CITATION: R. v. Merritt, 2017 ONSC 5302
COURT FILE NO.: CRIMJ(P) 1459/16
DATE: 20170906
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Brian McGuire and Eric Taylor, for the Crown
Respondent
- and -
MELISSA MERRITT and CHRISTOPHER FATTORE
David Berg and Joel Hechter, for Melissa Merritt
Jennifer Myers and Daisy McCabe-Lokos, for Christopher Fattore
Applicants
HEARD: August 9, 2017 at Brampton
RULING No. 13: Application for Severance of Count 3
RESTRICTION ON PUBLICATION
Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
F. DAWSON J.
I
[1] Christopher Fattore applies for a separate trial on count 3 of the indictment pursuant to s. 591(3) of the Criminal Code. He submits that because the cases against him on counts 1 and 2 of the indictment are much stronger than is the case against him on count 3 he will be prejudiced in his defence of count 3 if all charges are tried together. He submits there is a real risk that the jury will engage in prohibited forms of propensity and bad character reasoning that cannot be cured by a limiting instruction. He also submits that he wishes to testify in relation to count 3 but not in relation to counts 1 and 2 of the indictment.
[2] The respondent submits that the interests of justice require that the counts be tried together because there is a strong factual and legal nexus between all three counts. The respondent submits that, particularly in respect of proof of motive, much of the same evidence is relevant and admissible in relation to all three counts. On the issue of identity of the perpetrator, the respondent has filed an application for the admission of count to count similar fact evidence.
II
[3] Melissa Merritt and Christopher Fattore are jointly charged in Count 1 with the first degree murder of Ms. Merritt’s former husband, Caleb Harrison, on August 23, 2013. They are also jointly charged in Count 2 with the first degree murder of Caleb Harrison’s mother, Bridget Harrison, on April 21, 2010. Mr. Fattore alone is charged in Count 3 with the second degree murder of Caleb Harrison’s father, Bill Harrison, on April 16, 2009.
[4] Each of the deceased were found dead in the Harrison family home in Mississauga in circumstances which initially suggested that their deaths were not homicides. Bill Harrison was found slumped between the toilet and the wall of a main floor powder room. The bathroom door was locked. His death was originally attributed to a cardiac arrhythmia. Bridget Harrison was found at the foot of the stairs in a position that suggested she may have fallen down the stairs. Her death was not initially considered to be a homicide. Caleb Harrison was found tucked into his bed with his sleeping mask on. Caleb Harrison’s death was the first to be determined to be a homicide. That led to the re-investigation of the deaths of Bill and Bridget Harrison.
[5] Melissa Merritt and Caleb Harrison had two children together. A long and bitter custody and access battle was ongoing throughout the time frame of all three of the alleged murders.
[6] Christopher Fattore and Melissa Merritt were in a common law relationship that began prior to the death of Bill Harrison. They have four children together.
[7] The applicants were arrested on January 28, 2014. During a lengthy post-arrest interview Mr. Fattore confessed to the murders of Caleb and Bridget Harrison. He said he killed them because he could not stand how they treated Ms. Merritt and the two children who were the focus of the child custody dispute. He also explained that the other children did not understand why two of the children moved back and forth between the Harrison and Merritt and Fattore households. He said they had not told their own children that the others had a different father. In essence, Mr. Fattore admitted that he killed Caleb and Bridget Harrison to assist Ms. Merritt in regaining custody of the children.
[8] The evidence indicates that Caleb and Bridget Harrison died as a result of neck compression. The official cause of Bill Harrison’s death has been changed to “undetermined”. There is evidence that all three of the deceased suffered blunt force trauma. In the case of Bill’s death there is a dispute between the pathologists as to whether he was assaulted or fell.
[9] Mr. Fattore maintained in his statement that he had nothing to do with the death of Bill Harrison. He said he had no problem with Bill. The applicant points out that there is other evidence to the effect that Bill Harrison got along with everyone.
