Court File and Parties

COURT FILE NO.: CR-1005/18 DATE: 2019-04-23 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – A.D. Applicant

Counsel: Kevin Ludgate, for the Respondent David Braumberger, for the Applicant

HEARD: April 5, 2019

DECISION ON APPLICATION

R.D. GORDON j.

Overview

[1] The accused is charged with two counts of sexual assault and is scheduled to be tried by a judge and jury. He has applied to sever the counts.

Background Facts

[2] The accused and SG were husband and wife. SG alleges that between June 1, 2012 and December 31, 2015 she was sexually assaulted by the accused on multiple occasions. She describes being on heavy medication for back pain and indicating to the accused that she did not want to have sex because she was in pain and half asleep. She says he would not stop and would have sexual intercourse with her, often aggressively and forcefully, while holding her down.

[3] The accused and MM were in a relationship between August 9, 2015 and November 15, 2016. The accused is alleged to have sexually assaulted her regularly during their relationship by touching her sexually while she was asleep. She says he would often try to initiate sex with her and would be quite persistent. When she did not agree to sex and would go to sleep, she would awaken sore, with her bedclothes undone or in a different position than when she went to sleep. On some occasions she would awake to find ejaculate on her.

[4] The accused wrote two letters to MM in which he admits to touching her “private spots” while she was asleep. In one of the letters he says: “I need a lot of help I really need to get back on the sex reducing pill or needle so I can control myself”.

[5] When arrested for the sexual assault alleged by MM, he gave a video statement to the police in which he is asked about the allegations made by MM and acknowledges his actions by nodding his head. In that statement he admits that he needs help and would like counselling and a sex-reducing pill. The Crown intends to introduce these letters and statement at trial. There is a voir dire scheduled on the issue of the voluntariness of the statement given to police.

[6] SG says the accused admitted to her that he sexually molested MM.

[7] MM says that she overheard the accused say that he was scared of SG “charging him with rape and that he was too rough with her or too forceful with her.”

The Applicable Law

[8] In the case of R. v. Last, 2009 SCC 45, [2009] S.C.J. No. 45, the Supreme Court of Canada set out the framework for consideration of applications to sever counts in an indictment.

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 Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed when deciding whether to sever or not. 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.

18 The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a particular case, avoiding an injustice. 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 the other; 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: R. v. E. (L)., 1994 1785 (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.), at p. 238; R. v. Cross (1996), 1996 5992 (QC CA), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419; R. v. Cuthbert (1996), 1996 8341 (BC CA), 106 C.C.C. (3d) 28 (B.C.C.A.), at para. 9, aff’d 1997 397 (SCC), [1997] 1 S.C.R. 8 (sub nom. R. v. C. (D.A.)).

Analysis

General Prejudice to the Accused

[9] When a jury hears evidence with respect to two unrelated counts in an indictment there is a risk that it will be influenced by evidence admissible on one count when reaching its decision on the other. There is a significant risk of such prejudice in this case. Neither the letters authored by the accused in which he makes admissions relative to MM nor the police statement he makes with regard to MM would be admissible against SG. However, at a joint trial the jury would hear that evidence. The jury would hear the accused’s words that he cannot control his sexual urges and that he needs a sex-reducing pill. In my view, even with a strong warning, a jury would find it difficult to disassociate itself from the very strong evidence while considering the count involving SG.

[10] Defence counsel also expressed a concern with reasoning prejudice. Reasoning prejudice is said to arise when the number and nature of unrelated counts in an indictment may confuse or distract the jury, thereby deflecting them from their task of deciding each charge carefully and separately. In this case, although both complainants describe many many incidents of sexual assault by the accused, he is charged with only one count with respect to each complainant. Each complainant will testify generally as to the conduct of the accused over the relevant period of time and there is unlikely to be significant distraction or confusion.

Legal and Factual Nexus between the Counts

[11] If the facts of one count have a strong connection to the facts of another count, such that the evidence on one count is likely to have significant overlap with second, there is more reason for a joint trial. This is because, regardless of similar fact, much of the evidence would need to be called twice if two trials are held.

[12] In this case there is no strong factual nexus between the two counts and absent a successful similar fact application, no need to lead evidence relating to one count to understand or determine the truthfulness of the other count.

[13] As the Crown points out, each complainant has some evidence to give relative to both counts. However that evidence (alleged admissions made by the accused) would not be admissible on both counts. That is, the accused’s admission to SG that he sexually molested MM would not be admissible in the trial of SG. Nor would the admission to MM that he was scared that SG might charge him with sexual assault be admissible in the trial of MM. That there may be common witnesses to the trials does not, in my view, necessarily import a factual nexus between the counts.

[14] Absent the similar fact issue, there is no legal nexus between the counts.

Complexity of the Evidence

[15] The evidence with respect to these offences is not particularly complex.

Intention of the Accused to Testify

[16] The accused has not committed to testify with respect to either count.

The Risk of Inconsistent Verdicts

[17] There is no risk of inconsistent verdicts if the two counts are heard together.

Desire to Avoid Multiplicity of Proceedings

[18] Severance, if granted, would result in two jury trials instead of one. Regardless of the outcome of the Crown’s similar fact evidence, each complainant would give evidence at both trials because of the admissions alleged to have been made to them. There is a third witness who is a friend to both complainants who would have to attend trial twice. There is clearly some benefit to having a single trial with a single attendance by all witnesses.

Use of Similar Fact Evidence at Trial

[19] The Crown intends to bring a similar fact application. If successful and the trials were held together the evidence would only need to be given on one occasion by each complainant. If there were to be two trials, each complainant would be required to give their evidence at each trial.

[20] I realize that the Crown need only establish a viable similar fact application at this time, however it strikes me as unlikely the application will be granted.

[21] Absent collusion, when two or more complainants independently describe events relating to their sexual assault, and those events are so similar that it is unlikely both complainants would have concocted their evidence, their evidence may be admissible at the trial of the other as similar fact evidence. The evidence is probative because the force of the similarities defy coincidence or other innocent explanation (R. v. Handy, 2002 SCC 56).

[22] Although there are some similarities in the evidence of the two complainants, there are significant and important differences. One complainant says the accused would not take no for an answer and would regularly force intercourse against her will. The other says that the accused was persistent but would take no for an answer and after she fell asleep would touch her sexually. One says the accused was aggressive and forceful. The other says he was mild tempered. These significant differences lessen considerably the probative value of the evidence, making it likely to be outweighed by its prejudicial effect.

Length of Trial

[23] The trial of the accused on both counts is scheduled to take nine days. If severed, the amount of time required to conduct each trial is likely to be five days. Accordingly, there will not be a great deal more trial time required if the counts are severed.

Trial within a Reasonable Time

[24] This is a serious concern in this case. The scheduled trial is already over the 30 month ceiling prescribed by Jordan. Although a thorough analysis may reveal defence delay that would serve to extend the ceiling somewhat, there can be little doubt that any significant delay may result in real jeopardy to the right of the accused to be tried within a reasonable time. However, both trials could be conducted separately within the time slot that has now been set aside.

Conclusion

[25] Although there are efficiencies to a single trial, there is a significant risk that strong probative evidence on the count involving MM would be improperly used by a jury in determining his guilt or innocence on the count involving SG.

[26] There is enough time to conduct both trials separately at the sittings currently scheduled for November 12, 2019. The Crown is prepared to proceed at that time. Defence counsel indicated his expectation that both trials could proceed then as well. In these circumstances, the delay likely to result from severance is significantly mitigated.

[27] The application is granted and the counts severed.

The Honourable Mr. Justice R.D. Gordon

Released: April 23, 2019