Court File and Parties

COURT FILE NO.: 7638/16 DATE: 2017-05-30 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent D. Peterson, Counsel for the Crown

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NICHOLAS GOODCHILD Applicant J. Tremblay-Hall, Counsel for the Applicant

HEARD: May 29, 2017

GAREAU J.

Endorsement on Application

[1] Before the court is the applicant’s notice of application, dated April 26, 2017, which was heard by the court on May 29, 2017.

[2] In the application the applicant seeks to sever from the indictment dated March 1, 2016, count 1 which reads as follows:

Nicholas Goodchild stands charged that he on or before the 1st day of March, 2014 and the 20th day of October, 2014, at the City of Sault Ste. Marie in the said Region, did in committing a sexual assault on Lindsay Marie Brown Glass endanger the life of the said Lindsay Marie Brown Glass thereby committing an aggravated sexual assault, contrary to section 273(2)(b) of the Criminal Code of Canada.

[3] The Crown opposes the application to sever and wishes all remaining counts (counts 1 to 4) in the indictment to be tried together.

[4] The trial is scheduled to commence on June 20, 2017. Three weeks have been set aside for the trial of this matter, involving four complainants.

[5] I indicated to counsel that because the trial is upcoming I would provide a decision on the application by way of a brief endorsement and provide more fulsome written reasons at a later date.

[6] Although the Crown may include any number of counts for any number of offences in the same indictment, section 591(3) of the Criminal Code of Canada gives an accused person the right to have counts severed where the court is satisfied that the interests of justice so require. As set out in the jurisprudence, the onus is on the accused to establish on a balance of probabilities that the interest of justice requires that the counts be severed. The leading case on the factors to be considered to make this determination is R. v. Last, 2009 SCC 45.

[7] As noted in para. 17 of Last, the court is required to balance the risk of prejudice to the accused and the public’s interest in a single trial when deciding to sever counts in an indictment.

[8] Paragraph 18 of the Last decision makes it clear that the factors identified by the courts on a severance application are not exhaustive as is stated, “they simply help capture how the interests of justice may be served in a particular case, avoiding an injustice”. The factors set out in para. 18 of Last to be considered by the court include, “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 proceeding; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect of the right to be tried within a reasonable time; and the existence of antagonistic defences as between the co-accused persons”.

[9] In the case at bar, there are some factors not in play (such as the use of similar fact evidence at trial) and some factors that have been rendered neutral (the accused’s right to be tried within a reasonable time given the accused’s waiver of his s. 11(b) rights of delay if count 1 is severed and the trial on that count is delayed as a result).

[10] In considering the factors that are at play in the case at bar as set out in Last and weighing cumulatively all of the factors, I am satisfied that the applicant has met his onus and the interests of justice require the severance order to be made. In considering and balancing all of the factors I may have reached a different conclusion had the accused not waived his s. 11(b) right to a trial within a reasonable time if a severance order was made.

[11] The application is granted and count 1 in the indictment shall be severed. The trial now scheduled to commence on June 20, 2017 at 10:00 a.m. will deal with counts 2, 3 and 4 in the indictment. Counsel and the accused, Nicholas Goodchild, shall attend before me on June 19, 2017 at 10:00 a.m. at which time a date for the trial of count 1 will be set as well as a date for any pre-trial applications.

Gareau J. Released: May 30, 2017