[10] Bill Harrison was described as a fit 64 year old man with no known health problems of significance. While an autopsy was performed, it was not a forensic autopsy as neither the police nor the coroner advised the pathologist, Dr. Timothy Feltis, that there was any reason to suspect foul play. No photographs were taken and no samples were kept. This made subsequent re-consideration of the autopsy results problematic. Bill Harrison’s body was cremated.
[11] Dr. Feltis found that Bill Harrison had a broken sternum without any associated rib fractures. He noted some marks on Bill Harrison’s neck which appeared to be associated with a chain Bill Harrison wore. Police photos from the scene where the body was found show those marks. Dr. Feltis concluded that Bill died of natural causes. He thought Bill either had a cardiac arrhythmia and fell, hitting his chest on the corner of a bathroom counter, or that he fell and hit his chest causing a heart arrhythmia from which he died. He has previously testified that he saw no petechial hemorrhages or other evidence of neck compression. When the police began their re-investigation of the death Dr. Feltis told them that he did not believe Bill Harrison had been choked or suffered neck compression.
[12] Dr. Michael Pollanen, the Chief Forensic Pathologist for Ontario, has reviewed the evidence in relation to Bill Harrison’s death. He has expressed the opinion that Bill Harrison was subject to a serious assault shortly before his death. He bases his opinion largely on the nature of the injury to Bill Harrison’s sternum. He is of the view that this was the result of the application of a significant blow and is not consistent with a fall onto the edge of a counter. Bill Harrison’s body also showed other signs of trauma. However, Dr. Pollanen is expected to testify that without autopsy samples and photographs he is unable to provide a cause of death. He testified at the preliminary inquiry that based on his review he could not rule out neck compression. He has explained that in referring to cardiac arrhythmia in the original post-mortem report, Dr. Feltis did not describe a cause of death but a manner of death. That is why the official cause of death has been changed to “undetermined”.
[13] There is much more to the evidence of the pathologists than I have summarized here. What is significant from the perspective of the current application is that there is an issue as to whether Bill Harrison’s death was a homicide. This will be an issue for the jury to determine based on the medical and crime scene evidence. It may also depend on an assessment of the evidence of motive and animus that will be tendered at trial.
[14] While it will be for the jury to determine whether each of the three deaths has been proven to be a homicide, the evidence on this issue is stronger with respect to Caleb and Bridget Harrison’s deaths than it is with respect to Bill Harrison’s death. That is particularly so due to the applicant’s confession. This is one reason why the applicant submits he will be prejudiced if count 3 is not severed from the trial of counts 1 and 2.
III
[15] Pursuant to ss. 589 and 591(1) of the Criminal Code multiple counts charging murder may be joined in a single indictment. Section 591(3) permits the court to order that an accused be tried separately on one or more counts of an indictment “where it is satisfied that the interests of justice so require”.
[16] The leading case on the exercise of the trial judge’s discretion to order severance is R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146. At para. 16 the court held that the interests of justice “encompass the accused’s right to be tried on the evidence admissible against him, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost effective manner”. The court noted that the risk posed by the trial of a multi-count indictment is that evidence admissible on one count may influence the verdict on another count. Obviously, this risk will be reduced in circumstances where the same evidence is admissible in relation to all of the counts or where the test for the admissibility of similar fact evidence will likely be met to exceptionally permit the evidence on one count to be used on the other counts.
[17] At para. 18 of Last the court provided a non-exhaustive list of factors to be considered on an application to sever counts in an indictment:
(a) the general prejudice to the accused;
(b) the factual and legal nexus between the counts;
(c) the complexity of the evidence;
(d) whether the accused intends to testify on one count but not another;
(e) the possibility of inconsistent verdicts;
(f) the desire to avoid a multiplicity of proceedings;
(g) the use of similar fact evidence at trial;
(h) the length of the trial having regard to the evidence to be called;
(i) the length of the trial having regard to the right to be tried within a reasonable time; and
(j) the existence of antagonistic defences as between co-accused persons.
[18] In this case no issues have been raised in relation to inconsistent verdicts or antagonistic defences and I will focus on the other factors. As there is some overlap between the factors I do not propose to segregate my analysis. I will, however, address each of the remaining considerations at some point in the course of my analysis.
