COURT FILE NO.: CR-18-1363 DATE: 2019 05 13 CORRECTING DATE: 2019 07 11

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN C. Lynch, for the Crown

• and -

WAQAR ALI L. Daviau, for Waqar Ali

HEARD: April 26, 2019 Dennison J.

CORRECTION NOTICE

REASONS FOR DECISION RELEASED MAY 13, 2019

July 11, 2019: Corrections made to paras. 21 and 22 correcting the year 2016 to read 2018.

Paragraph 21 of the Reasons for Decision released on May 13, 2019 is corrected to read:

On June 18, 2018, the applicant was arrested on the Peel charges.

Paragraph 22 of the Reasons for Decision released on May 13, 2019 is corrected to read:

On June 28, 2018, a confirmation hearing was heard on the Toronto charges. On July 16, 2018, the Crown laid a new information in Peel Region that contained the Toronto and the Peel charges. The applicant did not consent to the filing of the new information. The trial date for the Toronto charges was vacated, and the Crown withdrew the Toronto information on July 24, 2018.

ORIGINAL REASONS FOR DECISION NOW CORRECTED Dennison J.

Overview

[1] The applicant, Mr. Ali, seeks an order to quash the indictment as a nullity on the basis that there was an improper “joinder” of charges. The applicant also argues that the charges should be stayed as an abuse of process.

[2] Originally, there was an information that contained sexual assault charges that allegedly occurred in Toronto on June 12, 2016 (“the Toronto charges”). The Crown withdrew that information and filed a new information in Peel Region that included the Toronto sexual assault charges and added sexual assault charges that allegedly occurred in Peel on February 28, 2016. The applicant submits that because he did not consent to the joining of the charges and the Crown did not bring an application to join the charges, the new information and subsequent indictment is a nullity, or the actions of the Crown amount to an abuse of process justifying a stay of the charges.

[3] In the alternative, the applicant seeks an order to sever the Toronto and Peel charges pursuant to s. 591(3) of the Criminal Code, 1985, R.S.C., c. C-46.

The Toronto Charges

[4] It is alleged that in the early morning hours of June 12, 2016, the applicant was working as an Uber driver. He came upon the complainant and her friend, who were speaking with a taxi driver outside 407 Palmerston Ave, Toronto. They had just left a nightclub on King Street. The complainant was extremely intoxicated. The friend and the taxi driver were trying to get the complainant out of the taxi when the applicant pulled his car over and offered to assist.

[5] The taxi left and the applicant agreed to drive the complainant home.

[6] The applicant and the complainant were observed on video surveillance in a parking lot of a car rental agency at 5:36 a.m. The video shows the applicant’s car drive in and out of the parking lot. The complainant appears to be seated on the floor of the front passenger side of the car. The applicant is seen exiting the car and appears to be speaking to the complainant.

[7] The applicant was driving a black Nissan Altima, licence plate BYWT896. The vehicle was registered to Mohammad Riaz of 52 Wildercroft Ave, Brampton.

[8] At approximately 7:00 a.m. the next morning, a passer-by discovered the complainant wearing her bodysuit and underwear but no shorts. The police were alerted.

[9] The complainant was not able to recall what happened after she left the nightclub. The complainant reported that she felt that she had been sexually assaulted, as she had scrapes on her knees, pain in her pelvic area, and vaginal pain.

[10] DNA from the complainant’s left breast was found to have DNA from the complainant and two other individuals, one of whom was male. The applicant was excluded as a contributor. DNA from the complainant’s right breast was found to have DNA from the complainant and two other individuals, one of whom was male. The applicant could not be excluded as the source of that DNA.

[11] The applicant was charged on June 14, 2016, with sexual assault and assault causing bodily harm.

Peel Charges

[12] It is also alleged that on February 28, 2016, the Peel complainant was approached by the applicant outside of a nightclub in the entertainment district in Toronto after her friends left her. She had no cell phone. The applicant offered to drive her home. The complainant, who was intoxicated, alleges that she started to pass out in the passenger seat and woke up to the applicant putting his hand up her shirt and touching her breast and vaginal area. The applicant had his penis out and was touching himself.

[13] The complainant did not recall arriving at her residence but awoke the next morning naked from the waist down. She was also missing $30 from her wallet. She reported the incident to police.

