Her Majesty the Queen v. A.W., 2019 ONSC 898

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: J-18-210

DATE: 2019-02-05

B E T W E E N:

Her Majesty the Queen

K. Malkovich, for the Respondent

Respondent

• and -

A.W.

G. Read, for the Applicant

Applicant

HEARD: February 4 and 5, 2019

SKARICA J.

PRE-TRIAL RULING ON SEVERANCE APPLICATION

1The accused is charged with five counts in an indictment. Counts 1, 2, and 3 allege that the accused between June 1, 2016 and May 27, 2017 did, regarding B.P., (who is his niece and was eight years of age at the time of the offences), commit the offences of sexual assault, sexual interference, and invitation to sexual touching against B.P.

2Counts 4 and 5 allege that the accused between January 1, 2011, and December 1, 2012, did, regarding M.R., (who is his half-sister and was 11-12 years of age at the time of the offences), commit the offences of sexual assault and sexual interference against M.R. The accused asks that counts 1, 2, and 3 be severed from counts 4 and 5.

FACTS

3The complainant B.P. indicates that when she was eight years of age, she was sexually assaulted by the accused, her uncle, while he was babysitting in B.P.’s home. B.P.’s complaints include the accused making B.P rub his penis, putting his penis in her buttocks, putting his fingers in her vagina and rubbing her clitoris with hand cream, and licking her vagina. These were sexual assaults on five separate occasions.

4The accused told B.P. to keep it a secret and tell no one what had happened.

5M.R., the second complainant alleges when she was 11-12 years old, the accused, her half-brother, sexually assaulted her. M.R.’s complaints include the accused stopping her when nobody else was home (they were living together), ripping off her pants, and touching her. On a second occasion, he pulled down her pants and then pulled down his pants and he “raped” her. She indicates at page 20-21 of her police statement:

Detective Lord: Oh, okay. Okay, so we're at the point, you said he pulls down your pants.

What did – what happens after that?

M.R.: He raped me.

Detective Lord: Okay. So what was he wearing?

M.R.: I think he was just wearing baggy pants and a T-shirt.

Detective Lord: Okay. So how – did his clothes come off?

M.R.: No.

Detective Lord: Okay.

M.R. He just pulled down his pants.

Detective Lord: All right. And what does rape mean to you?

M.R.: He, well, he started feeling me down there, and then he put his dick in me.

Detective Lord: Okay. And when you say in me, what did he put it in?

M.R.: In both my ass, and then my vagina.

Detective Lord: Okay. And did you say anything to him?

M.R.: I was trying to get away.

Detective Lord: Okay. He says, "I'll give you – I’ll buy you an iTunes card."

M.R.: Mm-hmm.

Detective Lord: Or whatever it is he tells you. And if you don't – if you let him do this.

M.R.: Mm-hmm.

Detective Lord: Did you let him do it?

M.R.: I tried not to, but he – even – since he's a lot stronger than me, I guess it

was still complying with him. 'Cause he was holding my arms and everything, so I couldn't get away.

Detective Lord: Okay. So you're in the hallway.

M.R.: Mm-hmm.

Detective Lord: And originally, obviously, when you get confronted by him, you're walking to go downstairs, so you're standing; you're on your feet

M.R.: Yeah.

Detective Lord: Are you on your feet the whole time?

M.R.: No, he knocked me down.

6B.P., shortly after the sexual assaults upon her, disclosed the sexual assaults to her mother in early June 2017.

7Or on about June 7, 2017, the accused responded to B.P.’s home and was told to leave by N.B., the new partner of S.W., who is B.P.’s mother and M.R’s sister. On the same day, that is on or about June 7, M.R. learned of B.P.’s complaint and responded to A.H., her grandmother, that the accused had done it to her too. M.R. had been at B.P.’s house with her grandparents, A.H. and W.H., when N.B. told the accused to leave. M.R. gave a statement to the police on June 8, 2017, outlining her allegations.

8L.R., is the mother of S.W. (B.P.’s mother), the accused, and M.R. She learned of the allegations from family members and M.R. Accordingly, on June 10, 2017, she texted the accused.

9In L.R.’s police statement of June 22, 2017, L.R. describes her text and the accused’s reaction as follows at pages 10–11:

Detective Duench: Okay. So, I'm going back here. So, on June 10th at 12:50 p.m. you asked, "I

want to know if it is true what everyone is saying about you abusing young

and innocents. I will always love you because you are my son, but I need to

know why you would do such a thing."

L.R.: Yes, that's what I told him.

Detective Duench: And then….

