COURT FILE NO.: CRIMJ(P) 714/17

DATE: 2018 05 11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Veronica Puls, for the Crown

Respondent

• and –

FRANCIS ANTOINE

Ronald Chu, for the Applicant accused

Applicant

HEARD: March 28, 2018

D. E. Harris

SEVERANCE RULING

INTRODUCTION

[1] Two women say that the applicant coerced them to sell sexual services to men and then helped himself to the proceeds. The Crown has joined both sets of allegations together and wants both women to testify against the applicant in the same trial

[2] The accused applicant Antoine believes a joint trial would be unfair and applies to sever the two sets of allegations, saying that he would be prejudiced if both woman testify against him in one trial. There should be two separate trials.

[3] In my view, the public interest must prevail over the potential prejudice to the accused in this case. There should be a joint trial.

[4] A review of the pertinent jurisprudence reveals that the central questions governing severance are the factual and legal nexus between the two sets of allegations and, similarly, the viability of a similar fact application using one complainant’s allegations on the other.

[5] I have concluded that these two main factors lean in favour of a joint trial. The legitimate evidentiary value of the two sets of allegations together is greater than the prejudice which could potentially be produced. The other severance factors do not materially alter the inclination towards a joint trial.

A GENERAL OVERVIEW OF THE LAW REGARDING SEVERANCE

[6] The power to join and sever counts is found in s. 591 of the Criminal Code, R.S.C. 1985, c. C-46:

591. (1) [Joinder of counts] Subject to section 589, any number of counts for any number of offences may be joined in the same indictment, but the counts shall be distinguished in the manner shown in Form 4.

(3) [Severance of accused and counts] The court may, where it is satisfied that the interests of justice so require, order

(a) that the accused or defendant be tried separately on one or more of the counts.

(Emphasis Added)

[7] Understanding the law with respect to severance of counts must start with the leading case of R. v. Last 2009 SCC 45 [2009] 3 S.C.R. 146. As can be seen from the words of Justice Deschamps, the interests of justice often dictate a joint trial:

16 The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in the interests of justice, as per s. 591(3) of the Code. 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 obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.

17 … the weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial. It is important to recall that the interests of justice often call for a joint trial. Litchfield, where the Crown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example. Severance can impair not only efficiency but the truth-seeking function of the trial.

[8] The non-exhaustive list of factors which ought to be considered on the “interests of justice” question were stated at paragraph 18 of Last:

1. general prejudice to the accused;
2. the legal and factual nexus between the counts;
3. the complexity of the evidence;
4. whether the accused wishes to testify on some counts but not others;
5. the possibility of inconsistent verdicts;
6. the desire to avoid a multiplicity of proceedings;
7. the use of similar fact evidence at trial;
8. the length of the trial;
9. potential prejudice to the accused with respect to the right to be tried within a reasonable time;and
10. the existence of antagonistic defences between co-accused.

[9] The burden is on the applicant to demonstrate that the interests of justice require severance: Last at para. 33 and R. v. Carson, [2015] O.J. No. 2528 (Ont. S.C.J.) at para. 41. The applicant accused argues three main points:

i. There is an insufficient nexus between the two sets of allegations to justify a joint trial. The two allegations cannot constitute similar act evidence one on the other.

ii. The accused intends to testify with respect to the K. allegations but not the F. allegations. Of course, without severance, the accused will not be able to choose and will have to make an all or nothing decision whether to testify or not.

iii. Overall, there is substantial prejudice which will be produced in a joint trial. The interests of justice compel severance.

THE TWO SETS OF ALLEGATIONS

[10] A summary of the counts and evidence with respect to the two complainants is necessary in order to understand the background for this application.

a. THE COMPLAINANT F.

[11] The complainant F. will testify to acts which are charged in six separate counts in the indictment: Human trafficking (Section 279.01 of the Criminal Code: exercise control over movement for the purpose of exploitation), procuring (Section 286.3(1): procuring or exercising control over movement in order to provide sexual services for consideration), advertising sexual services for consideration (Section 286.4), receiving a benefit from human trafficking (Section 279.02) assault (Section 266) and sexual assault (Section 271). The indictment with respect to the offences against F. specifies an offence period of 14 days in February, 2017.

