Court File and Parties

COURT FILE NO.: 16 RA 19457 DATE: 20180801 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent Crown – and – NAOUM ABI-SAMRA Applicant

Counsel: Jessica Carvell, for the Respondent Crown Neil Weinstein, for the Applicant

HEARD: In writing

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this application as the complainant may not be published, broadcasted or transmitted in any manner. This application complies with this restriction so that it can be published.

By court order made pursuant to section 539 of the Criminal Code, evidence taken at the preliminary inquiry shall not be published in any document or broadcast or transmitted in any way until the end of the trial.

Severance Application

BEAUDOIN J.

[1] The Applicant, Naoum Abi-Samra, seeks an Order pursuant to section 591(3)(a) of the Criminal Code that he be tried on count one of the Indictment dated December 07, 2017 separately and apart from counts two through seven. The parties have agreed to argue this motion in writing, relying upon the same evidentiary basis as the Application by the Respondent Crown to admit similar fact evidence.

[2] The Applicant stands charged with four counts of sexual assault and three counts of sexual interference. The Applicant was employed as a mathematics teacher at a High School in Barrhaven. Count one involves a fellow teacher (J.M.) and the offence allegedly occurred in the fall of 2009 at a different school. In counts two through to seven, the complainants are students and the offences allegedly occurred in 2014 and 2016. The following is a summary of what each of the four complainants reported to the police.

[3] J.M. was a new math teacher where the Applicant taught in the fall of 2009. The Applicant was the Math Department Head. On October 30, 2009, J.M. was wearing a Halloween costume at school. The Applicant expressed that he liked her costume and hugged her. During the hug, she felt both of his hands touch her buttocks. She backed away and he left. On November 16, 2009, J.M. hugged the accused to thank him for doing her a favour. During the hug, she felt the accused use both hands to squeeze her buttocks firmly. She felt uncomfortable and left. The Applicant then allegedly made inappropriate comments to her in French. The matter was reported to the school board at the time and dealt with through mediation. She reported it to police in 2016 when she saw a media release about the most recent charges.

[4] K.M. was 15 years old and in grade 10 when the Applicant taught her math (2016). In January 2016, he offered to help her with her school work as she was behind in her studies – they arranged to meet before class or over the lunch hour. During the extra help sessions, the Applicant touched her inappropriately, including rubbing her arm, touching her face, grabbing her by the waist and rubbing her thigh. The Applicant also made romantic comments including calling her an angel, telling her he loved her and telling her he wanted to kiss her but that “he wasn’t allowed.” This made her uncomfortable, but she was afraid to say anything.

[5] K.H. was 15 years old and in grade 10 when the Applicant taught her math (2013-2014). During class, the Applicant touched her inappropriately on two occasions. On the first occasion, the accused rubbed her back and touched her buttocks while she was asking him for help with a math question. On the second occasion, the Applicant was touching her hair while she worked on a question, and his hand moved down and lightly squeezed her breast. The Applicant also made romantic comments to her in French, such as “je t’aime (I love you) and t’es belle (you’re beautiful). She noticed that the accused gave “special treatment” to the girls in the class.

[6] S.L. was 15 and in grade 10 when the Applicant taught her math (2016). A few weeks into the semester, the Applicant began touching her back, touching her face, putting his arm around her and hugging her. She felt uncomfortable, but did not say anything as he was doing it with other female students too. On several occasions when she was at the Applicant’s desk getting help with a question, the Applicant put his hand on her thigh when she got up to leave. On one occasion, the Applicant put his arm around her and touched the side of her breast.

The Legal Framework

[7] Subsection 591(3) of the Criminal Code states “the court may, where it is satisfied that the interests of justice so require, order…that the accused or defendant be tried separately on one or more of the counts.”

[8] The Applicant has the burden to show, on a balance of probabilities, that a single trial on all counts in the indictment would risk prejudice to him and that this risk of prejudice outweighs the public interest in a single trial.

[9] The Supreme Court of Canada has identified a number of principles and factors to be considered by the trial judge in a severance application, most recently in the unanimous decision in R. v. Last, 2009 SCC 45, 3 S.C.R. 146 where the court held at para. 16:

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.

[10] In Last, the Supreme Court identified a non-exhaustive list of particular factors that should be considered by the trial judge on a severance application. They include:

a. The general prejudice to the accused, b. The legal and factual 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 potential prejudice to the accused with respect to the right to be tried within a reasonable time, j. The existence of antagonistic defences as between co-accused persons.

