CITATION: R. v. Batchelor, 2018 ONSC 6186
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
PAUL DAVID BATCHELOR
Applicant
Sabrina Goldfarb, for the Respondent Crown
Oliver Abergel, for the Applicant
HEARD: October 3, 2018
Restriction on Publication
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.
By court order made pursuant to section 539 of the Criminal Code, evidence taken at the preliminary inquiry shall not be published in any document or broadcast or transmitted in any way until the end of the trial.
ruling on severance application
beaudoin j.
1The Applicant is charged with four counts of sexual assault, one count of sexual assault causing bodily harm, and one count of forcible confinement on 4 different complainants. The offences are alleged to have occurred on or about 4 distinct offence dates between June of 2010 and June of 2015. He applies to have his charges severed and heard separately. A summary of the allegations is as follows:
Complainant No. 1: L.M.
2L.M. reported the alleged sexual assault perpetrated by the Applicant after an appeal by the Ottawa Police Service (“OPS”) seeking other potential victims relating to the Applicant.
3L.M. first met the Applicant at school when they were in the same college program. They were on a first name basis and would see each other on a school related basis a few times per week during the school year between 2007 and 2009. L.M. changed school programs and they fell out of touch with each other until they were reintroduced through a mutual friend.
4The Applicant and L.M. continued to see each other socially and in groups. L.M. agreed that she was getting to know the Applicant over multiple outings in consideration of pursuing a relationship with him.
5The alleged sexual assault occurred when L.M. attended at the Applicant’s residence to watch a movie. They exchanged kisses, but this quickly escalated. L.M. told him that she did not want to go any further than kissing that night. She says the Applicant gave her a confused look and then ignored her request to stop and continued touching her breasts underneath her shirt to which she said “no.” She alleges that the Applicant continued to ignore her and put his hands down her pants to which she continued to say “no.” She told the Applicant that she wanted to leave. She alleges that the Applicant then pushed her face-first onto the bed and held her down with his hand on her back. He pulled her pants and underwear down to her knees and forced vaginal intercourse without a condom. She asked if she could leave and the Applicant told her to take a shower first which she did and she then left the apartment.
6After she left, L.M. says that the Defendant sent her text messages, asking if they could see each other again. She replied “no” as the experience with him was very uncomfortable. She alleges that the Applicant told her that it was “just sex” and she was “too uptight.”
7No complaint was made to the police at the time of the alleged sexual assault
Complainant No. 2 L.F.
8L.F. met the Applicant on the online dating site “Plenty of Fish.” After messaging each other for a few days, it was agreed that they would meet. They first met in person on the date of the alleged offence when the Applicant picked up L.F. in his automobile.
9L.F. alleges that, after first taking her to a parking lot at Algonquin College, the Applicant then took her to a nearby park area. He immediately started to kiss her and was being very forceful with her. L.F. says that she repeatedly told him “no.” She says that the Applicant ignored her and continued to kiss her, touched her breasts and took her hand and touched his penis with it. L.F. says that she tried to re-direct him by suggesting that they go somewhere for a drink or to get something to eat. Instead, she alleges that the Applicant drove to a nearby isolated parking lot and parked his car. She says that he continued to kiss her forcefully and that she continued to tell him “no.” She was new to the Ottawa area and was completely unfamiliar with her surroundings. She claims that the Applicant ignored her demands that he stop. She claims he then pulled off his pants and inserted his penis in her vagina. She claims that she was afraid that the Applicant might hurt her and that she felt that she had no choice to go along with the vaginal intercourse. The Applicant then drove her home.
10Shortly after that, L.F. agreed to go on a second date with the Applicant in order to give him a “second chance.” The second date was aborted by L.F. after the Applicant showed up at her residence and she decided she did not like his attitude. She claims that he tried to kiss her again which made it clear to her that he was only interested in having sexual relations.
11L.F. met the Applicant a third time in 2013 when she again interacted with him, unknowingly, on “Plenty of Fish.” She attended his apartment, and as soon as she entered, he began to kiss her forcefully. She claims she told him “no.” The Applicant then showed her is computer animation profile. According to L.F., she did not realize that the Applicant was the same person who had sexually assaulted her even though the Applicant had pictures of himself online.
12She told the Applicant that they had met before and that he had made her feel very uncomfortable and the Applicant laughed it off. L.F. left for the Applicant’s apartment without incident.