[14] Police obtained video surveillance from the complainant’s residence, which showed a silver/grey Dodge Caravan in the complainant’s driveway. The car was there from 6:13 a.m. until 6:49 a.m. The video does not show the occupants of the car. The licence plate of the vehicle cannot be seen on the video.

[15] DNA was found on the complainant’s breast, but it was too small of an amount to test at the time.

[16] On February 8, 2017, police asked the applicant for a buccal swab, which he refused to provide.

[17] On January 29, 2018, police obtained Uber records for the applicant pursuant to a Production Order. These records showed that the applicant was working on the morning of February 28, 2016. He was operating a silver Dodge Grand Caravan bearing licence plate BDNT394, and GPS information showed that he was operating in the Toronto area; however, the device was powered off from 3:08 a.m. until 9:09 a.m. This vehicle was also registered to Mohammad Riaz.

[18] Police obtained a cast-off DNA sample from the applicant on March 29, 2018. The applicant could not be excluded as a contributor to the mixture of the swab taken from the complainant’s left breast. The DNA results are estimated to be 48,000 times more likely if they originate from the complainant, the applicant, and two unknown individuals than if they originated from the complainant and three unknown individuals.

[19] On June 18, 2018, the applicant was charged with sexual assault and one count of theft.

Procedural History

[20] The applicant was charged with the Toronto charges on June 14, 2016. The Crown elected to proceed summarily. The applicant’s trial for the Toronto charges was originally set for January 2018. At the request of the applicant’s counsel, those dates were vacated and new trial dates were set for August 1, 2, 3, and 7, 2018, in Toronto.

[21] On June 18, 2018, the applicant was arrested on the Peel charges.

[22] On June 28, 2018, a confirmation hearing was heard on the Toronto charges. On July 16, 2018, the Crown laid a new information in Peel Region that contained the Toronto and the Peel charges. The applicant did not consent to the filing of the new information. The trial date for the Toronto charges was vacated, and the Crown withdrew the Toronto information on July 24, 2018.

[23] A preliminary inquiry was held on the new information on December 10, 11, and 12, 2018, in Peel Region. The applicant was committed for trial on the Toronto and Peel charges. The Crown filed an indictment containing both sets of charges.

[24] On April 17, 2019, the applicant re-elected to be tried by a judge alone. The trial is set for two weeks in Peel Region commencing on June 3, 2019.

[25] The applicant seeks to have the indictment quashed as a nullity or to have the charges stayed as an abuse of process. In the alternative, the applicant seeks to have the Toronto and Peel charges severed in the indictment pursuant to s. 591(3) of the Criminal Code.

Issue #1: Is the Indictment a Nullity?

[26] The applicant submits that the indictment is a nullity, as weeks before trial, the Crown laid a new information that “joined” the Toronto and Peel charges. The applicant submits that without the consent of the applicant, this should not have occurred. The Crown should have brought an application to join the charges so the trial judge could determine if it was in the interests of justice to have the charges heard together. The applicant submits that because this did not happen, the information and resulting indictment is a nullity. The applicant also seeks a stay of the proceedings on this basis, although this was not the focus of oral submissions.

[27] In the alternative, the applicant submits that if the indictment is not quashed, fairness dictates that the onus be reversed at the severance application as a result of the Crown’s conduct.

[28] I do not agree with the applicant’s submission that because the Crown did not bring a joinder application to file a new information that contained charges originating from Toronto and Peel, the information and the subsequent indictment is a nullity.

[29] The applicant’s reliance on R. v. Clunas, [1992] 1 S.C.R. 595, in support of her argument is misplaced. In that case, the defence consented to have one trial heard on two informations. On appeal, the Supreme Court of Canada found that the trial judge did not have jurisdiction to have a trial on two informations, even with the defence’s consent. There was no provision that permitted this in the Criminal Code. It is in this context that the Court held, at p. 610,

To conclude this portion of the judgment, I would say that when joinder of offences, or of accuseds for that matter, is being considered, the court should seek the consent of both the accused and the prosecution. If consent is withheld, the reasons should be explored. Whether the accused consents or not, joinder should only occur when, in the opinion of the court, it is in the interests of justice and the offences or accuseds could initially have been jointly charged.