L.R.: I tried to put it so he wouldn't, you know, freak out or whatever...

Detective Duench: Yeah.

L.R.: …run away

Detective Duench: Okay. So, then at 12:55 p.m. on June 10th you said, sent him a message, "If

you are not going to be there for Kenny, let me know what I don't – let me

know, I don't want him to suffer." And Kenny is his ...

L.R.: Cat.

Detective Duench: ... cat, okay. All right. So, then he replies to you on the next morning, June

11th at 5:23 a.m.

L.R.: Mm-hmm.

Detective Duench: He says, "I didn't do anything, Mom. I wouldn't do such a thing. It doesn't

matter anymore. I’ve taken a lot of tablets. I was going to take them,

anyways, no matter what. I've been planning to do this for a long while. My

life wasn't much for living. I tried telling you guys, but I couldn't. I love you.

Door is unlocked. I'm in the bathroom. I don't want you to see what I've

done to myself. I've made my choice. Don't call for help. Just come and get

Kenny. Give him what love you can. He is in the bedroom with lots of food

and water. Everything will be fine in the end. I love you guys, and never ever believe for a second I would do such a thing to anyone ever."

L.R.: So, that’s what I got and I rushed down there, obviously.

Detective Duench: Okay.

L.R.: But, he wasn’t dead, obviously. But, he did slit his wrist. Like, I mean, it is like really wide and gross looking.

10The accused’s suicide attempt, as outlined above, has been ruled admissible after a pre-trial motion hearing and ruling regarding post-offence conduct.

LAW

11A trial judge has a broad discretion under s. 591(3) of the Criminal Code to sever counts where he/she is satisfied that the interests of justice so require.

12Severance will be granted where an accused on a balance of probabilities persuades the court that the interests of justice require a severance: see R. v. Vora, 2017 ONSC 6128, at para. 17; R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 26; R. v. Brahaney, 2016 ONCJ 132, at para. 12; R. v. McNamara (No. 1) (1981), 1981 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.), at 265.

13The leading case in Canada regarding severance is R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146.

14The Ontario Court of Appeal in R. v. Jeanvenne summarized the severance case law and concluded as follows at paras. 28–29:

28At paras. 16-17 of Last, the Court canvassed the overall considerations bearing upon the judge’s exercise of discretion, as well as the factors to be considered:

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. [Emphasis added.]

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. ...Severance can impair not only efficiency but the truth-seeking function of the trial.

29Finally, the Court identified a non-exhaustive list of particular factors to be considered. These factors are not in dispute, and 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.

[Citations Omitted]

15I will briefly refer to each of these factors.

General Prejudice to the Accused

16The allegations that the accused sexually assaulted two young female family members on several occasions raises the specter of moral prejudice (potential stigma of bad personhood). There is very little reasoning prejudice as the Crown is not advancing any other evidence not relating to the counts charged in the indictment: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 100.

17Further, this is a judge alone trial. In trials by judge alone, the danger that a conviction will be rooted in either reasoning or moral prejudice is significantly lessened: per Watt J.A. discussing similar fact evidence regarding counts relating to each other at paras. 87-90 in R. v. J.M., 2010 ONCA 117, 258 O.A.C. 81; see also R. v. Burnet, 2018 ONSC 6225 at paras. 13-15.

Legal and Factual Nexus Between the Five Counts

18The five counts allege sexual assaults against female family child relatives. Regarding the initial disclosure by the complainants, there is significant intertwining of evidence.

19The evidence is that B.P. disclosed the offences against her to her mother. B.P.’s mother disclosed these offences to the grandparents, who disclosed it to M.R., who immediately disclosed to her grandmother that it had happened to her as well. This appears to have happened all on the same day—June 7, 2017. The sexual assault of B.P. explains why M.R. made her late disclosure some five years after her sexual assaults. It would be artificial only to hear evidence of how only one complaint came to light. I believe that the intermingling of circumstances regarding the disclosure of these offences provides a strong factual nexus between the assaults: see R. v. S. (E.)(2000), 2000 3240 (ON CA), 129 O.A.C. 146 (C.A.), at para. 18.

20Further, the post-offence conduct consisting of evidence of the accused attempting to commit suicide, after being accused of sexually molesting young innocents and denying they occurred, appears to apply equally to all of the counts involving the two complainants.

Complexity of the Evidence

21The evidence is not complex. The evidence consists, in each count, of the complainants, family members regarding disclosure, and the post-offence conduct circumstances.

22Much of the evidence of the family members and post-offence conduct would be duplicated in two separate proceedings.