[11] Where the Respondent Crown intends to bring a similar fact application as it does in this case, the Supreme Court, again, gave further guidance in R. v. Arp, [1998] 3 S.C.R. 339 at para. 52:

However, where the similar acts are alleged as part of a multi‑count indictment, the consideration of the admissibility of similar fact evidence will have to be taken into account in deciding whether the counts should be severed. Nevertheless, the trial judge should be careful not to confuse admissibility with severance. A motion to sever under s. 591(3)(a) of the Code must be brought by the accused, who bears the burden of establishing on a balance of probabilities that the interests of justice require an order for severance. Yet the burden of demonstrating that similar fact evidence should be admitted must be borne by the Crown…..

The Applicant’s Position

Factual nexus

[12] The Applicant submits that the factual nexus between these two sets of counts is tenuous and that the only substantial similarities that exist in this case are that the Applicant has allegedly committed the same offence and that he committed those offences while working as a teacher.

[13] The Applicant argues that the allegations in count one are separated by the allegations in counts two through seven by a significant amount of time. Count one relates to an allegation that occurred in 2009. Counts two and three deal with allegations which occurred in 2013, four years later. Counts four through seven relate to allegations which occurred in 2016, seven years after the allegation in count one.

[14] The Applicant adds that the nature of the relationship between the complainant and himself in count one is drastically different from the other counts. In count one, the complainant is a fellow teacher. In counts two through seven, the Applicant is in a position of power over his under-aged student complainants.

[15] The Applicant further notes that these offences are alleged to have occurred at different schools. In count one, the allegation is that he sexually assaulted the complainant in a private office and without the presence of other witnesses. In counts two through seven, the complainants allege that they were sexually assaulted in a classroom and or in view of other witnesses.

Prejudice to the Applicant

[16] The Applicant argues that when multiple counts are tried together there is always a risk that the Applicant could be prejudiced on each group of counts by the evidence to be adduced on the others which is not admissible on all. He concedes that since he has elected to have a trial by judge alone, the risk of prohibited reasoning prejudice is limited in his case.

The Applicant intends to testify to one count and not on another

[17] The Applicant relies on this passage in Last:

25 In assessing the accused’s testimonial intention on a severance application the underlying concern is for the accused’s ability to control his defence, and, more specifically, his right to decide whether or not to testify with respect to each of the counts unimpaired by inappropriate constraints.

26 Both the Crown and the Defence submit that the accused’s intention should be objectively justifiable. This requirement is, indeed, a threshold. The accused's expression should have both a subjective and an objective component. However, while a formulaic expression of a subjective intention is not sufficient in and of itself to discharge the accused’s burden to have the counts severed, the trial judge should not substitute his or her own view for that of the accused and determine that the accused should testify or not. Rather, 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. However, the accused is not bound by his stated intention; he remains free to control his defence, as the case unfolds, in a manner he deems appropriate.

[18] Due to the factual differences between count one and the rest of the counts, the Applicant has stated an intention to testify at his trial in relation to count one, but without prejudice to his decision to testify or not in relation to the other counts on the indictment. This decision is dependent on the evidence adduced by the Respondent Crown at trial.

[19] In this case, the complainant in count one and the Applicant engaged in a workplace mediation in 2009 as a result of allegations that the Applicant had behaved inappropriately towards the complainant, his co-worker. It is expected by the Applicant that there will be a need for him to address this evidence and provide explanatory evidence of his own on this issue.

[20] The Applicant does not expect the need to testify to fully defend the remaining allegations.

[21] The Applicant relies on his right to silence which was expanded upon in R. v. Hebert, [1990] 2 S.C.R. 151 (SCC) which connects that right to the privilege against self-incrimination. In R. v. Dorsey 2012 ONCA 185, 288 C.C.C. (3d) 62, the Ontario Court of Appeal held that a defendant’s ability to control his own defence in the context of a severance application, as it pertains to choosing to testify to one count and not on another, is an extension of that Charter protected right.

[22] The Applicant submits that the fact that he wishes to testify against one count and to exercise his right to silence on the other counts weighs heavily in favour of severance.

Similar Fact Evidence

[23] The Respondent Crown is bringing a similar fact evidence application in this case which is opposed by the Applicant. An application for severance also requires an in-tandem analysis of any similar fact evidence which the Respondent Crown is seeking to have admitted. Where evidence may be admissible as similar fact evidence from one count to another, severance of those counts becomes more unlikely.

[24] While these two applications are inter-related, the Applicant notes that the test for severance is not the same that applies to similar fact evidence. In seeking to adduce similar fact evidence, the Respondent Crown must establish that the probative value of the evidence is not outweighed by the prejudicial effect. In an application for severance, on the other hand, the burden is on the Defence to establish on a balance of probabilities that the interests of justice require severance.

Multiplicity of proceedings

[25] In an application for severing counts, the Court must also consider the efficiency of running the trials separately.