[30] Clunas and the other cases relied on by the applicant in support of her argument all involve situations where the Crown requested that one trial be held on two separate indictments. In some instances, separate preliminary inquiries had taken place. In others, a preliminary inquiry took place on one set of charges and then a direct indictment was issued that included both the charges where committal had been ordered as well as new charges: see R. v. Gyles (2003), 176 C.C.C. (3d) 71 (Ont. S.C.), at para. 11; R. v. Meyn, 2001 BCSC 217; and R. v. Freake, 214 Nfld. & P.E.I.R. 21, 642 A.P.R. 21 (Sup. Ct. (Trial Div.)).

[31] The applicant has framed her argument as a “joinder” of two informations, but that is not what occurred in this case. The Crown did not try to have a trial based on two informations or to file an indictment arising from two separate preliminary inquiries. The Crown filed one information that related to the same accused based on similar allegations so that the charges could be heard together. The filing of the new information was done before the preliminary inquiry or trial was heard.

[32] The applicant has not pointed to any cases where the Crown was required to bring an application to join or add charges where it wished to file a new information that contained charges from two cities prior to the commencement of a trial to support her argument.

[33] There was no legal impediment with respect to how the Crown proceeded in this case that would make the information a nullity. First, it is not improper for the Crown to withdraw an information, where the Crown had proceeded summarily and lay a new information proceeding by way of indictment, absent a finding of an abuse of process. The Supreme Court of Canada considered the issue this R. v. Karpinski, [1957] S.C.R. 343. In that case, the Crown elected to proceed summarily on the charge of failing to remain at the scene of an accident. The accused plead not guilty. Counsel for the accused immediately argued that the prosecution was barred under s. 693(2) of the Criminal Code, as the information was laid six months after the commission of the offence. The Crown withdrew the information and laid a new information proceeding by way of indictment. The majority of the court found that the Crown was entitled to proceed by laying a new information. In coming to this conclusion, the majority held that there was no acquittal and that the plea of autrefois acquit was not available. Kerwin C.J.C. held that the Crown had the right to withdraw the information. Fauteux and Abbott JJ. held that the non-compliance with the limitation period was fatal to the validity of the Crown election and therefore the accused’s plea was void and Tashereau J. found expressly, and Abbott J. by implication, that the accused was not in jeopardy: see also R. v. Kelly (1998), 112 OA.C. 55 (C.A.); R v. M.(R.), 2008 ONCJ 796.

[34] There is also no legal requirement that an information be laid in the jurisdiction in which the alleged offence occurred that would render the information a nullity. This is demonstrated by the fact that courts have jurisdiction to conduct a trial involving offences that occurred in one region, but are charged in another region, as was recently considered by the Court of Appeal in R. v. Davis, 2018 ONCA 946. In that case, York Regional police were investigating an unrelated matter when they saw the accused commit drug trafficking offences in Peel Region, where he was arrested. The police took him back to York Region, where he was charged. At the commencement of his trial in York Region, the accused argued that the trial judge did not have jurisdiction to hear the trial. The trial judge found that he had jurisdiction. The accused sought an order of prohibition and procedendo, with certiorari in aid. Di Luca J. heard and dismissed that application in R. v. Davis, 2018 ONSC 4630, and the accused appealed to the Court of Appeal. The Court of Appeal dismissed the appeal, finding that the appeal failed on its merits for the reasons of Di Luca J. and that the appeal did not raise a jurisdictional issue that could be appealed.

[35] I adopt the reasons of Di Luca J. in finding that the provincial court and this court has jurisdiction to hear the Toronto and Peel charges and therefore the information cannot be a nullity based on the fact that the offence occurred in a different jurisdiction. I rely upon the principles he sets out, at para. 31, which include:

a. The historical “locality” rule is no longer a jurisdictional requirement. Section 470 of the Criminal Code extends jurisdiction to try an offence beyond the scope of the historical “locality” rule.

b. The Ontario Court of Justice has jurisdiction to try any non-section 469 offence that occurred anywhere in Ontario.

c. The Crown’s decision to commence a matter in a particular location is a question of venue and not jurisdiction. Put another way, I do not see the Crown’s decision to commence a prosecution in one location as opposed to another as affecting the jurisdiction of the court to try the offence.

d. The Crown is not free, however, to simply commence and/or continue a prosecution wherever it wants. There must be some connection or sufficient other reason why it chooses to commence a prosecution in a specific location. Indeed, the general rule will be that an offence is to be prosecuted where it occurs. The general rule is subject to exceptions, and there may be circumstances where the Crown will determine that it is appropriate to commence and/or continue a prosecution in a jurisdiction other than the one where the offence took place. Where the Crown determines that an information has been laid by police in an inappropriate location, the Crown is free to bring a change of venue application, seek an administrative transfer of the charge or perhaps re-commence proceedings in the appropriate location.