13No complaint was made to the police at the time of the alleged assault or in 2013. L.F. came forward with her allegation after an appeal by the OPS seeking other potential victims relating to the Applicant.
Complainant No. 3 C.R.
14C.R. first interacted with the Applicant in 2014 on a different online dating site called “Tinder” in 2014. After a brief online interaction, the parties agreed to meet in person at a bar on Laurier Street. After having a drink, C.R. says that she willingly attended at the Applicant’s residence that was located nearby.
15C.R. alleges that upon entering the Applicant’s apartment, he became sexually aggressive and he tried to unbutton her shirt. C.R. says that she made an excuse to go to the bathroom in an attempt to extricate herself from the situation hoping that the Applicant would stop his behaviour. Upon exiting the bathroom, she alleges that the Applicant continued trying to get under her shirt and remove her pants.
16According to C.R., the interaction ended when she told the Applicant that she wanted to leave. The Applicant’s reaction to being told that she was leaving was “too bad for you.” C.R. left the apartment without further incident.
17No complaint was made to the police in 2014. C.R. also came forward with her allegation after an appeal by the OPS seeking other potential victims in relation to the Applicant.
Complainant No. 4 C.C.
18C.C. met the Applicant on the online dating site “OK Cupid” and they decided to meet in person shortly thereafter. They met for a drink at a bar, and afterwards, C.C. agreed to be driven to the Applicant’s home downtown. C.C. indicated that immediately upon entering the Applicant’s motor vehicle, he started to kiss her and tried to put his hands down her dress.
19After entering the Applicant’s residence, C.C. alleges that the Applicant came up from behind her and immediately began to remove her dress and requested that she perform oral sex on him. C.C. performed oral sex on the Applicant because she felt that she had no choice but to comply with his demands.
20C.C. indicates that the Applicant then threw her onto the bed and had vaginal and anal intercourse with her. She claims that she repeatedly told him to stop, told him that it hurt. In response to her pleadings, she says the Applicant told her to “get used to it” and “relax.” C.C. also alleges that the Applicant bit and slapped her during the alleged assault.
21After the assault, the Applicant drove C.C. home. She reported the incident to a former boyfriend and he took her to the hospital for the purpose of completing a Sexual Assault Kit.
22C.C. said that she sustained injuries as a result of the sexual assault. Her anus was torn, bleeding and very sore. She was unable to undergo the anal exam at the hospital. She had bite marks on her right buttock and her face was red from being slapped. C.C. then reported the incidents to the Ottawa Police Services.
The Legal Framework
23The legal framework is succinctly set out by Paciocco, J. (as he then was) in R. v. Brahaney, 2016 ONCJ 132 at paras. 12 and 13:
12 As a general rule, pursuant to section 591(1) of the Criminal Code, the Crown is entitled to join the counts it wishes in the same indictment or information. However, pursuant to section 591(3) (a) the Crown discretion to do so is subject to review. A judge can sever joined counts, provided the accused person seeking the severance demonstrates, on the balance of probabilities, that “the interests of justice so require.” In ruling on a severance request, the trial judge must balance the interests of the accused to make full answer and defence and to enjoy the right to be tried on admissible evidence, against society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner: R. v. Last 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 16.
13 In R. v. Last, supra, at para. 18, the Court set out a non-exhaustive list of factors to be considered in determining whether to order severance:
Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co-accused persons.
24The Applicant states that he will be prejudiced if these matters are tried together. Despite the fact the trial will be held before a judge without a jury, there exists a real “potential for cross-pollination on credibility assessments”[1] He argues that the trier of fact may be tempted, subconsciously to engage in prohibited propensity reasoning. He relies on R. v. T.W. 2014 ONSC 4531 where the Court held at para. 14:
14 At the same time, however, the absence of a jury is not always a complete answer to the fear of prejudice that an accused may voice when facing a trial on multiple charges. The authorities accept that there is a substantially reduced or lessened risk of prejudice in judge alone trials – they do not conclude that this risk of prejudice is wholly eliminated in all judge alone trials. ….. As the Alberta Court of Appeal stated in R. v. Villeda, 2011 ABCA 85, 269 C.C.C. (3d) 394, at para. 18, in the context of considering the admissibility of similar fact evidence:
While it is true that judges, by virtue of their training and experience, are better able to instruct themselves regarding the dangers of similar fact evidence, the ability to self-instruct is not a panacea. Human nature and its attendant weaknesses and vulnerabilities may, on occasion, intrude upon the most rigorous and conscientious fact-finding. The spectre of moral or reasoning prejudice is always a concern regardless of who is sitting in judgment of the guilt or innocence of an accused.