[12] F. met the applicant through “Ray” whom she had known since she was 14 years old. He got her a job stripping at an establishment in Ottawa. There was sexual activity between them and Ray would pay with drugs, either heroin or cocaine.

[13] Ray asked F. whether she wanted to start dancing for his friend “Blue.” Blue turned out to be the applicant. F. felt like she had to say yes. Ray drove Blue and F. to the Stardust Hotel and the applicant paid for a room. The applicant took F.’s cell phone, bank card and identification. F. had never worked as a prostitute before. The applicant got on top of her in the room and sexually assaulted her. He took pictures of her to advertise her sexual services on the Backpage sexual services website. The ad said that she was 20 years old and “anything goes.”

[14] F. made $600 the first day and was told to put it in a pizza box for the applicant to pick up after each call. F. was able to escape eventually and called several people, including her grandmother. F. gave a statement to the police and identified the applicant in a photo lineup.

[15] It seems that the applicant was not immediately arrested. About two weeks later, he picked up F. and drove her to the Toronto area. They drove in his Lexus. F. was made to perform sexual acts for money with men. Again she was able to call family members, this time from a hotel in Mississauga. She gave another statement to the police.

[16] F. was tired after working 2 days straight and the applicant would give F. cocaine to stay awake. F. believed that if she tried to leave, the applicant would assault her. The applicant would hide cocaine in the room and told F. that if she did not see any clients, he would not tell her where it was.

[17] She was told to put the money earned in a drawer. He would take it from there. She said that she had turned over approximately $3000 to the applicant over the time she was with him. She spent 2 or 3 days in the Mississauga hotel room which again was registered in the applicant’s name.

b. THE COMPLAINANT K.

[18] The charges with respect to K., took place over a 4 to 5 month period ending in December 2015. There were four counts: human trafficking (Section 279.01 of the Criminal Code: i.e. exercise control over movement for the purpose of exploitation), procuring (Section 286.3(1): procuring or exercising control over movement in order to provide sexual services for consideration), advertising sexual services for consideration (Section 286.4), and receiving a benefit from human trafficking (Section 279.02).

[19] The applicant’s charges with respect to F. and K. match up except that there are additional assault and sexual assault allegations in reference to F.

[20] K. told the police that she had been working in the sex trade in Sudbury since she was 16 years old. She became pregnant and stopped for a period of time. When her son was about a year old, she starting getting into drugs. A friend said she was working for a pimp in Toronto and so K. went with the friend to Toronto.

[21] K. worked for the applicant in the Toronto area. She was in a condo near Square One Shopping Centre in Mississauga. The applicant posted pictures he took of K. on the Backpages website. K. starting taking calls and giving all the money to the applicant. He took her bank card and identification. K. worked 24 hours a day, 7 days a week and was exhausted.

[22] K. would often work for the applicant out of hotels in the Mississauga area. She also worked in Ottawa, London, Hamilton and Toronto.

[23] The applicant gave K. an oxycodone a day and she became addicted to the drug. The applicant drove K. back to Sudbury to seek medical attention. He had made her stick a cosmetic brush inside her during her period so she could still have sex with clients. K. developed an infection. After two days in Sudbury, taking medication for the infection, the applicant drove her back to Toronto and she was required to continue providing sexual services to men.

[24] K. would earn between $1000 to $3000 per day for the applicant. She worked for him from August to December of 2015. She would not be allowed to go anywhere unless it was a doctor’s appointment. The applicant posted ads of K. for sexual services and he took the pictures. He would make all the dates for her with the clients.

[25] K. put the money from the clients in a drawer in the kitchen and then later gave it to the applicant. She identified a picture of the applicant and told the police that she only knew him as “Blue” and that he goes by Andrew Mac on Facebook. Complainant F. had said the same thing.

WHY WERE THE COUNTS IN LAST SEVERED?