e. Notwithstanding the Crown’s decision to commence a prosecution in a particular location, a Regional Senior Judge or the Chief Justice can, under the Courts of Justice Act, decide to administratively move a trial to a different location. A Regional Senior Judge can move a trial within a judicial region. The Chief Justice can move a trial between regions. Administrative moves of this sort are undertaken with a view to ensuring the efficient and effective administration of justice as discussed in R. v. Singh, supra.

f. In cases where the Crown has chosen to continue a prosecution in a location that has no apparent connection with an alleged offence, a Regional Senior Judge or Chief Justice, as the case may be, can move the case to the appropriate location. However, the administrative role of the Regional Senior Judge and/or Chief Justice does not require a review of each and every individual information before the court to determine whether the specific prosecution has been commenced in the appropriate jurisdiction. Such a task would be so burdensome as to be absurd.

g. The jurisdiction of the court to try an offence committed outside the administrative judicial region does not depend on the existence of an order by the Chief Justice or Regional Senior Judge, as the case may be, nor does it depend on a successful prior change of venue application. A direction by the Chief Justice or Regional Senior Judge and/or a change of venue order is a means of assigning venue, not jurisdiction.

h. Where an accused objects to the location of trial on the basis that it is outside the region or location where the offence allegedly occurred, an application for a change of venue under s. 599 of the Criminal Code can be brought. Traditionally, an application for a change of venue is brought in jury trials where an accused argues that a fair trial is not possible due to the notoriety of the case in the location where it is being tried. While s. 599 is found in Part XX of the Code which deals with procedure in jury trials, Part XX of the Code is applied mutatis mutandis to judge alone trials in indictable matters and in summary conviction trials, see ss. 572 and 795 of the Code. There is a dearth of case law examining a change of venue application in judge alone trials. Indeed, in most cases where there is an issue about a fair trial in a judge alone trial, the usual application is a recusal motion. That said, there is nothing in s. 599 of the Code that limits a change of venue to jury cases where there is a concern about the ability of the jury to fairly try the accused.

i. Where an accused brings a change of venue application the onus will rest on him or her as the applicant. However, where the trial is not being held in the ordinary venue, it may well be that the evidential onus shifts to the Crown to persuade the court that the presumptive venue rule should not apply in the circumstances of the case. I say this for the following reason. The burden on the accused to demonstrate the need for a change of venue is premised on the starting point presumption that cases will be heard in the venue where the alleged crime took place, see R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont.C.A.) at para. 30. Most of the case law dealing with change of venue applications involves cases where the indictment or information was filed in the “correct” location, i.e. where the offence took place. It is in this context that the cases address the high onus on the accused to demonstrate that a change in venue is “expedient to the ends of justice”. However, that is not the case where the police and/or Crown have chosen a location that is not where the trial would ordinarily be held. I pause to note that in R. v. Garbera, supra, at para. 31, Justice Howden found that trial judge’s placement of the onus on the accused in such a scenario was a jurisdictional error sufficient to warrant an extraordinary remedy. With great respect, I disagree. While it may have been an error to place the complete onus on the accused to justify the change of venue in those circumstances, it was, at best, an error in law, subject therefore only to appellate review.

j. The courts are generally reluctant to review the Crown’s exercise of discretion, and the Crown is generally not required to provide reasons for why or how it exercises its discretion. That said, there are cases where the refusal to provide reasons for an exercise of discretion may give rise to certain inferences, see R. v. G.C. 2010 ONSC 115 at paras. 41 and 42. It may be that in a case where an accused is being tried in a location that has no obvious connection to the location of the offence, and the Crown refuses to provide reasons for why it has decided to prosecute the accused in that location, it will be unable to justify the departure from the presumptive rule that matters are to be tried where they occurred. This would support a change of venue to the appropriate location, and in the rare case might establish an abuse of process.

k. Lastly, it would also be open to the accused to seek an administrative transfer from the Regional Senior Judge or Chief Justice as the case may be. Similarly, it would be open to a trial judge when confronted with an information alleging an offence committed in another region, to refer the matter to the Chief Justice or Regional Senior Justice for a transfer under the provision of the Courts of Justice Act, see R. v. Garbera, supra, at para. 32.