IV
[19] It is my view that there is a strong factual and legal nexus between the counts charged in this case. All three deceased persons were members of the same family. They were all found dead in the same home over a period of four years. Bridget and Bill Harrison were found dead about one year apart. The evidence is capable of supporting the conclusion that the bodies were all found in what might be regarded as staged circumstances. The child custody and access dispute that is said to constitute the motive for the alleged killings was ongoing throughout the entire time period covered by the three counts in the indictment.
[20] The Crown intends to lead evidence that Ms. Merritt abducted the children on the same day that Bill Harrison died. The Crown takes the position that should severance be granted the abduction evidence will be called on both trials to assist in establishing motive. While only Ms. Merritt was charged with parental abduction, Christopher Fattore and Ms. Merritt were together throughout the period of the abduction. They were living as a family in Alberta and later Nova Scotia and were trying to stay off the radar. The child abduction charges, to which Melissa Merritt pled guilty, resulted in full custody to Caleb Harrison and his family with very restricted supervised access to Ms. Merritt. The conviction set back the prospects of Ms. Merritt ever getting full or joint custody.
[21] The deaths of Bridget and Caleb Harrison also occurred during the course of, and arguably in temporal relationship to, significant events during various aspects of the ongoing child custody dispute. Bridget Harrison died shortly after it was reported that Melissa Merritt was breaching her bail on the child abduction charges by attending at the Harrison home, leading to Ms. Merritt’s re-arrest and further charges. Caleb Harrison’s death occurred on the day Melissa Merritt was scheduled to return the children to Caleb Harrison following an extended period of summer access. Ms. Merritt’s court application to obtain joint custody of the children was approaching. Arguably, the circumstances were such that Ms. Merritt may not have been successful on that application.
[22] It is anticipated that there will be evidence of various circumstances that demonstrate that there was real animosity between the applicants and members of the Harrison family. Bill Harrison was obviously a member of the opposition faction in relation to the family law proceedings. While Mr. Fattore said in his statement and in some intercepted communications that he had no problem with Bill Harrison, in his confession he said of the Harrison family: “It was an awful family. They treated the kids like shit. And I and Melissa had to live with it every day…” (emphasis added). About an hour later in the interview Mr. Fattore said that Bill was the nicest of the three. While there is more to the statement than this and some other evidence that the applicant thought Bill Harrison was nicer than other members of the family, this evidence suggests the motive the Crown alleges extended to Bill. Taken together these statements are capable of being viewed as tending to tie the motive and animus alleged to all three of the deceased.
[23] These circumstances are closely related from a factual perspective. They are also related from a legal perspective. Evidence of animus and motive will have to be considered by the jury in relation to each of the alleged counts. It is reasonable to anticipate that some of that evidence will have significance for more than one count and some may have direct relevance to all three counts. This is likely to be so even in the absence of similar fact evidence being allowed.
[24] In addition, as I will explain below, it appears likely that the test for the admission of count to count similar fact evidence will be met in this case. This further strengthens the factual and legal nexus between the counts. I will address the similar fact evidence issue in more detail below.
[25] I turn to the issue of complexity. A trial that includes count 3 will be somewhat more complex than a trial that does not include count 3. This arises from the fact that the jury will have to consider conflicting medical evidence bearing on the issue of whether Bill Harrison’s death was a homicide. As I have mentioned, there are differences between the evidence of Dr. Pollanen and Dr. Feltis. The jury will be required to determine whether they are satisfied beyond a reasonable doubt that Bill’s death was a homicide based in part on this conflicting medical evidence. The inclusion of this evidence will make the trial longer but only marginally so.
[26] This issue feeds into the applicant’s submissions regarding prejudice. The applicant has confessed to killing Bridget and Caleb Harrison. The medical evidence that those two deaths were homicides is also stronger than it is in relation to whether Bill’s death was a homicide. In terms of moral prejudice, the applicant submits that there is a real danger the jury will employ impermissible general propensity and bad character reasoning to jump from the applicant’s admission of murdering Bridget and Caleb Harrison to the conclusion that Bill Harrison’s death was a homicide.