[26] Severance often rises or falls on the relationship between the allegations sought to be severed. In Last, the two allegations were committed in very different circumstances and raised different legal issues. There was an incongruity in the two allegations. Severance was required to preserve the fair trial right of the accused.

[27] An examination of the facts in Last is helpful. The two allegations against Last were both committed in London, Ontario about one month apart. In the first, Last’s friend testified that while in his residence, he pulled out a gun and then raped her repeatedly. She escaped when he fell asleep.

[28] The defence to this allegation was consent.

[29] The second allegation was that the other complainant, a first-time acquaintance of Last’s, said that when he was in her apartment one night, he choked her into unconsciousness. When she came to, she had been anally and vaginally injured by some kind of object. She also had bruises elsewhere on her body.

[30] The defence raised to this allegation was identification. It was argued that the assailant was not Last but some other, unidentified man.

[31] The Crown at trial renounced any intention to use the two incidents as similar act evidence, the one to the other. Justice Deschamps found that the nexus between the allegations of the two complainants was weak. The defences to each allegation were different. One allegation did not assist in understanding the other. The similarity was insufficient to constitute similar fact evidence. The improbable likelihood of coincidence which drives similar act evidence did not exist: Last at paras. 32-34.

[32] In this scenario, the prejudice likely to be created was devastating to the fair trial of the accused. On the first allegation, the accused seemed to admit the sexual activity, but said that it was with the complainant’s consent. On the other allegation, the sexual activity was denied, the issue being identification of the perpetrator.

[33] Putting these two allegations together, the jury would inevitably use the admitted sexual activity to spill over and predetermine the issue of whether the accused was the perpetrator of the sexual assault in which identification was the sole issue. Conversely, the obvious lack of consent evident in the second incident would seep into the first allegation and compromise the determination of the consent issue.

[34] The damage from admission of this evidence with respect to the two complainants would be intolerable moral prejudice—tainting the accused as a person of bad character—and reasoning prejudice—the accused did it once and therefore is likely to have done it again. The severe injuries to the second complainant only made matters worse: Last at paras. 36-40.

[35] Credibility “cross-pollination” as it was termed and the bolstering of credibility as identified in paragraph 36 in Last are virtually inevitable in joining two separate allegations. The critical problem in Last was the power of the prohibited propensity reasoning inference to establish bad character and the comparatively weak probative value of the evidence towards a live issue. As I explain below, this problem does not exist in this case.

IS THERE A FACTUAL AND LEGAL NEXUS BETWEEN THE ALLEGATIONS?

[36] There is a factual and legal nexus between the allegations in this case. Factually the allegations bear some similarity to each other. The applicant is said to have kept both women under his control, coerced them to provide sexual services to men and then seized the earnings for himself. He advertised the sexual services of the two complainants on the internet. In both cases, he supplied the complainant with illicit drugs.

[37] A legal nexus is also present. The legal description of the alleged criminal acts as translated into counts of the indictment are virtually the same with respect to both complainants. With respect to both, the applicant is charged with human trafficking, accepting a benefit from human trafficking, procuring and advertising sexual services. With respect to F., there are additional charges of sexual assault and assault. But that does not detract from the similarity of the counts with respect to the two complainants.

[38] Looking to the analysis ahead, the question of nexus is akin to similar fact admissibility. Justice Binnie said in the leading similar fact case of R. v. Handy 2002 SCC 56, [2002] 2 S.C.R. 908:

76 The principal driver of probative value in a case such as this is the connectedness (or nexus) that is established between the similar fact evidence and the offences alleged …

[39] The general issues and potential defences which naturally seem to arise from the allegations have a unity to them. This is not a case like Last in which there was an incongruity between the two allegations.

IS THERE IS A VIABLE SIMILAR FACT APPLICATION?