[36] In this case, there are sufficient reasons for the Crown to have commenced the prosecution in Peel Region. One of the offences is alleged to have occurred in Peel Region, the other offence in Toronto. The Peel and Toronto charges involve the same accused, similar offences and the facts are similar, such that the Crown is bringing a similar fact application. The applicant appears to reside in the Peel Region. The applicant could have but chose not to bring a change of venue application. He has brought severance application. Based on these factors, I see no basis to find that the new information that contained the Toronto and Peel charges could not be filed or that the trial heard in Peel Region would render the information and subsequent indictment a nullity: see also R. v. Lawson, 2018 ONSC 4251; and R. v. Ponnuthurai (2002), 170 C.C.C. (3d) 440 (Ont. C.J.).

Issue #2: Was the Laying of an Information in Peel an Abuse of Process?

[37] While I am satisfied that there was jurisdiction to lay the information and to proceed on the Toronto and Peel charges in Peel Region, that does not end the analysis. It must also be determined if the filing of the information in Peel Region was an abuse of process, given that the information had already been filed in Toronto and the Crown elected to proceed summarily but then filed a new information proceeding by way of indictment on both the Toronto and Peel charges. The applicant did not focus her oral submissions on the abuse of process doctrine, so I will briefly respond to this issue based on the written submissions.

[38] The test for granting a stay of proceedings based on an abuse of process is the same regardless of whether the abuse causes prejudice to the accused’s fair trial interests or to the integrity of the justice system: see Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 90. A stay of proceedings will only be appropriate when: “(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice”: R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 54, citing R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 75. There is also a residual category for certain cases where it is unclear if the abuse is sufficient to warrant a stay, whereby it may be appropriate for the court “to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits”: Tobiass, at para. 92; see also Regan, at para. 57.

[39] The Crown has broad discretion with respect to how it wishes to proceed on counts and how matters proceed before the court, absent an abuse of process: see R. v. Power, [1994] 1 S.C.R. 601. As Di Luca J. noted in Davis, at para. 31, courts are generally reluctant to review the exercise of Crown discretion, but may be prepared to do so “where an accused is being tried in a location that has no obvious connection to the location of the offence.”

[40] Given the facts in this case, I cannot say that the Crown’s conduct in proceeding on the new information with respect to the Peel and Toronto charges was abusive. The facts in this case are somewhat unique. The Crown only became aware of the DNA that connected the applicant to the Peel charges shortly before the Toronto trial date. The Crown had not yet provided disclosure in relation to the Peel charges. The Crown exercised its discretion and laid a new information containing both the Peel and Toronto charges in Peel Region. There was a connection to the Peel Region. Not only did one complainant reside in Peel Region, so too does the accused based on the address contained in the information. Importantly, the Crown has indicated an intention to proceed with a similar fact application to have the evidence apply from one set of charges to another. Proceeding in two separate locations in these circumstances would not be an efficient use of judicial resources.

[41] I also do not view the fact that the Crown proceeded by way of summary conviction on the first information and is now proceeding by way of indictment on the new information as abusive. There is no basis to find that the Crown acted in bad faith or for an improper motive. The Peel charges could not proceed by way of summary conviction given the time that had passed since the offence allegedly occurred. The police filed a new information and the Crown proceed by way of indictment to facilitate the charges being heard together before the accused was ever arraigned on the charges. The applicant was not prejudiced by this decision, as he had not plead to the charges. Nor was this a case where the Crown attempted to change the manner it was proceeding in the middle of the trial: see Kelly, supra.

[42] Even if the Crown’s conduct was found to be somehow abusive, I find that a stay of proceedings would not be appropriate, as there are responsive remedies available to the applicant: see Regan, at para. 56. The applicant may apply to have the charges severed. The applicant may also apply for a change of venue if he is of the view that the charges should be dealt with in Toronto, or he may seek an administrative transfer from the Regional Senior Judge or Chief Justice.

[43] Nor do I find that the applicant has been unfairly prejudiced on the basis that if the Crown had brought an application to join the two charges and the trial judge had considered the interests of justice test, the trial would have proceeded and the evidence of the Peel charges could not have been used as similar fact evidence against the applicant. This was not a case where the Crown was negligent or careless in gathering evidence. The Peel charges were the result of new evidence becoming available that was arguably relevant to the Toronto charges, such that it is likely that the Crown would have been granted an adjournment in those circumstances.