[27] In terms of reasoning prejudice, the applicant submits that the fact that much of the medical evidence and some of his utterances in intercepted communications and to the police in relation to Bill’s death are exculpatory, will be lost on the jury in the expansive volume of the other evidence. The applicant raises the concern that there will be so much evidence before the jury in relation to counts 1 and 2 that the jury may become confused and "conflate" issues and evidence when they have to deal with the somewhat different issues that arise in relation to count 3.
[28] Dealing with reasoning prejudice first, it seems to me that the distinctive nature of the issue of whether Bill Harrison’s death was a homicide will make it relatively easy for the jury to segregate in their minds the evidence which bears upon it. As it is readily apparent that it is a separate and distinct issue I am not persuaded its consideration will distract the jurors from the resolution of other important but separate issues. The conflicting medical evidence will be focussed on that readily identifiable and distinct issue.
[29] Reasoning prejudice is more likely to emerge when it comes to considering the evidence of motive and animus. To the extent the consideration of such evidence will make the resolution of that issue more difficult, I have already mentioned that such evidence would likely have to be considered in a severed trial. I am not persuaded that the potential for reasoning prejudice will significantly recede if severance is granted.
[30] While there may be a considerable volume of evidence, the elements of the offences will be spelled out for the jury and the evidence will be related to the issues by the experienced counsel in this case. I, of course, have an obligation to relate the evidence to the issues in my charge. I do not see this as a situation where the jury will be diverted from proper consideration of the real issues in the case if count 3 is not severed. As I mention throughout these reasons, there is an overlap to some of the evidence and some of the evidence will apply to more than one count.
[31] I turn now to the potential for moral prejudice. I see this as a more significant concern due to the issue of whether Bill Harrison’s death was a homicide and the applicant’s confession to murder in relation to counts 1 and 2.
[32] If one looks just at the medical evidence it is easy to see how jurors might be left in a state of reasonable doubt about whether Bill’s death was a homicide. A reasonable doubt on that essential element of the offence would obviously lead to an acquittal on count 3. If the medical evidence were the only evidence to be taken into account on this issue a consideration of prejudice of the nature described might well lead me to grant severance.
[33] However, as briefly discussed above, there is the evidence of animus and motive to be considered. Evidence of animus and/or motive may be relevant to whether a death without an identified medical cause is a homicide and indeed whether it is a murder. Even when a body has not been found, such evidence may prove that a missing person has been murdered by the person exhibiting the animus or motive. Animus or motive may also be relevant to establish an accused’s participation in a killing and the state of mind required for murder. See generally R. v. Cloutier, 1939 CanLII 26 (SCC), [1940] S.C.R. 131, 73 C.C.C. 1; R. v. Lewis, 1979 CanLII 19 (SCC), [1979] 2 S.C.R. 821; R. v. Warner (1994), 1994 CanLII 842 (ON CA), 94 C.C.C. (3d) 540 (Ont. C.A.), at pp. 545-547; R. v. Candir (2009), 2009 ONCA 915, 250 C.C.C. (3d) 139 (Ont. C.A.); R. v. Moo, 2009 ONCA 645, at para. 98; R. v. Griffen, 2009 SCC 28, [2009] 2 S.C.R. 42, at paras. 59-63; R. v. Luciano (2011), 2011 ONCA 89, 267 C.C.C. (3d) 16 (Ont. C.A.); R v. Roncaiolo (2011), 2011 ONCA 378, 271 C.C.C. (3d) 385 (Ont. C.A.); R. v. Boukhalfa, 2017 ONCA 660, at paras. 174-75, 190-91.
[34] The Crown submits that even if count 3 were to be severed the Crown will still seek the admission of such evidence of animus and motive in each resulting trial. This seems to me to be a reasonable position likely to succeed and one which weighs against severance. There appears to be some evidence which demonstrates animus or motive which has a relevance to count 3 as well as to counts 1 and 2 that arises from the unifying feature of the ongoing child custody dispute.