25According to the Applicant, there is little legal or factual nexus between the charges. The separate allegations involve different complainants and take place months and/or years apart. He says that there is no overlap between civilian witnesses and that any nexus between the counts is absent. He refers to case law that holds that the possibility that a witness may need to testify twice is not a bar to severance.[2]
26The Applicant adds that the evidence is not complex and that allegations are such that it is very likely that he will have to testify with respect to counts 5, 6 and 1. The Applicant maintains that there is no risk of inconsistent verdicts and argues that the distinct difference between the dates, location and sexual acts alleged undermine any similar fact application that could be made by the Crown at trial. He submits that there is a genuine issue of identification with regard to count 3.
27The Applicant acknowledges that all sexual assaults are inherently violent and he concedes the existence of “rape myths”, but he argues that there are distinct differences in the degree of severity of the acts alleged. He relies on the high degree of similarity test referred to in Last at para 34:
…Given that the assessment of the similar fact evidence application can be a difficult task, in many cases such an assessment may be best done once all of the Crown’s evidence has been tendered. However, in this case, the acts complained of did not come close to having the requisite “high degree of similarity” that would have rendered “the likelihood of coincidence objectively improbable…
28The Applicant argues that there is sufficient information on the record to support the objective conclusion that he will likely have to testify as to counts involving L.M. and C.C.
29The Applicant submits that severance would not overly lengthen the proceedings. He waives any section 11(b) rights in the event severance is granted. He concludes by noting that he is the only accused and that there are no antagonistic defences. In summary, the Applicant argues that the balancing of the relevant factors favours severance.
30On behalf of the Crown, Ms. Goldfarb argues that the Crown is not required to prove nexus in a strong or definite manner in order to rebuff a severance application. She submits that the admissibility of similar fact evidence favours the counts being tried together. She notes that the Court only has to consider the viability of such an application at trial. She too cites the Brahaney decision at paras. 22 and 24:
22 It is not the role of a trial judge considering a severance application to decide on the admissibility of similar fact evidence, and I should not be taken to be doing so. Trial judges conducting severance applications are not to resolve the admission of similar fact evidence at the severance application stage for practical reasons having to do with the inadequacy of the evidentiary foundation, and because the accused bears the burden on a severance application, whereas the Crown bears the burden at trial of satisfying the similar fact evidence rule. Accordingly, during a severance motion the trial judge is simply to determine whether a “count-to-count” similar fact evidence application is viable (internal citations omitted)
24 If the trial judge conducting the severance application concludes, then, that the similar fact evidence application is “viable,” making the admissibility of the similar fact evidence “possible,” that judge should resolve the severance application while bearing in mind that even if the charges are severed, the material similar fact evidence relating to the severed charges will be presented at the trial of the remaining counts, in any event.
31The Crown reiterates that the danger that a conviction will be rooted in moral prejudice reasoning is significantly lessened in a judge alone trial. As the trial judge, I have already become aware of these other allegations. Ms. Goldfarb argues that the desire of the Applicant to testify on only some of the counts, while important, is not determinative and that there is insufficient information before the Court to make that assessment.
32If severance were granted, the result would be a multiplicity of proceedings and the Crown asserts its intention to bring a similar fact application relating to all of the other complainants at each trial which would not be in the interests of justice. She cautions against relying on “rape myths” in assessing the similarity of the acts. If the Court were to consider severing the counts, she submits that charges against L.F. could be severed.
The Application of the Legal Principles
Prejudice to the Applicant
33On this issue, I am guided by the comments of the trial judge in R. v. R.C., 2016 ONSC 6593 at para. 19:
19 The Court of Appeal indicated in Thomas, supra, at para. 37, that where the allegations are significantly stronger in some counts than in others, or the acts alleged are substantially more severe, severance may be justified. In addition, in JJD, supra, at para 11, it was suggested that the case would have been an appropriate one for severance had there been an indication that the accused planned to testify in respect of some of the counts but not others. If the counts are all tried together, the Applicant may feel compelled to testify in all of the cases so that he can answer at least one of them. That would effectively undermine his Charter right not to be so compelled: R. v. Dorsey (2012), 2012 ONCA 185, 288 C.C.C. (3d) 62, at paras. 46-48 (Ont CA).