[44] I also find that it is not appropriate to reverse the onus on the severance application because the Crown did not bring a joinder application. As I have outlined, they were not legally required to do so.

[45] For all of the reasons outlined above, I do not find that the fact that the Crown did not bring an “joinder” application prior to filing a new information that contained both the Toronto and the Peel charges renders the indictment a nullity. Nor do I find that there is any basis to quash the indictment or stay the proceedings. The applicant’s submissions are more properly the subject of a severance application.

Issue #3: Should the Charges be Severed?

Legal principles

[46] Section 591(3) of the Criminal Code governs the severance of counts in an indictment. The court may, where it is satisfied that it is in the interests of justice, order that the accused be tried separately on one or more of the counts.

[47] The onus is on the accused to establish on a balance of probabilities that the interests of justice require severance.

[48] 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. While the list of factors to consider on an application for severance is not exhaustive, some of the relevant factors to consider are listed in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 18, which include:

a) the legal and factual nexus between the counts;

b) the complexity of the evidence;

c) whether the accused intends to testify on one count but not another;

d) the desire to avoid a multiplicity of proceedings;

e) the use of similar fact evidence at trial;

f) the length of the trial having regard to the evidence to be called;

g) the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and

h) the general prejudice to the accused.

No one factor is determinative. All relevant factors must be carefully considered and weighed by me in determining if it is in the interests of justice to sever the charges.

Position of the Parties

[49] The applicant submits that it is in the interests of justice that the Toronto and Peel charges be severed in the indictment. In oral submissions, the applicant took the position that this application would turn on the factual and legal nexus in this case. The applicant submits that there is an insufficient factual and legal nexus between the counts to justify having the counts heard together. There is a significant risk of prejudice to the applicant as a result of impermissible credibility bolstering and improper propensity reasoning if the Toronto and Peel charges are heard together. There is also the probability that the applicant would testify on one count but not the other, and there is no benefit to the administration of justice.

[50] The respondent submits that it is in the interests of justice that the counts be heard together for several reasons. The respondent argues that there is a factual and legal nexus between the counts, as demonstrated by the viability of a similar fact application. The case is not overly complex and having the matters heard together would be an efficient use of court resources and prevent delay of these proceedings. The respondent submits that the risk of prejudice to the applicant is limited, given that the gravity of the offences is similar in each count and the trier of fact can address any concern with respect to improper propensity reasoning. Finally, the respondent submits that it is not objectively reasonable to believe that the applicant would testify on one set of charges but not the other.

[51] I will now consider the factors that the parties have raised in their submissions in greater detail.

Factual and Legal Nexus

[52] I agree that the factual and legal nexus in this case is a very important factor in determining whether the severance application should be granted.

[53] I recognize that there are some differences between the allegations. For example, the offences are alleged to have occurred in different jurisdictions, although the complainants were picked up in the same district in Toronto; a different vehicle was used in each offence; and the Toronto complainant does not recall anything, whereas the Peel complainant recalls parts of the sexual activity.

[54] That being said, there are a number of similarities to the allegations as outlined by Crown counsel, which include:

a) Both complainants are young women in their twenties;

b) The offences occurred approximately three and a half months apart;

c) Both complainants were in the Entertainment District in Toronto, on King Street;

d) Both complainants were intoxicated and either do not recall or do not fully recall the events;

e) Both complainants were picked up by Uber/taxi drivers;

f) DNA was located on both complainants on one of their breasts, and the applicant cannot be excluded as being a contributor; and

g) The vehicles allegedly used, while different, were both registered to Mohammad Riaz of 52 Wildercroft Ave, Brampton.

[55] The applicant submits that many of the similarities put forth by the Crown are generic. While some facts may be considered generic when considered in isolation, when they are considered together along with the DNA evidence and the evidence with respect to ownership of the vehicles alleged to have been involved in the Peel and Toronto charges, there are several factual similarities.

[56] The applicant submits that it is not only the lack of factual nexus but also the lack of any legal nexus that justifies severance of the Toronto and Peel charges. The applicant submits that the legal issue with respect to the Toronto charges is whether the sexual activity occurred, and that identification is not an issue. With respect to the Peel charges, the applicant submits that identification is at issue, as well as other issues.

[57] The Crown submits that the factual similarities are sufficient to support a similar fact application, which the Crown intends to bring. The Crown argues that this application is relevant to two issues – identification and the rebuttal of innocent explanation.