[35] Such evidence could be admissible on more than one count simply on the basis that it is circumstantial evidence relevant to more than one count. Some of that evidence may reveal discreditable conduct, the commission of other crimes or have relevance to the other counts in the indictment. That will be the case here. The child abduction evidence is an example. In such circumstances the evidence will only be admissible if the probative value of the evidence exceeds its prejudicial effect. Even then a limiting instruction will be required: Warner. Particularly due to Mr. Fattore’s statement that the Harrison family was an awful family who all treated the children like shit, I do not think it could be successfully argued that the child abduction evidence is not admissible to aid in establishing a motive for all three counts. No effort has been made to have that evidence excluded.
[36] In summary on this point, while I agree with the applicant’s submission that there is a danger of moral prejudice of the sort described, there are countervailing features in this case which must also be taken into account. The potential for prejudice of the sort raised here is not uncommon in criminal trials and limiting instructions are often sufficient to overcome that potential. This case is factually quite unlike Last, where the countervailing features I have referred to were not present and it was felt that the trial judge placed too much reliance on the efficacy of a limiting instruction in refusing severance.
[37] This brings me to a consideration of counsel’s submissions regarding the use of similar fact evidence. I preface my remarks by reminding myself that care must be taken not to confuse the test for severance with the test for the admissibility of similar fact evidence: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 393, [1998] S.C.J. No. 82, at para. 52. The burden is on the applicant on the severance application but it is on the Crown in relation to meeting the test for the exceptional admission of similar fact evidence. As also stated at para. 52, just because severance is refused does not automatically mean that the jury will be permitted to use the evidence on a count to count basis.
[38] While I must consider admissibility in the context of the severance application I am not deciding it definitively for the purpose of the trial. As the issue relates to count to count and not extrinsic similar fact evidence, the respondent does not wish to deal with the issue fully until the conference on the charge. The respondent submits, however, that it has demonstrated that there is a reasonable prospect that the Crown’s similar fact evidence application will ultimately succeed and points out that this is an impediment to the success of the severance application. The respondent relies on R. v. Waudby, 2011 ONCA 707, at para. 3, and R. v. Carson, [2015] O.J. No. 2528, at para. 29, in support of its position.
[39] In the written material filed in support of this application both sides focused on similar fact evidence as being used only in relation to proof of identity of the killer. The issue as presented concerns whether the jury will be permitted to use the evidence from counts 1 and 2 to prove identity of the killer in the event the jury finds that Bill Harrison’s death was a homicide.
[40] The applicant submits that eliminating from consideration evidence linking the applicant to the offences and restricting the focus to the manner in which the various offences are alleged to have occurred, as must be done according to Arp at para. 49, there is simply not sufficient similarity between the manner in which the alleged offences were committed to justify admissibility pursuant to the test outlined at paras. 45-46 of Arp.
[41] Ms. McCabe-Lokos points to a number of dissimilarities between the three offences alleged in the indictment. Bill Harrison was found slumped over in a bathroom with no determined cause of death. Bridget Harrison was found at the bottom of a flight of stairs with a variety of injuries which differ from the injuries sustained by Bill and Caleb. Caleb was found in his bed with injuries that differed from the injuries sustained by Bill and Bridget. While there is evidence of neck compression in the case of Bridget and Caleb’s deaths, there is no evidence of neck compression in relation to Bill’s death.
[42] In Arp, at para. 45, Cory J. held that where similar fact evidence is adduced to prove identity “there must be a high degree of similarity between the acts for the evidence to be admitted”. He went on to indicate that if there was a striking similarity or signature in relation to the manner in which the acts were committed the evidence would have sufficient probative value on the issue of identity to gain admissibility. I agree with Ms. McCabe-Lokos that we do not have such a signature effect in relation to the counts before the court. However, Cory J. went on at para. 45 to say: “In the same way, a number of significant similarities, taken together, may be such that by their cumulative effect they warrant admission of the evidence.” This, of course, means that the probative value of the evidence outweighs its prejudicial effect.
