Court File and Parties

COURT FILE NO.: CR-19-70000156-0000 DATE: 20200306 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – D.B.

Counsel: S. Patterson and V. Gallegos, for the Crown K. Bryan, for the complainant D. Guido, for Mr. D.B.

HEARD: February 6, 18, 2020.

Ruling (Severance and Section 276 Application)

SCHRECK J.:

[1] D.B. and L.G. had been neighbours and friends for several years. On occasion, he sold drugs to her. She alleges that he came to her apartment one day seeking payment of a drug debt. When she did not pay, he produced a knife and robbed her of her purse. A day or two later, he returned and demanded that she “work off” the debt by performing fellatio on him, which he then forced her to do. A day or two after that, he returned to her building and demanded anal sex. He forced her out of the building and into an alleyway, at which point the police arrived.

[2] E.H. was a sex trade worker who did not know Mr. D.B. or L.G. She alleges that several hours before the third incident involving L.G., she met with Mr. D.B. in rented premises pursuant to an arrangement they had made for sex in exchange for money. While they were there, Mr. D.B. forced her to have sex with him and then stole her wallet.

[3] Mr. D.B. is charged with several counts of sexual assault, robbery and other offences in relation to both complainants. All of the charges are on a single indictment. Mr. D.B. has applied to have the charges relating to L.G. severed from those relating to E.H. The Crown resists the application.

[4] Mr. D.B. has also brought an application pursuant to s. 276 of the Criminal Code to admit evidence of past occasions on which L.G. willingly provided him with sexual services as payment for drug debts. The Crown and counsel for L.G. both oppose the application.

[5] For the reasons that follow, the application for severance is granted and the s. 276 application is dismissed. [1]

I. Facts

A. The First Two Alleged Incidents Involving L.G.

[6] The applicant and the complainant L.G. used to live in the same apartment building and were at one time friends. The applicant also provided L.G. with drugs on occasion. At the time of the first alleged incident, she owed him $50 for drugs.

[7] L.G. alleges that on January 29, 2018 at approximately 11:00 a.m., the applicant came to her home to collect the debt owed to him. Upon arriving, he brandished a knife and demanded the money he was owed. L.G. retreated into her apartment and the applicant chased her. He then grabbed her purse and left.

[8] L.G. contacted the police and the applicant was arrested and charged. He was released on a recognizance of bail.

[9] At the preliminary inquiry, L.G. testified for the first time that the applicant returned to her apartment on January 30 or 31 and demanded that she “work off” her debt by performing fellatio on him. She told him that she did not want to do that. He then grabbed her by the throat and repeated his demand for fellatio. She complied with the demand and performed fellatio on him three or four times.

B. The Alleged Incident Involving E.H.

[10] The second complainant, E.H., worked as an escort. She alleges that on February 1, 2018, she received a text message from the applicant, whom she did not know, requesting her services. She arranged to meet him at an address on Yorkville Avenue. When the applicant arrived, E.H. advised him of the price for her services. He produced a knife and demanded fellatio. She complied. He then put on a condom and forced her to have vaginal intercourse. He also demanded anal intercourse, but E.H. managed to prevent this from happening. Eventually, the applicant left, taking E.H.’s wallet with him. Security video showed him leaving at 2:24 a.m.

C. The Third Incident Involving L.G.

[11] On February 1, 2018 at about 6:00 a.m., L.G. was visiting a neighbour in her building when the applicant arrived and began banging on the neighbour’s door. He allegedly said “Do not make a sound, get into the stairwell I want anal.” L.G. refused and they began to argue. The applicant produced a knife and pushed her down the stairs. They ended up outside, where the applicant choked her and pushed her against a parked vehicle. She ran away and he chased her into an alley. L.G. called 911. Soon after, the police arrived and found the applicant and L.G. in the alley. L.G. was distraught and her pants were undone. The applicant was arrested. He had a knife and E.H.’s wallet in his possession. There is no evidence with respect to whether the knife he had was similar to the knife seen by E.H.

II. Severance

A. Overview

[12] Section 591(3)(a) of the Criminal Code provides that counts in an indictment should be severed if “the interests of justice so require.” In this context, the interests of justice must balance the accused’s interest in being tried on properly admissible evidence with society’s interest in trials being conducted efficiently: R. v. Last, 2009 SCC 45, [2009] 2 S.C.R. 146, at para. 16; R. v. Durant, at para. 72.

[13] The jurisprudence in this area has created a non-exhaustive list of factors courts should consider in determining whether counts ought to be severed. These were enumerated in Last, at para. 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 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].

B. Factual Nexus

[14] The Crown submits that there is a strong factual nexus in this case because the evidence shows that the applicant “embarked upon a sexual rampage” over two or three days. Having failed to get anal sex from E.H., he then demanded it from L.G. As well, E.H.’s wallet was found in his possession at the time he was arrested.

[15] While there is a clear temporal nexus, I do not agree that there is a strong factual nexus between the counts. They involved entirely different complainants. One was somebody the applicant had known for a considerable period of time while the other was a stranger to him. While there is evidence that he demanded anal sex from both complainants, he ultimately did not engage in that activity with either of them. While the fact that the applicant had E.H.’s wallet at the time of his arrest is clearly relevant, this evidence can be easily adduced without requiring the jury to hear all of the details of the alleged assault on L.G.