[58] The availability of similar fact evidence is a relevant consideration that weighs against granting a severance application: see R. v. Brahaney, 2016 ONCJ 132, at para. 20, citing R v. W. (J.N.), 2010 ONSC 1057, at para. 57.

[59] In considering a severance application, it is not the role of the judge to decide on the admissibility of the similar fact evidence: Brahaney, at para. 22. Rather, I must consider whether the similar fact application is “viable”, making the admissibility of the similar act evidence possible: at para. 24. That would mean that even if the charges were severed, the similar fact evidence related to the severed charges would be presented at the trial of the remaining counts in any event.

[60] The similar fact evidence in this case relates to the actus reus of the offence. The Crown submits that it is relevant to identification and to respond to a possible defence of innocent explanation. In determining if similar fact evidence is admissible where identity is at issue, the court is to consider whether, on a balance of probabilities, the “striking similarity” between the acts committed indicates that they were likely committed by the same person, having regard to the manner in which the acts were committed or whether there is a trademark or series of significant similarities between the acts, which shows that the likelihood of coincidence is objectively improbable: R. v. Arp, [1998] 3 S.C.R. 339, at paras. 43, 48-50.

[61] In R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 82, the Supreme Court set out a list of factors to consider in connecting the alleged similar facts, which includes proximity in time; extent to which other acts are similar in detail to the charged conduct; number of occurrences of similar acts; circumstances surrounding or related to the similar acts; distinctive features between the acts; intervening events; or any other factors which would tend to support or rebut the underlying unity of the similar facts.

[62] The applicant argues that the sex acts are not the same. The Toronto complainant cannot recall any sexual activity, whereas the Peel complainant recalls some sexual activity. It is not my role to determine whether the application will ultimately be successful, only to consider whether it is viable. Despite the lack of evidence regarding the nature of the sexual activity that actually occurred, there are several factors that point to the viability of the application, as outlined in para. 55 above. Of particular importance to the similar fact application are the following facts: the vehicle seen in the video of the Peel complainant’s driveway matches the description of the vehicle driven by the applicant with Uber; although the vehicles allegedly involved in the Toronto and Peel charges are different, they are both owned by the same person (Mohammad Riaz); and the DNA evidence connects the applicant to both offences. I am satisfied that the similar fact application is viable based on the factual similarities that I have outlined above, and this factor therefore weighs in favour of denying the application.

Applicant’s Intention to Testify on One Count but not the Other

[63] Although not determinative, an accused’s intention to testify on one count and not the other should be given significant weight on a severance application, as the applicant’s defence should not be impaired by the hearing of the two counts together. In considering this issue, the court is to apply a subjective/objective analysis: see Last, at paras. 25-27.

[64] In this case, the applicant submits that he would likely testify on the Toronto charges, as identification is not in issue; rather, the issue is whether there was any sexual activity. In contrast, the applicant submits that he would not likely testify in the Peel charges, as identification is an issue.

[65] There is no affidavit evidence from the applicant regarding his testimonial intention, but I accept for the sake of argument his subjective intentions with respect to testifying.

[66] I do not, however, find that the applicant’s claim that he would be less likely to testify on the Peel charges as opposed to the Toronto charges is objectively justifiable. The applicant cannot be excluded as a contributor to the DNA found on the Peel complainant’s breast. Moreover, DNA results are 48,000 more times likely if the DNA obtained from the complainant’s breast came from the complainant, the applicant, and two unknown individuals than if they originated from the complainant and three unknown individuals. In these circumstances, it is objectively reasonable that the applicant would testify to explain the presence of his DNA on the Peel complainant’s breast.

[67] A similar argument was raised in Last and rejected by the Supreme Court. In that case, the applicant advised that it was not his intention to testify on one set of counts because identification was in issue. The court noted that despite his stated intention, the Crown’s case implicating him was not insignificant, given that Mr. Last admitted that he was in the apartment prior to the alleged offence. The court found that in those circumstances, it was fairly probable that he would have to testify in order to put forward his theory of the case: at para. 29. While in this case there is no statement from the applicant putting him at the scene of the incident, there is DNA evidence, which strongly supports that inference. Given the evidence in this case, it is not objectively justifiable that the applicant would testify on one set of charges but not the other: see R. v. Richards, 2015 ONSC 6805, at para. 25. This factor does not support severance.