[43] After careful reflection, and a consideration of the facts of the Arp case itself where both the British Columbia Court of Appeal and the Supreme Court of Canada felt that the test had been met, I have reached the conclusion that it has also been met in this case. In my view, there appear to be a number of significant similarities, which taken together, render it improbable that, should the jury find all three deaths to be culpable homicide, the same killer or killers were not involved in each. I refer to the following similarities:
three members of the same family were murdered in the same home over a span of four years – the relationship between the victims is important;
the home was a family residence not associated with crime;
there were no signs of forced entry on any occasion;
all of the victims suffered some blunt force trauma;
the deceased were home alone at the time they were killed and, of particular note, the children were not in the home;
all three of the victims were found in circumstances where it appeared initially that there was no foul play:
a. Bill Harrison was found in a bathroom with the door locked;
b. Bridget Harrison was found at the foot of a staircase;
c. Caleb Harrison was tucked in his bed with his sleeping mask on;
all of the deceased were involved in an ongoing child custody dispute at the times of their death;
there is arguably some connection between the deaths and aspects of the child custody dispute:
a. Bill Harrison was murdered the day the children were abducted;
b. Bridget Harrison was murdered soon after Melissa Merritt had breached her bail and been re-arrested for attending at the Harrison family home;
c. Caleb Harrison was murdered on the day the children were to be returned to him following a period of extended summer access while an application for joint custody brought by Ms. Merritt was pending.
[44] Although Duncan J. did not refer to all of these similarities in his decision ordering the applicant to stand trial on count 3, he did refer to some of them. At para. 16 of his decision (Unreported, (February 10, 2016), Ontario Court of Justice: Brampton) he said the following about the use of count to count similar fact evidence to prove identity:
In this case three adult members of the same family died in the same home over the span of four years. There is evidence, apart from the similar facts, from which a jury could conclude that each death was a homicide. It is conceded that Fattore was the killer of Caleb. So what are the chances that someone else other than Fattore was responsible for the others? It is objectively improbable that there was a second or different killer for the other two or either of them. Any dissimilarities pale in comparison to these core facts. In my view it would not matter if one victim had been strangled, one knifed and one shot. The improbability of there being two unrelated killers involved renders similar fact use and reasoning compelling and appropriate in this case on the issue of identity.
While it is not admitted for the purpose of the trial that the applicant is the killer of Caleb, Mr. Fattore’s confession to the murders of both Bridget and Caleb Harrison has been ruled admissible.
[45] It seems to me that the significant similarities I have listed are sufficient to render it improbable that, if all three were murdered, there was more than one killer. While there are some dissimilarities between what was observed in the aftermath of the killings, the family relationship between the deceased is a significant unifying similarity that is distinctive. The probative value of this evidence appears to me at this time to outweigh its prejudicial effect.
[46] It could be argued that the connections mentioned above between the deaths and each deceased’s involvement in the family law dispute runs afoul of Cory J.’s indication, at para. 49 of Arp, that similarities must be considered without reference to evidence linking the accused to the similar acts. However, I observe that Cory J. prefaced his remarks by using the words “in general”. I take this as an indication that there may be exceptions in some unusual circumstances. I also note that in R. v. MacCormack, 2009 ONCA 72, 2009 ONCA72, 241 C.C.C. (3d) 516, at para. 45, Watt J.A. held that this was not an invariable rule. As he put it: “To apply a test of whether the objective improbability that an accused’s involvement in the alleged acts is the product of coincidence without any regard to the evidence connecting the accused and the acts seems unduly antiseptic.”
[47] I also refer to the extra-judicial writings of Justice Marc Rosenberg, “Similar Fact Evidence”, Special Lectures of the Law Society of Upper Canada, 2003, at pp. 412-14. There Justice Rosenberg pointed out that in Arp Cory J. thought that in identity cases the improbability of coincidence “lay in the striking similarity between the acts said to have been committed by the same person”. Justice Rosenberg suggested that while that was “a helpful approach for many identity cases” it was not always so. He suggested that in some cases evidence connecting the accused to the victims would be important in determining that the similar fact evidence had probative value on the issue of identity.
