Court File and Parties

COURT FILE NO.: CR-18-0034-00 DATE: 2019 May 07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – ALEX CAMERON Applicant

COUNSEL: L. Burgess, for the Crown M. Snider, for the Applicant

HEARD: April 26, 2019

TAUSENDFREUND, J.

Application for severance

Overview

[1] The Applicant stands charged on a five count indictment that he, at the City of Belleville in the East Region:

Count 1 – Between August 1, 2015 and April 30, 2017 commit a sexual assault on A. C. contrary to section 271 of the Criminal Code;

Count 2 – Between August 1, 2015 and April 30, 2017 did for a sexual purpose touch A.C. a person under the age of 16 directly with a part of his body, to wit his fingers, contrary to section 151 of the Criminal Code;

Count 3 – Between August 1, 2013 and September 30, 2015 did commit a sexual assault on C. H., contrary to section 271 of the Criminal Code;

Count 4 – On or about May 11, 2018 did have in his possession child pornography, to wit digital images and videos, contrary to section 163.1(4) of the Criminal Code; and

Count 5 – Between January 1, 2018 and April 25, 2018 did have in his possession child pornography to wit digital images and video, contrary to section 163.1(4) of the Criminal Code.

[2] The Applicant has elected to be tried by a Judge alone.

[3] The Applicant states that he is charged with two sexual offences involving two independent complainants and two counts of possession of child pornography that are unrelated to the other counts in the indictment, namely counts 1, 2 and 3.

[4] The Applicant has indicated that he may testify on some counts and not on others. In that event, he might be prejudiced, states the Applicant. However, aside from the Applicant’s testimonial intention that he might wish to testify on some counts but not on others, the Applicant has provided little, if any, evidence to objectively support his intention in that regard. That would include any prejudice that he might face, were the requested severance not granted.

[5] The Applicant requests that counts 1 and 2 be tried together but separately from all other counts, that count 3 be tried separately from all other counts and that counts 4 and 5 be tried together but separately from all other counts.

Facts

[6] C.H., the complainant in count 3, was 13-14 years of age in the summer of 2013 when the Applicant moved in with her family. The connection was the Applicant’s friendship with C.H.’s older brother. The Applicant had told this complainant’s mother, T.H., that he was about to be evicted from his apartment. She agreed to have him live with them for a period of time that she anticipated to be weeks, or at most a few months, before he was able to find other accommodations. Ultimately, he resided with this family for about two years. The Applicant at all times slept in the family living room.

[7] This complainant alleges that the Applicant on occasion had approached her from behind and touched her “boobs” and her “butt” while she was doing the dishes. C.H. did not tell her parents of these incidents, as she expected the rent money the Applicant provided was important to her family. However, eventually she told her mother who then confronted the Applicant and warned him not to touch C.H. again. He did not. The Applicant remained with that family for another year.

[8] In August 2015, the Applicant moved to the home of R.B. and his partner, M. who is the biological mother of A.C., the complainant in counts 1 and 2 of the indictment. A.C. lived part time with her mother M. and her step-father R.B. and part-time with her biological father and her step-mother, H.S..

[9] The Applicant had met R.B. at work. Computers were their common interest. The Applicant began to spend time at the B. home. Eventually, the Applicant was invited to move into the B. residence where he resided from August 1, 2015 to April 2017. Again, the living room became his bedroom.

[10] Following his move from the B. residence, he continued to periodically visit that family. On one of these occasions, M. found her daughter A.C in her bedroom lying on top of the Applicant. As an explanation, the Applicant stated that they had been throwing clothes around and had fallen in the process, with A.C. ending up lying on top of him. A.C. denied that the Applicant had inappropriately touched her.

[11] This incident continued to trouble M.. She discussed the matter with A.C.’s step-mother, H.S. and asked that she question A.C. about the incident. H.S. did so and A.C. acknowledged to her that the Applicant had sexually touched her. The police were contacted. In the interview by the police, A.C. allowed that she had been touched sexually by the Applicant.

[12] M. and T.H. were acquainted. At the time that the Applicant was moving into the B. household, T.H. had warned M. that the Applicant had touched C.H. inappropriately when he lived with them and for that reason to keep an eye on him.

[13] Following A.C.’s disclosure, M. contacted T.H.. M. was crying. T.H. asked “He did it to her too, didn’t he?”. That led to the eventual arrest of the Applicant.

[14] At the time of his arrest and on the strength of a search warrant, the police located digital images of child pornography on the Applicant’s computer. This is the subject of counts 4 and 5 of the indictment.