[26] In considering this factor, Justice Michel Proulx of the Quebec Court of Appeal in R. v. Cross and Lazore (1996), 112 C.C.C. (3d) 410 (Q.C. C.A.), stated the following at p. 419:

Obviously, the Courts must also consider the administrative inconvenience and the additional costs created by having separate trials. However, it is understood that these last considerations do not take precedence over an accused’s interest or his constitutional rights. (W.L. Translation)

[27] If the counts are severed, the Applicant maintains that there will be no duplication of the witnesses’ evidence. The witnesses in count one will only provide evidence as it relates to count one. They will not be required to testify again at a trial for the evidence of counts two through seven. Nor will the witnesses from counts two through seven have any evidence to proffer for allegations in count one.

[28] He submits that a separate trial for count one will not add any significant court time for the hearing of evidence, and that severance of these counts will not require the complainants to have to go through the grueling process of testifying twice in relation to allegations of sexual assault. The Applicant was arrested on count one in November, 2016, approximately six months after he was arrested for counts two through to seven. For this reason, he submits that his concurrent right to have his trial in a reasonable time will not be infringed.

The Position of the Respondent Crown

Prejudice to the Applicant

[29] The Respondent Crown submits that the general prejudice to the Applicant in having all counts heard together in a single trial is negligible. It is well-recognized that the dangers of moral and reasoning prejudice are significantly reduced in judge alone trials. Since the counts alleged involve relatively similar touching, the risk of moral prejudice is significantly reduced.

Legal and factual nexus between counts

[30] The Respondent Crown submits that all of the charges on the Indictment relate to the alleged touching of people while the Applicant was a math teacher for the Catholic School Board. The incidents involve three students and one teacher. The Respondent Crown maintains that the factual nexus is present even though the charges are separated in time and occur at different schools. According to the Respondent Crown, the Applicant used his position of authority as a teacher (or in J.M.’s case, mathematics department head) to engage in what could be perceived as innocuous touching which had an underlying sexual element.

[31] Further, the Respondent Crown argues that the counts do not raise different legal issues as was the case in Last, where the accused’s defence was consent with respect to one count, and identification on the other. In the present case, the primary issue at trial for all counts on the Indictment will be the nature of the touching engaged in, and the Applicant’s intention in engaging in the touching.

[32] For this reason, the Respondent Crown argues that the evidence of J.M. on count one will have particular importance at the trial relating to the student complainants. Because the Applicant was reported and engaged in mediation with respect to his actions with J.M. in 2009, he would have become aware of what touching was inappropriate and serious enough to justify the school’s intervention in the matter. This will be relevant to the assessment of the Applicant’s mens rea on the sexual assault and sexual interference counts relating to the student complainants.

[33] The Respondent Crown submits, first on the sexual assault counts, that this evidence will be relevant to the issue of whether the Applicant knew or was reckless as to the complainants’ lack of consent to the touching. After his interaction with J.M., the Respondent Crown submits that the Applicant knew, or ought to have known, that touching a teenage student in a similar manner would therefore be even more inappropriate.

[34] Second, the Respondent Crown maintains that on the sexual interference counts, this evidence will be relevant to the issue of whether the Applicant had a sexual purpose when he touched the complainants. If the Applicant knew that the touching was potentially unwanted or inappropriate, then the Respondent Crown argues that he had no reason, other than a sexual one, to engage in the touching.

[35] The Respondent Crown concedes that the assessment of the sexual purpose will also be based on the nature of the area that was touched and the context in which it occurred but argues that this evidence will also be relevant in that it tends to rebut the possible defence of honest mistake or innocent association.

[36] The Respondent Crown concludes that the differences highlighted by the Applicant are not differences that would outweigh the otherwise strong factual and legal nexus between counts.

Intention to testify on one count but not another

[37] The Respondent Crown argues that an Applicant’s intention to testify on some, but not all, counts, is not necessarily determinative of a severance application and argues that the Applicant’s expressed intention to testify on count one (“without prejudice to his decision to testify or not”) in relation to the other counts, is vague and does not permit the court to engage in a real analysis of the testimonial intention. The Respondent Crown states that the Applicant has failed to meet his burden of providing the trial judge with sufficient information to assess whether there is an objective rationale to his stated intention.

The desire to avoid a multiplicity of proceedings

[38] In this case, the Respondent Crown intends to call the evidence of J.M. at her trial, and also at the trial relating to the student complainants for the reasons set out above. Thus, if severance were granted, J.M. would have to testify twice and be cross-examined about the same subject matter twice. This would result in a multiplicity of proceedings, in that the same evidence would have to be heard twice by two triers of fact. This factor weighs against severance.