[40] A similar fact application by the Crown is proposed. The authorities overwhelming support the proposition that the appropriate question to ask on a severance application before trial is not whether a similar fact application would be successful but rather whether it is “viable”: R. v. Wilson, 2010 ONSC 1057, [2010] O.J. No. 730 (Ont. S.C.J.) at para 57; R. v. Minister, 2012 ONSC 1040, [2012] O.J. No. 741 (Ont. S.C.J.) at para 46; R. v. B. (I.), [2013] O.J. No. 1615 (Ont. S.C.J.) at para 26; R. v. Carson at paras 37-42, R. v. Blacklaws (2012), 2012 BCCA 217, 285 C.C.C. (3d) 132 (B.C. C.A.), aff’d by the S.C.C. 2013 SCC 8 (S.C.C.), R. v. Brahaney 2016 ONCJ 132, [2016] O.J. No. 1294 at paras. 21-24.

[41] The Crown has met this standard. A similar fact application has a reasonable prospect of success.

[42] Handy commands the trial judge to ascertain the live issues in the case in order to determine the probative value of evidence tendered as similar fact evidence: Handy at paras. 72-74.

[43] Resolving a pre-trial severance application often requires an effort of judicial projection beyond what is required for a typical similar fact application. In this instance, counsel were not able to pinpoint the trial issues in this case with any great specificity. The highest it was put was Crown counsel’s statement that the issue will be whether exploitation as defined under Section 278.04(1) of the Code has been proven. I take that to mean that, put more broadly, the issue will be whether coercion as required by the various offences charged was used against the two complainants. Association between the complainants and the accused will probably not be a significant issue.

[44] Seeing the issues from this perspective, each complainant’s evidence may well be admissible on the other. The main argument against this, from the probative value side at least, is that there is nothing of special uniqueness or similarity to the two complainant’s allegations. This, in my view, somewhat misconstrues the nature of similar fact evidence.

[45] Justice Binnie takes care to emphasize in Handy that proof of general disposition creates nothing but prohibited bad character inferences (paragraphs 72, 91-92). A key demarcation is between the general and the specific, Justice Binnie writing that cogency increases as the fact similarity moves towards the specific end of the spectrum (paragraph 87).

[46] Where the issue is identification of the perpetrator of what is indisputably a crime, traditionally the degree of similarity must be so highly unique or distinctive as to constitute virtually a signature: paragraphs 76-77. The degree of similarity transmutes with the nature of the live issue upon which the evidence is said to be probative. Justice Binnie at paragraph 78 approved of this statement of principle from Justice Grange of the Ontario Court of Appeal in R. v. Carpenter, 1982 CanLII 3308 (ON CA), 31 C.R. (3d) 261, 142 D.L.R. (3d) 237, 1 C.C.C. (3d) 149:

The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence.

[47] In the situation in this case, one would be hard pressed to find that there is a distinct poignancy to the similarities in the complainants’ evidence. The similarity is of a quite general kind. There is the initial force involved, the plying with drugs, and the stipulation that the money be put in an agreed upon place for the applicant to later take. There is the sexual advertising on Backpages.

[48] These features are not uncommon in these type of allegations. Notwithstanding the common nature of these similarities, there is enough to generate substantial probative value here. The situation bears some resemblance to an example given by Justice Binnie in Handy,

80 … in a case where the issue is the animus of the accused towards the deceased, a prior incident of the accused stabbing the victim may be admissible even though the victim was ultimately shot — the accused says accidentally (Rosenberg, supra, at p. 8). The acts could be said to be dissimilar but the inference on the “issue in question” would nonetheless be compelling.

[49] Applying his analysis to the evidence in Handy, Justice Binnie said,

127 It should be repeated that the search for similarities is a question of degree (Boardman, supra, at p. 442, per Lord Wilberforce). Sexual activity may not show much diversity or distinctiveness. Not every dissimilarity is fatal, but for the reasons already mentioned, substantial dissimilarities may dilute probative strength and, by compounding the confusion and distraction, aggravate the prejudice.

[50] The way I would put the similarities in this case is that although not striking, they show a pattern of exploiting women for personal gain. The allegations reflect a specific disposition. The dissimilarities are largely insignificant. This is unlike Handy in which the context between the allegations was radically different: one being a dysfunctional long-term marriage and the other being a one night stand.