[48] While Justice Rosenberg’s extra-judicial writing does not have the force of a judicial decision and obviously does not overtake Arp, I find it persuasive in this case where I have identified evidence of a unifying animus and motive as providing a chain of reasoning on the issue of proof of identity. As previously mentioned, it is accepted that evidence of animus and motive may assist in establishing both that a crime occurred and that the applicant was the killer. This is a chain of reasoning long recognized by the law which is similar to, but independent of, similar fact reasoning. It is similar in the sense that where the evidence tendered to prove animus and motive is tied to other bad acts the test for admissibility is the same as for similar act evidence: the probative value of the evidence must exceed its prejudicial effect. In this case the linking evidence has its own legal basis of recognition as useful to assist in proving identity and it appears that the probative value of that evidence exceeds its prejudicial effect.
[49] On the prejudicial effects side of the ledger, I observe that the chain of reasoning which gives both the similar fact evidence and the evidence of animus and motive probative value can be described. It can be explained to the jury in such a way that the permissible chain of reasoning is distinguishable from the impermissible forms of bad character reasoning which the jury will have to be cautioned not to engage in. As the permissible and impermissible chains of reasoning are distinguishable this increases the likely effectiveness of a limiting instruction. This tends to reduce moral prejudice. It also reduces the prospect of reasoning prejudice.
[50] In addition, this is a situation in which all of the offences charged are of relatively similar degrees of seriousness. This tends to reduce the potential for moral prejudice.
[51] In these circumstances I conclude that the Crown’s application for the admission of count to count similar fact evidence is likely to succeed. I am not deciding that question definitively at this time. The prejudice the applicant alleges does not rise to a level which outweighs probative value on the facts of this case. While this conclusion is not determinative of this application it weighs heavily against severance.
[52] The applicant also seeks severance on the basis that he wishes to testify on count 3 but not on counts 1 and 2. In Last, at para. 26, the court held that the accused’s expression of such an intention “should have both a subjective and an objective component”. The trial judge is not to substitute his or her view for that of the accused but must “satisfy him or herself that the circumstances objectively establish a rationale for testifying on some counts but not others”. The applicant bears a burden to provide the trial judge with information to support the objective determination that “there is substance to his testimonial intention”. The court said such information could describe potential defences or the nature of the applicant’s testimony.
[53] In the written material the applicant states that if count 3 is severed he “may realistically wish to testify in his own defence in that trial”. I have not been provided with any information about what the applicant might say in his testimony. I have not been provided with any specific information about a particular defence. The applicant’s factum says: “It is clear in the case of Bill Harrison, that there are multiple defences available which may be supported by the Applicant’s testimony.” Counsel makes general reference to there being no forensic or pathological evidence of identity, to there being only weak evidence that Bill Harrison’s death was a homicide, to the the evidence of motive in relation to Bill’s death being “less clear”, to there being no confession, to there being no intercepted or electronic evidence and to the possibility of arguing that even if Bill’s death is a homicide the evidence of identity is insufficient. In essence, I am asked to do what Last suggests I should not do, and formulate my own view of what the applicant might say.
[54] In these circumstances I can opine why an accused might either wish to testify or not to testify on count 3. Count 3 could be viewed as a weaker count due to the issue about whether Bill Harrison’s death was a homicide. One can see how an accused might subjectively wish to take the stand and say “I did not do it – I had no issue with Bill Harrison”. On the other hand, the Crown plans to tender Mr. Fattore’s statement at the trial. That video recorded statement contains that defence. Judged objectively, one might conclude that the accused’s defence will be before the court without the risks associated with testifying.
[55] Looking at counts 1 and 2, the applicant says he does not wish to testify on those counts. However, those counts appear to be very strong. The applicant has confessed to both. There is also DNA evidence linking him to Caleb Harrison’s murder. Viewed objectively, one would think that he may be compelled to testify on those counts to explain his confession if he is to have any hope of acquittal. He might be expected to say that he only confessed to try to save Melissa Merritt. While some evidence to that effect may come before the court through the intercepted conversation between the two accused at the Halifax airport after their arrests, that evidence is subject to attack on the basis that the accused suspected that their conversation was being recorded.