Where the Accused Intends to Testify on One Count and not the Other

23In R. v. Last, Justice Deschamps indicated at para. 26:

26Both 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.

24Has the accused provided me with sufficient information to convey that the circumstances objectively establish a rationale for testifying on some counts and not others? The answer, bluntly, is no. In fact, objectively, the evidence supports the notion that should the accused testify, he will deny the allegations of both complainants on the ground it never happened. In L.R.’s police statement, at page 11, when confronted with the allegations that he is abusing innocents (plural), the accused states, “I didn’t do anything mom. I wouldn’t do such a thing … I love you guys and never ever believe for a second I would do such a thing to anyone ever.”

Possibility of Inconsistent Verdicts

25As conceded by the parties, I do not see this issue as a concern.

The Desire to Avoid a Multiplicity of Proceedings

26Given the relative simplicity of both the law and evidence, issues of relevance and admissibility can quite legitimately be handled in one proceeding.

27Further, I understand that the two complainants live in Alberta and given the prospect of a favourable ruling for the Crown regarding similar fact, each complainant would have to testify at two trials causing significant costs to the public and considerable inconvenience to the youthful witnesses.

Length of Trial Having Regard to Evidence to be Called

28Given that, aside from the evidence of the individual complainants, two trials, if ordered, would largely duplicate the evidence of the disclosure evidence of family members and the after-the-fact evidence relating to the accused’s suicide attempts. Accordingly, two trials would require roughly two times the court time of one trial.

Potential Prejudice with Respect to be Tried Within a Reasonable Time

29Two trials would probably take longer to be tried due to scheduling issues. However, it appears both trials could take place in 2019, which is within the “Jordan timeframe”.

Antagonistic Defences

30Given that there are no co-accused, this factor has no application in this present case.

Use of Similar Fact Evidence at Trial

31The issue is a significant factor to be considered regarding severance.

32In R. v. Brahaney, Paciocco J., as he then was, provides a useful summary of the relevance of a similar fact application to the issue of severance at paras. 20, 22-24:

20More significantly, the Crown urged persuasively that evidence relating to the Huynh incident is apt to be admissible as similar fact evidence in assisting in the prosecution of the Campbell allegations. The availability of similar fact evidence is a relevant consideration that plays against granting a severance application: R. v. W. (J.N.) 2010 ONSC 1057, [2010] O.J. No. 730 at para 57 (Ont. S.C.J.)

22It 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: R. v. W. (J.N.), supra; R. v Minister, 2012 ONSC 1040, [2012] O.J. No. 741 at para 46 (Ont. S.C.J.); R. v. B. (I.), [2013] O.J. No. 1615 at para 26 (Ont. S.C.J.).

23In R. v. Carson [2015] O.J. No. 2528 at paras 37-42 (Ont. S.C.J.), Justice Hill, relying on R. v. Blacklaws (2012), 2012 BCCA 217, 285 C.C.C. (3d) 132 (B.C.C.A.), aff’d by the S.C.C. 2013 SCC 8, described this as a “possibly admissible” standard.

24If 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.

33In R. v. Last, Deschamps J. indicated at para. 34:

34In the case at bar, an issue facing the trial judge at the time of the severance hearing was the fact that the Crown indicated that it wanted to wait until the conclusion of its evidence before making a similar fact evidence application. There is no procedural rule requiring the Crown to bring the similar fact evidence application at the time of the severance application: see D. Watt, Watt’s Manual of Criminal Evidence (2009), at s. 34.02. 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.

34In a similar fact application, the court must identify the value of the evidence in relation to an issue in question: see Handy, at paras. 69-75.

35The Crown, in its factum at page 10, submits that the similar fact evidence is relevant to:

1. prove the commission of the offence;

2. support the credibility of the complainants;

3. negate any suggestions by the defence of fabrication, collusion or lack of opportunity.

36This is similar to the issues identified in R. v. Burnet where count-to-count similar fact evidence was held to be probative and relevant to the issues of actus reus and the complainant’s credibility: see R. v. Burnet, at paras. 3, 14 and 57-61.