Prejudice to the Accused

[68] The applicant asserts that there is a real risk of prejudice that the trial judge will engage in impermissible reasoning if the charges are heard together, because the Toronto charges are extremely weak. The Toronto complainant cannot remember what happened, whereas the Peel complainant can recall certain events. The applicant submits that if the charges are heard together, there is a real risk that the trial judge will engage in impermissible reasoning that if the applicant committed one sexual assault, he must have committed the other, essentially impermissibly bolstering the credibility of the Toronto complainant.

[69] The risk of improper propensity reasoning is attenuated by the fact that this is a judge alone trial, as opposed to a jury trial. The trial judge is aware of the legal parameters in which he or she can consider the evidence and is expected to apply the law correctly. In addition, I note that the risk of prejudice to the applicant is reduced by the fact that there are only two incidents and two complainants. This is not a case where there are multiple complainants involving multiple incidents. While the nature of the sexual acts cannot be decisively compared, given the memories of the two complainants, the level of culpability is similar. The issue for the judge to determine will be whether there was touching or possibly intercourse. There is no evidence before me that a weapon was used or violent threats were made in one incident as opposed to the other that would create an imbalance between the charges, making it less appropriate for the charges to be heard together: see Last, at para 40. I conclude that the risk of prejudice to the applicant can be sufficiently addressed by the trial judge and therefore this factor does not favour severance.

Complexity of the Evidence

[70] Based on the evidence before me, I do not see either count as being overly complex. With respect to the first count, it appears to involve a credibility assessment of the complainant’s evidence regarding what happened and what can be inferred from her evidence. With respect to the Peel count, there is the potential additional issue of identification, as raised by the applicant, but it does not appear that a lengthy or overly complicated trial will be required. The judge alone trial is set for two weeks. This factor does not assist in determining the issue of severance.

Multiplicity of Proceedings

[71] It is generally in the public interest to have matters tried together, particularly where there is a viable similar fact application to be heard, as in this case. If there were no similar fact evidence application, there may be some overlap of witnesses, but it would appear to be minimal. With the potential similar fact application, severance would result in a multiplicity of proceedings where the same witness could potentially have to testify a number of times about the same event, if a similar fact application were successful at each trial. This would place an undue burden on the witnesses and the judicial system. This factor weighs against severance.

Right to be tried within a Reasonable Period of Time

[72] The Crown submits that if the matters are severed, it should not be a problem to have the Peel charges heard within a reasonable time, as the Jordan date is not until January 10, 2021. With respect to the Toronto charges, it is less clear if the trial could be held within a reasonable period of time. The applicant suggested that if the matter was severed, she would request that the matter be transferred back to Toronto. It is unknown when dates would be available.

[73] The applicant submits that I should not give the issue of delay any consideration in determining the issue of severance, as the delay is primarily a result of the Crown’s actions in filing a new information containing both the Toronto and Peel charges on the eve of the Toronto trial. I am sympathetic to the applicant’s argument on this point, but I also recognize that the court has an obligation to the public to ensure that the administration of justice operates in a fair and open manner that seeks to determine the truth of the allegations. At the end of the day, I do have some concerns that if the matters are severed, the Toronto charges may not be heard within the Jordan timeframe, but I am not giving this factor significant weight as there is no evidence before me as to when a trial date on the Toronto charges could be obtained should severance be ordered and the matter be ordered to be heard in Toronto.

Inconsistent Verdict

[74] I do not see how there is a risk of inconsistent verdicts in this case. This factor does not assist in determining the application.

Conclusion

[75] After considering and balancing all of the factors that are applicable in this application for severance, I am not satisfied that it is in the interests of justice to sever the Peel and Toronto charges. There is a factual and legal nexus between the charges, as well as a viable similar fact application that may result in a multiplicity of proceedings if the matters are not heard together. The risk of prejudice is attenuated in this case, as it is a judge alone trial. In the circumstances, the application for severance before me is dismissed.

Dennison J.

DATE: May 13, 2019 CORRECTED: July 11, 2019

COURT FILE NO.: CR-18-1363 DATE: 2019 05 13 CORRECTING DATE: 2019 07 11

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN

• and - WAQAR ALI COUNSEL: C. Lynch, for the Crown L. Daviau, for Waqar Ali, for the Applicant CORRECTED DECISION TO THE REASONS FOR DECISION RELEASED MAY 13, 2019 Dennison J.

Released: May 13, 2019 Corrected: July 11, 2019