[56] The difficulty I face is that the applicant, who bears the burden, has not provided me with any specifics which would assist with my analysis.
[57] Because I can see some objective basis for the expressed intention I take it into account. However, it is difficult to place the weight on it I may have had I been provided with further evidence. I can conceive of circumstances where this factor could take on great significance in terms of severance. In view of the lack of information provided I cannot say that this is such a case.
[58] As held in Last, at para. 27, this is but one factor to be balanced together with others in deciding whether to grant severance. In Last, at paras. 29-30, the court held that although Mr. Last’s intention to testify on one of the two counts he faced was objectively reasonable, because it was likely that he would have to testify on the other count as well, this was not a significant factor in the severance analysis in that case. Similar considerations apply here.
[59] I turn to the other factors described in Last that I have not yet mentioned.
[60] Clearly, the desire to avoid a multiplicity of proceedings is a factor which militates against severance. A number of the same witnesses are involved in the investigation of all three of the alleged offences. If counts 1 and 2 are tried separately some of the evidence related to count 3 will still be called on the trial of counts 1 and 2. For example, the Crown indicates it will still tender the evidence of the child abduction. If there are two trials it seems to me that a significant amount of the evidence will have to be presented twice.
[61] The overall length of proceedings will also be increased by severance. I do not see this as a situation where severance simply has the effect of creating two trials which taken together do not result in lengthier proceedings.
[62] In terms of considerations of trial within a reasonable time, I am unable to accept the applicant’s submission that severance of count 3 will not create significant delay. The current estimate of the time required for the trial before the jury is four to five months. So far counsel have been in error in predicting the length of proceedings. In my view that time estimate will not be significantly shortened by severing count 3 and proceeding immediately with a trial of counts 1 and 2.
[63] That means that the trial on count 3 will have to be rescheduled in this very busy jurisdiction where it is well known that judicial resources and court facilities are always strained. A special jury panel will have to be summoned. Due to publicity concerns an exceptionally large panel will be required as a challenge for cause for publicity will be required. While it is difficult to say when the trial of a severed count 3 might commence, it is reasonable to conclude that it would not be before late spring of 2018 at the earliest. This assumes courtroom space is available. It often is not. The pre-trial motions in this case had to be commenced in Kitchener and continued there for several months due to lack of a courtroom in Brampton. I would not be surprised if a trial could not be scheduled until September 2018. I have not been provided with information about counsel’s availability.
[64] I also observe that I have received no indication that the applicant is prepared to waive his s. 11(b) Charter right to trial within a reasonable time should count 3 be severed.
V
[65] Pulling all of these relevant considerations together I reach the conclusion that the overall balance leads to the dismissal of the application for severance. There is an exceedingly strong factual and legal nexus between the counts. The Crown’s count to count similar fact evidence application seems likely to succeed. The evidence of animus and motive is in many respects common to all counts.
[66] While the trial of all three counts will be somewhat more complex it will not be markedly so. It will be marginally longer than a severed trial and the overall length of two trials will be markedly longer than a single trial. Severance will result in delays for the trial of count 3 that raise concerns about the applicant’s right to, and society’s interest in, a trial within a reasonable time. A multiplicity of proceedings will result in the need for a significant number of witnesses to testify twice.
[67] While the applicant may wish to testify on count 3 and not on count 1 or 2 it is difficult to see how he can advance a defence on counts 1 and 2 without testifying, given his confession and all that is included in it.
[68] I am not persuaded that the interests of justice require severance of the counts in the indictment requested by the applicant. On balance I conclude the interests of justice favour a joint trial. The application is dismissed.
F. Dawson J.
Released: September 6, 2017
CITATION: R. v. Merritt, 2017 ONSC 5302
COURT FILE NO.: CRIMJ(P) 1459/16
DATE: 20170906
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
MELISSA MERRITT and CHRISTOPHER FATTORE
Applicants
RULING No. 13: Application for Severance
F. Dawson J.
Released: September 6, 2017