37R. v. Handy outlines, at para. 82, the factors to be considered in connecting the alleged similar acts to the circumstances set out in the charges:

82 The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. Factors connecting the similar facts to the circumstances set out in the charge include:

(1) proximity in time of the similar acts: D. (L.E.), supra, at p. 125; R. v. Simpson (1977), 1977 1142 (ON CA), 35 C.C.C. (2d) 337 (Ont. C.A.), at p. 345; R. v. Huot (1993), 1993 8652 (ON CA), 16 O.R. (3d) 214 (C.A.), at p. 220;

(2) extent to which the other acts are similar in detail to the charged conduct: Huot, supra, at p. 218; R. v. Rulli (1999), 1999 3712 (ON CA), 134 C.C.C. (3d) 465 (Ont. C.A.), at p. 471; C. (M.H.), supra, at p. 772;

(3) number of occurrences of the similar acts: Batte, supra, at pp. 227-28;

(4) circumstances surrounding or relating to the similar acts (Litchfield, supra, at p. 358);

(5) any distinctive feature(s) unifying the incidents: Arp, supra, at paras. 43-45; R. v. Fleming (1999), 1999 18921 (NL CA), 171 Nfld. & P.E.I.R. 183 (Nfld. C.A.), at paras. 104-5; Rulli, supra, at p. 472;

(6) intervening events: R. v. Dupras, 2000 BCSC 1128, [2000] B.C.J. No. 1513 (QL) (S.C.), at para. 12;

(7) any other factor which would tend to support or rebut the underlying unity of the similar acts.

38My review of the evidence before me establishes the following:

1. Proximity in Time—The alleged offences occurred approximately five years apart. This factor weighs against the admissibility of the proposed similar fact evidence;

2. Extent of Similarity—The allegations from both complainants is that they were very youthful female relatives of the accused (B.P.,his niece, was 8 years old; M.R., his half-sister, was 11-12 years old) who were sexually assaulted by the accused in their homes when no one was around. Both complainants were told by the accused not to tell (B.P. was told to keep it a secret and M.R. was bribed with an iTunes card). I note that the degree of similarity required to justify reception in a case will depend on the issues raised in the case, the purpose for which the evidence is proffered and the other evidence in the case: see Handy at para. 78; J.M. at para. 91; and Burnet at para. 30. Where the evidence of similar acts is summoned in support of proof of actus reus, it is not an invariable requirement that there be strong peculiarity or unusual distinctiveness: see Handy, at para 81; and J.M. at para. 91.

3. Number of occurrences—B.P. was sexually assaulted approximately five times; M.R. was sexually assaulted two times. Accordingly, there were multiple attacks against each complainant.

4. Circumstances surrounding or relation to similar acts—both complainants were young female relatives of the accused.

5. Any distinctive features—both complainants were touched in a sexual way; both complainants complained that the accused put his penis in their buttocks.

6. Intervening Events—upon hearing of B.P.’s disclosure, M.R. disclosed her allegations immediately.

7. Any other factors supporting underlying unity of similar facts—upon being confronted by his mother, of sexually abusing young innocents, the accused denied all allegations but then attempted suicide.

39Depending on the actual details of the sexual assaults, the defence may or may not have an argument that, although the B.P. sexual assault counts’ evidence may be admissible on the M.R. sexual assault counts, the M.R. counts may not be admissible on the B.P. sexual assault counts. If the trial evidence establishes the M.R. counts involve sexual and anal intercourse, that evidence may establish circumstances which may be far more serious and revolting than the B.P. allegations. As I understand it, from the parties’ factums, the B.P. allegations do not involve allegations of sexual or anal penetration. I note, however, that in B.P.’s police statement, dated June 15, 2017, at page 13, there is a suggestion by B.P. of potential anal penetration. The preliminary hearing transcript was not included in the material before me.

40Should the trial evidence disclose that the offences involving M.R. are far more serious and revolting than the B.P. offences, it may be that the M.R. sexual assaults should not be admitted on the B.P. counts: see R. v. Thomas (2004), 2004 33987 (ON CA), 72 O.R. (3d) 401 (C.A.), at paras. 17-18 and 31-37. This is an issue that I do not need to resolve at this time and will be resolved when the Crown makes its similar fact application at the close of its case.

Conclusion Regarding Similar Facts Factor

41Balancing all the factors, as required by Handy, in my opinion, the similar acts have the required “high degree of similarity that renders the likelihood of coincidence objectively improbable” and that the probative value of the similar acts exceeds any prejudicial effect: see J.M., at paras. 89, 90; and Handy, at para. 76.

42I conclude that the Crown has a viable foundation for a similar act application regarding count-to-count application of evidence and has established a factual and legal nexus for joinder of counts: see Vora, at para. 53.

Conclusion Regarding Defence Severance Application

43Balancing all the severance factors, as outlined in Jeanvenne, at para. 29 and Last, at para. 18, it is in the interests of justice that the five counts in the indictment not be severed.

44The defence application for severance is dismissed.

Skarica J.