34While not diminishing the violence that is inherent in all sexual assaults and their impact on the victims, the allegations involving C.C. are the most severe and are factually distinctive; they include oral sex, anal and vaginal intercourse, biting, and slapping and injuries. The incident is immediately reported to a friend and later to the police. She attended at the hospital for purposes of completing a sexual assault kit. She was bleeding from her anus. Bite marks are observed on her right buttock and her face was red from being slapped. The severity of these allegations is reflected in the charge of sexual assault causing bodily harm and the charge of forcible confinement.
35I agree that the danger of moral reasoning prejudice can still exist in a judge alone trial. While I have read the statements of the complainants and have read the transcripts from the preliminary inquiry, the effect of reading those materials cannot be equated to the impact of hearing that testimony at trial. There is a danger that the evidence from counts 5 and 6 could intrude upon the fact finding process. The specter of moral or reasoning prejudice remains a concern.
Legal and Factual Nexus
36There is a limited legal and factual nexus between the remaining allegations. They all involve issues of reliability, credibility and consent but they factually distinct and are separated in time.
Complexity of the Evidence
37The Evidence is not complex.
Risk of inconsistent verdicts
38There is little risk of inconsistent verdicts given the different scenarios that are involved.
Similar Fact Evidence
39While there are differences, I am reminded of the Supreme Courts caution in R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33 at para. 60:
…The judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance. At microscopic levels of detail, dissimilarities can always be exaggerated and multiplied. This may result in distortion: Litchfield, supra. At an excessively macroscopic level of generality, on the other hand, the drawing of similarities may be too facile. Where to draw the balance is a matter of judgment….
40The similar fact question need not be determined at this time. At this stage, I accept that I only have to make a determination that a similar fact application could possibly succeed at trial. The Applicant used internet dating applications and/or websites to engage 3 of the 4 complainants to meet with them. The 4th complainant is an acquaintance whom he sets up a meeting with by text. While there are background differences in the relationships, the Applicant is alleged to have begun forceful behaviour almost immediately when alone with each of the complainants. He appears to be indifferent to the consequences of his actions. There is pattern of behaviour that is present here that makes a similar fact application viable.
Whether the Applicant intends to testify on one count
41I repeat my conclusions with regard to prejudice to the Applicant on counts 5 and 6. With regard to counts 1 through 4, I again turn to the Last decision for guidance where the Court held at paras. 25-27:
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.
27 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. An accused’s stated and objectively justifiable intention to testify on some but not all counts is not necessarily determinative of a severance application. It can be counterbalanced by other circumstances that the judge finds may prevent the accused from testifying, or be outweighed by factors that demonstrate that the interests of justice require a joint trial.
42The material before me suggests that “the Applicant may or may not choose to testify. It states that it appears very likely that the Applicant will choose to testify on two of the counts and it seems equally likely that the Applicant will not elect to testify on two of them.” Curiously, Mr. Abergel and Ms. Goldfarb have identified different counts that would invite a response on the part of the Applicant. Looking at these matters objectively, all of these charges will be determined on the issue of consent and the Applicant will likely have to join issue with those complainants on the credibility and reliability of their evidence. The objective basis for his need to testify is much stronger on counts 5 and 6.
Multiplicity of Proceedings
43I conclude that a multiplicity of proceedings is not warranted nor is it in the interests of justice. I adopt the observations of the Court in R. v. Ticknovich, 2003 ABQB 597 at para. 42 where the trial judge said:
Speaking generally: it is well established that the "interests of justice" is not defined by reference to the potential interests or advantages of the Defendant alone as there is a balancing even in jurisprudence related to s. 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) as to the interests of the state and the interests of a Defendant.
[44] By severing the last two counts, the number of proceedings is reduced to two and society’s interest in avoiding any delay will be minimized. The Applicant has waived his s. 11 (b) Charter rights in that regard.
Conclusion
I conclude that balancing the risk of prejudice to the Applicant on a single trial on all 6 charges against the public’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner requires that counts 4 and 5, namely the charges involving C.C., be severed.
Mr. Justice Robert N. Beaudoin
Released: October 17, 2018
CITATION: R. v. Batchelor, 2018 ONSC 6186
COURT FILE NO.: 16-RA19544
DATE: 20181017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
PAUL DAVID BATCHELOR
Applicant
ruling on severance application
Beaudoin J.
Released: Ocotber 17, 2018
2R. v. H.(D.), [2015] O.J. No. 379 at para. 24