[51] Counsel for the applicant raised a host of dissimilarities which, in my view, fail to demonstrate meaningful legal significance. The allegations were of shorter duration with respect to F. than with K but this is not a fundamental difference. Also, the geographical differences raised by the defence are only a superficial aspect of the evidence.

[52] I would note that there is no allegation here of collusion between the two complainants which could weigh against the similar fact application. In the end, I would refer to R. v. Litchfield 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, [1993] S.C.J. No. 127 in which Justice Iacobucci for the Supreme Court held that a physician’s alleged abuse of one female patient was admissible with respect to others who were also complaining. The dissimilarities were insufficient to counteract probative value. It was held:

45… the evidence was not tendered solely to show that the respondent was a person of bad character or of a disposition likely to commit the alleged offences. Rather, the evidence provided information highly relevant to understanding the context in which the alleged offences occurred and shed light on the nature of the respondent’s relationship with his patients, particularly the standard of medical treatment he provided. … The evidence going to the severed counts, if accepted by a jury, would also tend to show a distinct pattern of behaviour engaged in by the respondent. While the probative value of one complainant’s evidence with respect to other complainants’ allegations is somewhat less than that described above, and the prejudicial effect higher, I would nonetheless find that the probative value outweighs the prejudicial effect.

IS THERE AN “OBJECTIVELY JUSTIFIABLE” REASON FOR THE APPLICANT TO TESTIFY WITH RESPECT TO ONE COMPLAINANT’S ALLEGATIONS BUT NOT THE OTHERS?

[53] Despite the nexus between the counts and the viability of a similar fact application, if there is a powerful reason for the applicant to testify on one set of allegations but not the other, this could conceivably tip the balance towards severance.

[54] However, I do not believe that there is a substantial reason to differentiate between the two complainants’ allegations in this case. Both allegations stand on similar footing, vis a vis the applicant’s reasons to testify.

[55] Justice Deschamps in Last considers the issue of an accused who wishes to testify on one set of allegations but not on another. A judge must be satisfied that this intention is “objectively justifiable”:

26 … the trial judge must simply satisfy him- or herself that the circumstances objectively establish a rationale for testifying on some counts but not others. The burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention. The information could consist of the type of potential defences open to the accused or the nature of his testimony: Cross, at p. 421…

[56] The defence to the allegations here is not clear. Originally, in his factum, the applicant argued that identification was an issue with respect to complainant F.’s allegations but not with respect to K’s allegations. However, at the oral hearing, counsel said that identification would not be an issue with respect to F. if severance was ordered.

[57] I deduce from the full record that there is no real identification issue with respect to either complainant’s allegations. The allegations are that the applicant spent a significant amount of time with both complainants: two weeks with F. and several months with K. This alone appears to foreclose an identity issue. Furthermore, there is evidence with respect to each complainant which leaves little room to argue mistaken identification.

[58] F. picked the applicant out of a photo line-up. There was corroborative evidence the applicant registered at a hotel on the first day F. said he forced her to provide sexual services. Both F. and K. knew the applicant by the same two aliases.

[59] K. identified a picture of the applicant. Both complainants communicated with the applicant using the same phone number that he gave them.

[60] Counsel also argued that because there was a statement made by the applicant to the police with respect to F. but not K., this was a rational reason for the different approach to the two allegations. But the statement is largely exculpatory although it acknowledges association with F. It may be of assistance to the Crown in several ways, including to cross-examine the accused. But I do not see it as a make or break element.

[61] I am not convinced that there is an objectively justifiable basis for the applicant testifying with respect to K. but not in the case of F.: see the analysis in R. v. Brahaney at paras. 31-40. In any case, Justice Deschamps said at paragraph 27 of Last,

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.

[62] In this case, I do not see the provisional intention to testify as being a substantial factor on the question of severance.

CONCLUSION

[63] The application to sever counts is dismissed.

D.E HARRIS J.

Released: May 11, 2018

COURT FILE NO.: CRIMJ(P) 714/17

DATE: 2018 05 11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

RESPONDENT

• and –

FRANCIS ANTOINE

APPLICANT

REASONS FOR JUDGMENT

D.E HARRIS J.

Released: May 11, 2018