The use of similar fact evidence at trial

[39] The Respondent Crown filed a Notice of Application to admit similar fact evidence (both extrinsic and count-to-count) on April 10, 2018. The extrinsic similar fact application is being argued prior to the scheduled trial dates. The count-to-count similar fact application will be properly argued at the close of the Respondent Crown’s case.

[40] That application, if it is made, will involve many of the same factors considered in the present severance application, and the Respondent Crown cautions me not to conflate admissibility with severance. If this Court dismisses the present severance application, it will remain to be determined whether the Respondent Crown will be permitted to use similar fact evidence at trial. The possibility that the Respondent Crown will bring a similar fact evidence application at trial does not shift the burden from the Applicant to the Respondent Crown in regard to the present severance application.

[41] The Respondent Crown submits that the circumstances surrounding the charges are sufficiently similar to support a similar fact evidence application and that there is a truth-seeking interest in trying these counts together. In a sexual assault case, the similarity analysis must take into consideration the context of the evidence being considered. In this regard, the Respondent Crown relies on the comments of Charron JJ.A. in R. v. L.B. (1997), O.R. (3d) 35 (C.A.) at para. 37:

It is also important to consider which similarities are truly compelling. In cases of sexual assault, the similarities or dissimilarities between the sexual acts that are alleged are, of course, relevant, but often not as compelling as the circumstances surrounding the incidents. ….

Prejudice to the Applicant’s right to be tried within a reasonable time

[42] The trial in this matter is set for 10 days between September 24 and October 5, 2018. This is 29 months after the Applicant was charged in relation to the student complainants. If the matters were severed, new trial dates in relation to the charge against Ms. J.M. will need to be obtained and it is possible that new trial dates within the 30 month timeline set out in Jordan, would be breached.

Balancing the factors

[43] The Respondent Crown submits that in light of all the circumstances and factors considered above, the balance overwhelmingly favours a joint trial.

Conclusion

Prejudice to the Applicant

[44] Since the Applicant has elected to have a trial by judge alone, the risk of prohibited reasoning prejudice is limited in this case. The danger of reasoning prejudice is not eliminated entirely.

The legal and factual nexus

[45] I am satisfied that the only factual nexus between the counts in this case is that the Applicant has allegedly committed the same offence while working as a teacher.

[46] There are significant differences; particularly with regard to count one where the complainant, J.M., is an adult, a fellow teacher and the incident takes place in a private office. There was hug by the Applicant on one occasion and a hug by the complainant on the second occasion. Counts two through seven involve incidents that take place four or seven years later; they involve students; the relationship is different; the allegations are different; and they take place in a classroom.

[47] Most significantly, J.M. reported the incidents to the school principal and there was a mediation of that complaint. The Respondent Crown will be relying on the results of that mediation in the assessment the Applicant’s mens rea on the sexual assault and sexual interference counts relating to the student complainants. The Respondent Crown will argue that if the Applicant knew that the touching was potentially unwanted or inappropriate, then he would have had no reason other than a sexual one to engage in the touching.

[48] I am satisfied that the evidence arising from that the mediation provides a sufficient objective basis to support the Applicant’s expressed intention to testify as to count one and not necessarily on the others. From the transcript from the examination for discovery of J.M., it appears that the Applicant never admitted that incident took place as described by J.M. An admission was apparently made by the school principal on his behalf. Given that evidence and the inferences that the Respondent Crown will seek to draw from that earlier incident, it is fairly probable to expect that the Applicant will have to testify as to what he may have agreed to at that time and his reasons for doing so. This factor weighs heavily in favour of severance.

The possibility of inconsistent verdicts

[49] This is not a case where there is a risk of inconsistent verdicts if severance is granted nor is there any overlap in witness testimony or other evidence.

The desire to avoid a multiplicity of proceedings

[50] The time, trouble and expense to the community of two trials will be minimal and the Applicant’s right to testify and to remain silent must be safeguarded in order to ensure his right to a fair trial on all counts.

The use of similar fact evidence at trial

[51] Having regard to the limited preliminary evaluation permitted, I am not satisfied that the circumstances surrounding the charges are sufficiently similar to support the Respondent Crown’s similar fact evidence application.

The Applicant’s right to be tried within a reasonable time

[52] These charges were laid on November 21, 2016. The 30 month time limit does not arise until April 21, 2019. There is sufficient time to schedule a short trial involving the allegations against J.M.

Balancing the factors

[53] Even though this is a judge alone trial; severance is required in the interests of justice. The significant risk of prejudice to the Applicant outweighs any benefits to the administration of justice in trying the counts together.

Mr. Justice Robert N. Beaudoin Released: August 1, 2018