the concern about propensity reasoning can be overcome by proper instructions to a jury, then the risk of prejudice to an accused as a result of moral or reasoning prejudice gets substantially diminished, if it exists at all, in a judge alone trial.

20A careful consideration of the factual background and the nature of the allegations in this case leads me to conclude that there is no real danger that reasoning prejudice or moral prejudice would be factors in this trial if a severance is not granted.

Factual Nexus

21There are a number of factual similarities involving all four complainants. They are all female. They were all young females ranging in age from 12 to 15 at the time of the alleged offences. Three of the complainants are sisters who referred to the applicant as “uncle.”

22The invitation to sexual touching involving E.L. took place in the presence of D.D. who was a participant in the conversation initiated by the applicant about sexual activity.

23The nature of the allegations also bears scrutiny. Counsel for the applicant points to the fact that the allegations involving D.D. are more serious in that they include touching the vaginal area as well as an attempt at sexual intercourse.

24Some background is necessary. The original 20 count indictment included three counts of an invitation to sexual touching involving D.D. In an effort to bring greater focus to these proceedings, the Crown has replaced that indictment with a seven count indictment that does not include counts alleging an invitation to sexual touching by D.D. Be that as it may, the fact remains that one count in the new indictment alleges that the applicant invited D.D. to suck his penis. Although the remaining three counts in the new indictment pertaining to D.D. do not allege an invitation to sexual touching, the facts in support of those three counts make it clear that in each of those three counts, there was an invitation to sexual touching prior to the sexual act itself.

25I am left with the fact that there is a clear pattern on the part of the applicant to engage each of the complainants in a discussion about sexual activity that is followed by an invitation to sexual activity itself. When viewed in this light, and taken with the other similarities, it becomes clear that the view urged upon me by counsel for the applicant takes a far too narrow approach.

26I therefore find that there is a factual nexus involving the allegations made by each of the complainants and this factor does not assist the applicant.

Legal Nexus

27There is a legal nexus in this case as all of the charges pertain to allegations involving sexual offences involving young girls. This is not a case where an unrelated or disparate offence has been included in the indictment. As a result, this factor also does not assist the applicant.

The Complexity of the Evidence

28It was conceded that the evidence will not be complex or lengthy if the severance is not granted. In view of this, this factor weighs in favour of not granting the severance.

The Intention of the Accused to Testify

29Counsel for the applicant indicated that it was the applicant’s intention to testify with respect to the counts involving G.L.-D., D.G. and E.L., but it was not the applicant’s current intention to testify concerning the allegations involving D.D. due to perceived weaknesses in her credibility as assessed following the preliminary hearing and Crown disclosure.

30The approach to be taken when assessing this factor was addressed by the Supreme Court of Canada at para. 27 of Last, which reads as follows:

While an accused’s provisional intention with respect to testifying is certainly a consideration which should be given significant weight, it is but one factor to be balanced with all the others. An accused’s stated and objectively justifiable intention to testify on some but not all counts is not necessarily determinative of a severance application. It can be counterbalanced by other circumstances that the judge finds may prevent the accused from testifying, or be outweighed by factors that demonstrate that the interests of justice require a joint trial.

31Given the position outlined on behalf of the applicant, I find that there is both a subjective and objective basis to support the applicant’s stated intentions in that the applicant has established a rational for testifying on some counts but not others. Given this finding, this factor weighs in favour of the severance being granted.

32Having made that finding, it is necessary that a further observation be made. The Crown has made it clear that whether or not the severance application is granted, it is their intention to bring a similar fact application. If the trial judge grants the similar fact application, then the accused will be faced with the prospect of testifying if he wishes to deny the allegations that have been made by G.L.-D., D.G. and E.L.

The Possibility of Inconsistent Verdicts

33If the severance application is granted and if the Crown’s similar fact application is granted in both trials, it will be necessary for findings of credibility to be made by the trial judges in both trials. This raises the possibility that depending upon such credibility findings, inconsistent verdicts might result.

34This is a factor that weighs in favour of a joint trial.

Multiplicity of Proceedings

35If a severance is granted, both trials must be heard by an out-of-town judge. Given the possibility that a severance may be refused, ten days have been set aside commencing January 30, 2017, with an out-of-town judge to preside. Counsel agree that if the severance application is refused, it is expected that the trial can be completed within this period of time.

36If the severance is granted, I am advised that the earliest available date for the second trial would be from June 26^th to July 7^th, 2017. This presents a problem as the decision of the Supreme Court of Canada in Jordan requires that trials in this court be completed within 30 months of the date of arrest. As the accused was arrested on January 2, 2015, his trial must be completed by July 1^st of 2017. This factor weighs in favour of a joint trial.

37The issue of similar fact evidence must once again be considered. These charges involve young girls, some of whom will be under 18 years of age at the time of the trial. They have already testified once at the preliminary hearing. If a severance is granted and the Crown’s similar fact application succeeds, the complainants will be required to testify and be subject to cross-examination on two more occasions. This is undesirable.

38One trial will make better use of judicial resources and will involve less stress and inconvenience to the complainants and other witnesses. Accordingly, this factor favours a joint trial.

The Use of Similar Fact Evidence at Trial

39As previously stated, it is the Crown’s intention to bring a similar fact application whether the severance is granted or not.

40Counsel for the applicant took the position that the Crown’s similar fact application was unlikely to succeed for two reasons. First, it was suggested that the evidence given by D.D. and G.L.-D. at the time of the preliminary hearing was considerably different. Second, defence counsel asserted that the nature of the allegations made by D.D. and the other complainants was so different that a similar fact application was unlikely to succeed. I disagree. Although D.D. and G.L.-D.’s version of events involving the allegations made by G.L.-D. were somewhat different, the basic story was the same. The factual nexus that I have outlined leads me to conclude that the Crown has a viable argument to support the Crown’s similar fact application.

41At this stage, I cannot say whether or not the Crown will ultimately succeed in its’ similar fact application. Having said that, I am satisfied that for the purposes of this application, it is only necessary that the Crown’s similar fact application be viable and I find that it is: see R.K.M., at para. 46.

The Length of the Trial

42As previously stated, both counsel agree that if no severance is granted, the matter can be completed within the ten days that have been allocated for trial time.

43If the Crown’s similar fact application is granted, the second trial will essentially be a duplication of the first trial. This factor weighs in favour of a joint trial.

Potential Prejudice to the Accused Re Right to be Tried Within a Reasonable Time

44Given the comments that I have made about the accused’s constitutional right to have his trial completed within 30 months of his arrest, this is a factor that weighs in favour of a joint trial.

Conclusion

45I have considered and weighed cumulatively all of the factors. Apart from the accused’s desire to testify on some counts and not others, the balance of the factors favour a joint trial.

46After a full consideration of all of the factors, I conclude that the public’s interest in a single trial outweighs any risk of prejudice to the accused. Accordingly, the severance application is refused.

The Honourable Mr. Justice R. Dan Cornell