Analysis

[15] S.591(1) of the Criminal Code provides that the Crown has the power to join any number of counts for any number of offences in the same indictment.

[16] An accused has the constitutional right to apply for severance. However, the onus is on the Applicant to establish, on a balance of probabilities, that the interests of justice require an order for severance: See R. v Arp, [1998] 3 S.C.R. 339 at para. 52.

[17] The Supreme Court of Canada provided a non-exhaustive list of factors to be considered when deciding whether the interests of justice require an order for severance:

1. The factual and legal nexus between the counts;
2. The complexity of the evidence;
3. Whether the accused intends to testify on one count but not on another;
4. The possibility of inconsistent verdicts;
5. The desire to avoid a multiplicity of proceedings;
6. The length of the trial, having regard to the evidence to be called;
7. The potential prejudice to the accused with respect to the right to be tried within a reasonable time;
8. The use of similar fact evidence at the trial;
9. General prejudice to the accused.

See R v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146 at para. 18

[18] The Applicant stated that he might wish to testify on some counts, but not on others.

[19] As already noted, the Applicant has the burden to provide information that satisfies a Justice hearing the application that “objectively” there is substance to the Applicant’s testimonial intention. In fact, the Applicant’s:

“expression in this regard should have both a subjective and an objective component”. However…the trial Judge [or the Judge hearing the application, as the case may be] 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 [or the Justice hearing the application] 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 [applicant] or the nature of his testimony…

However, the accused [applicant] is not bound by his stated intention; he remains free to control his defence, as the case unfolds, in a manner he deems appropriate”: see R. v. Last, 2009 SCC 45 at para. 26

[20] On this Application, there is no evidence which could be described as an objective reason for the Applicant’s intent to testify on some counts, but not on others. In any event, even if the Applicant had raised such an “objectively justifiable intention, it is but one factor to be balanced with all of the others. It would not necessarily be determinative of a severance application”: see R. v. Last ibid. at para 27.

[21] The Crown has the stated intention to bring a similar fact application with respect to counts 1, 2 and 3, whether these counts are tried together or separately.

[22] The Ontario Court of Appeal in R. v. L.B. at para. 35 stated:

“ In cases of sexual offences, where identification is not an issue, it may assist to define the inference that is sought to be drawn in terms of the accused having committed the act as alleged by the complainant. The evidence of discreditable conduct is sought to be introduced to support the credibility of the particular allegation, and not just the fact that the accused in some way acted improperly with the complainant. It therefore becomes important to focus on the details of the specific allegation for which support is sought. R.v.B. (C.R.), [1990] 1 S.C.R. 717 at pp. 738-39 is authority for the proposition that evidence of the accused’s discreditable conduct on other occasions can be supportive of the credibility of an allegation:

In cases such as the present, which pit the word of the child alleged to have been sexually assaulted against the word of the accused, similar fact evidence may be useful on the central issue of credibility.”

[23] If the Crown proceeded with its stated intention to bring a “similar fact” application and assuming it were granted, the trier of fact must always remind himself or herself of the dangers of moral and propensity reasoning. Such a danger is far less likely to occur with a “judge alone” trial rather than with a jury properly instructed. As Watt J.A. noted in R. v. MacCormack, 2009 ONCA 72 at para.69: “In large measure, the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi-count indictment reduce significantly, if not to the vanishing point, the virus of reasoning prejudice”.

[24] The evidence of the connection between these two families and the manner in which the complaints came to the attention of the police clearly require evidence from both complainants and their family members.

[25] A factual nexus and the similarities the evidence the Crown would likely lead have a clear and obvious connection. The Applicant was a friend of a family member in each case. That is how he came to board with each family. There was an apparent level of trust extended to the Applicant by the family. Both complainants likely had an age appropriate vulnerability.

[26] The determination of the applicability of cross-count similar fact evidence is to be made only at the end of the Crown’s case. At this stage of the proceeding, it is only necessary that the Crown’s expected similar fact application be viable: see R. v. Minister, 2012 ONSC 1040 at para. 46 and R. v. I.B., 2013 ONSC 2209 at para. 26. I find that such an application, if brought by the Crown, would likely be viable.

[27] The onus on this severance application is on the Applicant to establish, on a balance of probabilities, that the interests of justice would require a severance. I am not satisfied that the Applicant has met this onus. Accordingly, this application is dismissed.

Tausendfreund, J. Released: May 7, 2019

COURT FILE NO.: CR-18-0034-00 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ALEX CAMERON REASONS FOR JUDGMENT TAUSENDFREUND, J. Released: May 7, 2019