Court File and Parties

COURT FILE NO.: 7638/16 DATE: 2017-06-01 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

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

- and -

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

HEARD: May 29, 2017

GAREAU J.

Reasons on Severance Application

[1] These reasons follow my endorsement released on May 30, 2017 in which I granted the application brought by the accused to sever Count 1 in the indictment dated March 1, 2016.

[2] As I indicated in that endorsement, I considered the factors set out in R. v. Last, 2009 SCC 45, 2009 S.C.C. 45 which I will discuss more fully in these reasons.

Prejudice to the Accused

[3] The 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 was 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 discredible tendencies.

[4] The risk of prejudice is greater, for obvious reasons, in cases where the accused is tried by a jury. Even in cases of a jury trial, it has been held that concerns about possible prejudice to the accused can be addressed by proper instructions to the jury. (R. v. Chaulk, 2012 ONSC 3169; R. v. R.K.M., 2012 ONSC 1040; and R. v. L.S.I., 2012 ONSC 6205).

[5] Mr. Goodchild has elected trial by judge alone. I agree with the line of thought that 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.

[6] Accordingly, I conclude that there is no real danger of reasoning prejudice or moral prejudice in this trial if a severance is not granted.

Factual Nexus

[7] The accused is charged with the same offence with respect to all four complainants, namely, that he committed aggravated sexual assault, contrary to s. 273(2) of the Criminal Code of Canada. The other similarities between the complainants are the fact that they are female and were all involved in some form of sexual relationship with the accused. Balanced against these limited similarities are numerous dissimilarities, including apart from Ms. Glass the other complainants had casual sexual encounters with the accused. The case of Ms. Glass is different in that she had a serious relationship with the accused that ultimately led to a common-law living arrangement between the two of them. In addition, it is alleged that Ms. Glass continued to have sexual relations with the accused after his disclosure of his HIV status, and continued to live with him after this disclosure thereby raising the issue of consent which is different from the situation involving the other three complainants.

[8] Considering the dissimilarities, the factual nexus favours a severance of Count 1 in the indictment, involving the complainant Lindsay Glass.

Legal Nexus

[9] The charges involving all complainants are the same. The charge against Lindsay Glass raises facts unique to that case which raises a potential legal defence not available in the case of the other complainants. The legal nexus factors favour a severance of Count 1.

The Complexity of the Evidence

[10] The evidence will not be made more unduly complicated or more lengthy whether or not a severance is granted. This factor is neutral.

The Use of Similar Fact Evidence at Trial

[11] The Crown does not intend to bring a similar fact application at this time making this factor neutral.

Multiplicity of Proceedings

[12] If a severance is granted the charge in Count 1 will require three to four days of trial time before a different judge. Obviously one trial will make better use of judicial resources and will involve less stress and inconvenience to witnesses who may be required to testify at two separate trials. Accordingly, this factor favours one trial and no severance.

Possibility of Inconsistent Verdicts

[13] Given the facts of this case, this factor is neutral.

Length of Trial

[14] Even if a severance is granted on Count 1, the trial of this count may be delayed but it will not lengthen in any serious way the total time of three weeks presently set aside for the trial of all four counts in the indictment. This factor is neutral.

Right to be Tried within a Reasonable Time

[15] The severance, if granted, will result in a delay of the trial on Count 1 which may impact the accused’s constitutional right to be tried within a reasonable time, especially in view of R. v. Jordan, 2016 SCC 27. This is an important factor to consider, especially in the post Jordan era which requires cases in the Superior Court of Justice to be tried within 30 months from the time the charge is laid.

[16] In the case at bar, the accused has indicated on the record his waiver under s. 11(b) on Count 1 if a severance is granted. This is a concession of some significance. As I indicated in the endorsement released on May 30, 2017, in considering and balancing all of the factors, I may have reached a different conclusion on the issue of severance had the accused not made this waiver. The s. 11(b) waiver made by the accused renders this factor neutral.

The Intention of the Accused to Testify

[17] Counsel for the applicant indicated that the accused intends on testifying with respect to Count 1, but not with respect to Counts 2, 3 and 4 in the indictment. Consent is an issue that exists in Count 1 but not in counts 2, 3 and 4 as is issues surrounding the credibility of the complainant Lindsay Glass and the reliability of her evidence.

[18] The 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 of 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.

[19] On the facts of this case I find that the applicant has established a rational for testifying on Count 1 but not on the other counts in the indictment. This factor weighs in favour of the severance being granted.

Conclusion

[20] As is indicated in paragraph 10 of the endorsement released on May 30, 2017, in considering all of the factors set out in R. v. Last, and weighing cumulatively all of the factors, the severance order requested by the applicant should be granted. Accordingly, Count 1 in the indictment shall be severed.

Gareau J. Released: June 1, 2017