ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. L.M., 2017 ONSC 5159
PEMBROKE COURT FILE NO.: 16-445
DATE: August 31, 2017
B E T W E E N:
HER MAJESTY THE QUEEN
Peter Barnes for the Respondent, Her Majesty the Queen
Respondent
- and -
L.M.
Paul Lewandowski for the Applicant
Applicant
HEARD: June 5, 2017
REASONS FOR DECISION
James, J
Facts
[1] This is a defense application to sever the counts in the indictment.
[2] The applicant has waived any entitlement to claim that his trial(s) have been unreasonably delayed due to the severance of the counts if the application is granted.
[3] There are four complainants in this case. Some of the allegations are historical and some are more recent.
[4] The earliest allegations are those A.M., a niece of the applicant, now 61 years old. Her allegations date back to March, 1967 when she was about 11or 12 and the accused was 18 years old. The applicant was babysitting A.M. and her younger siblings. The applicant induced A.M. to go to the basement where he forced her onto a cot and, despite her resistance and protestations, removed at least some of her clothing and penetrated her vagina with his penis. The attack ended when A.M.’s younger brother called for her at the top of the basement stairs.
[5] Moving forward in time a few years to 1974, there is another set of allegations by C.K., now 57 years old. Ms. C.K. is a cousin of A.M. and also a niece of the applicant. Her allegations relate to when she was about 14 years old. She travelled to Ottawa with the applicant and his wife for a family wedding. After the reception, they stayed in the apartment of the bride and groom who spent the night elsewhere. Ms. C.K. slept on the couch in the living room. The applicant and his wife occupied the bedroom. During the night Ms. C.K. awoke to the presence of the applicant lying on top of her. He was naked. She pushed him away and he took a position sitting at one end of the couch while she sat at the other end. He asked her if she liked what she saw, that she could touch his penis and could pretend it was a lollipop. The situation ended when the applicant’s wife came into the living room and asked what he was doing. He said he must have been sleep walking. They returned to the bedroom and Ms. C.K. could hear them arguing.
[6] There was another incident when Ms. C.K. was about 16 years old and she was working at a local clothing factory. While walking home at lunch time, the applicant drove by in his truck and offered Ms. C.K. a ride home. As it was raining, she accepted. He pulled over in an isolated spot and tried to embrace her. She kicked at him and started to cry. He said that he wouldn’t do anything and requested that she not tell anyone. As they drove back into town he repeated his request that she not tell anyone and said that it wouldn’t happen again.
[7] The next incident is alleged to have occurred sometime between 2004 and 2007 when the applicant assaulted his partner, R.F.. The circumstances involved a request by the applicant to engage in sexual activity. When Ms. R.F. refused, the applicant grabbed her head and her hair. She fought back, ended up on the floor and then left the house.
[8] The last most recent allegations involved Ms. R.F.’s daughter, C.F.. C.F. says that from when she was about age 12 to 16 the applicant touched her breasts, kissed her, fondled her vagina and forced her to touch his penis.
[9] Defense counsel has proposed different modes of severance. His first position is that the counts in relation to A.M. be severed from the remaining counts. Alternatively, he proposed that the historical offences be separated from the more recent ones. As a further alternative, he proposes that the count involving R.F. be severed.
Applicable Principles
[10] It is the prerogative of Crown counsel to join any number of counts in the same indictment, subject to a judicial severance of counts where the interests of justice require (s. 591, Criminal Code).
[11] The onus is upon the applicant on a balance of probabilities to demonstrate that the interests of justice warrant severing the counts.
[12] The determination of whether severing counts is appropriate involves an assessment of the various factors described in R. v. Last, [2009] S.C.N. No. 45 which are listed below:
i) The factual and legal nexus between the counts.
Crown counsel says a nexus is made out in that there is evidence of similar acts arising from the other counts to buttress the credibility of the individual complainants.
In some cases, the counts are separated by many years. While an argument in support of a similar facts ruling may be viable, at this stage evidence across counts is presumptively inadmissible. There is not a compelling nexus between the counts. This weighs in favour of the applicant.
ii) Undue complexity of the evidence
This is not a major consideration. None of the counts is appreciably more complex than any other counts.
iii) General prejudice to the applicant
This includes the risk of cross-pollination on credibility assessments. Other considerations include the fact that the case will be tried without a jury which is generally regarded as presenting less risk of propensity reasoning, although this risk is difficult to eliminate completely. This factor ought to weigh in favour of the applicant.
iv) Will the applicant testify?
The applicant has indicated he is likely to testify in relation to the allegations by A.M. but not the other complainants. Crown counsel counters this by undertaking to cross-examine only in relation to A.M. if the counts are not severed and the applicant elects to give evidence. Because of this, I would assess this factor as close to neutral.
v) The possibility of inconsistent verdicts
This is not a significant factor.
vi) Multiplicity of proceedings
Obviously a severance of the counts would entail a separate proceeding but it does not appear to me that the total time required for trial would be significantly increased.
vii) Similar fact evidence
This factor requires an assessment of the viability of a similar fact application by Crown counsel. Such an application is typically made at the close of the Crown’s case.
At this stage, however, a preliminary assessment can be made. If there were similar facts between the counts, this would be an important consideration in favour of the Crown on the question of severance.
Not surprising, Crown and defense counsel differ in their assessment of the viability of a similar facts request in support of the prosecution.
Naturally Crown counsel is attracted to the prospect of multiple complainants testifying at a single trial. While there may be some similarities, there are also significant differences between the different incidents.
As is usually the case, it will be the credibility of individual complainants that will figure prominently in the trial(s). In my view the similar facts issue is not so clear at this time that it ought to trump the other factors.
Disposition
[13] On balance it is my view that the assessment of the various factors favours the applicant.
[14] I think there is merit to separating the counts in terms of historical and more recent allegations. The severance will reduce the general prejudice to the applicant. At the same time the lack of temporal proximity between the two sets of counts will reduce the impact of the severance if Crown counsel presses the similar facts issue. Therefore, the counts involving A.M. and C.K. shall be severed from the counts involving R.F. and C.F..
Mr. Justice Martin James
DATE RELEASED: August 31, 2017
CITATION: R. v. L.M., 2017 ONSC 5159
PEMBROKE COURT FILE NO.: 16-445
DATE: August 31, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
L.M.
Respondent
REASONS FOR DECISION
Mr. Justice Martin James
DATE RELEASED: August 31, 2017