C. The Proposed Similar Fact Application

(i) Similar Fact and Severance

[16] Given the lack of nexus, there is a clear risk of prejudice to the applicant if the counts are tried together. Of course, that prejudice will exist in any event if the Crown succeeds in having the evidence of each complainant admitted as similar fact evidence in relation to the counts involving the other complainant. If such an application were successful, this would significantly weaken the case for severance. At this stage, I have not heard all of the evidence so I cannot make any determinative ruling with respect to the admissibility of similar fact evidence. I must consider, however, whether such an application would be likely to succeed: Last, at para. 34.

(ii) Legal Principles Governing Similar Fact Evidence

[17] Similar fact evidence is presumptively inadmissible. The reason for this was explained in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31:

… [E]vidence of misconduct beyond what is alleged in the indictment which does no more than blacken [the accused’s] character is inadmissible. Nobody is charged with having a “general” disposition or propensity for theft or violence or whatever. The exclusion thus generally prohibits character evidence to be used as circumstantial proof of conduct, i.e., to allow an inference from the “similar facts” that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence. The danger is that the jury might be confused by the multiplicity of incidents and put more weight than is logically justified on the [similar fact evidence] (“reasoning prejudice”) or by convicting based on bad personhood (“moral prejudice”).

[18] However, an exception to the rule of presumptive inadmissibility is made where “the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception”: Handy, at para. 55. The policy basis for this exception was explained in Handy, at paras. 47-48:

The policy basis for the exception is that the deficit of probative value weighed against prejudice on which the original exclusionary rule is predicated is reversed. Probative value exceeds prejudice, because the force of similar circumstances defies coincidence or other innocent explanation.

Canadian case law recognizes that as the “similar facts” become more focussed and specific to circumstances similar to the charge (i.e., more situation specific), the probative value of propensity, thus circumscribed, becomes more cogent. As the differences and variables that distinguish the earlier “similar facts” from the subject matter of the charge in this type of case are reduced, the cogency of the desired inferences is thought to increase. Ultimately the policy premise of the general exclusionary rule (prejudice exceeds probative value) ceases to be true.

[19] Similar fact evidence that is admissible is still evidence of propensity: Handy, at paras. 59-68. However, it cannot be evidence of mere general propensity and must be specific enough to give it sufficient probative value such that it outweighs its prejudicial effect. This is because “[c]ogency increases as the fact situation moves further to the specific end of the spectrum”: Handy, at para. 87. In Handy, at para. 92, the Court adopted the following from Pfennig v. R. (1995), 127 A.L.R. 99 (H.C.), at p. 115:

Thus, evidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark, lacks cogency yet is prejudicial. On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connection with or relation to the issues for decision in the subject case. That evidence, as has been said, will be admissible only if its probative value exceeds its prejudicial effect. [Emphasis added in Handy].

(iii) The Issues in Question

[20] The probative value of the evidence “in relation to a particular issue” can only be assessed if that issue is identified: Handy, at paras. 69-75. In this case, the Crown submits that the similar fact evidence is probative in relation to (1) “showing that the applicant refused to accept the victim’s lack of consent”; (2) “to refute innocent association or less guilty association with sex trade workers”; and (3) “to corroborate a Vetrovec witness”. [2] The Crown does not seek to admit the evidence to prove identity.

(a) Lack of Consent

[21] The Crown submits that the similar fact evidence is admissible to show that the applicant refused to accept each complainant’s lack of consent. This is similar to the purpose for which similar fact evidence was tendered in Handy, where the Court held (at para. 120) that “[I]f the jury could legitimately infer sexual intransigence in closely comparable circumstances from the respondent’s past behaviour and refusal to take his wife’s no for an answer, the present complainant’s testimony that intercourse occurred despite her lack of consent gains in credibility.” The issue, then, is whether the two alleged sexual assaults in this case occurred in “closely comparable circumstances.” In my view, they did not.

[22] As in Handy, the nature of the relationship between the applicant and each of the complainants is very different. He and L.G. had a longstanding relationship that began as a friendship and which also involved the sale of drugs. In contrast, he had no prior relationship with E.H. and the arrangement that led to them being alone together was purely commercial in nature.

[23] Also, unlike in Handy, there is only one alleged incident involving E.H. and two involving L.C. Neither set of allegations can be said to establish a “pattern of conduct” from which some specific disposition on the part of the applicant can be inferred: Handy, at para. 128.

[24] The Crown relied on two other similarities: that both complainants had items stolen from them and both alleged assaults occurred in the same geographic location. However, it is not every similarity that is relevant. Rather, it is only those similarities that relate to the issue in question. The fact that the applicant stole items after the alleged incident is of little relevance to the issue of whether each complainant consented. With respect to the “geographic similarity”, I have some difficulty understanding this submission. The incident involving L.G. happened at her home in the eastern part of Toronto. The incident involving E.H. happened in the Yorkville area. While both locations are in Toronto (as are almost all events at issue in trials before Toronto courts), they are not close to each other.

[25] In these circumstances, the similar fact evidence does not show a “particular distinctive propensity” on the part of the applicant. What it shows is a propensity to have sexual contact with women despite a lack of consent, which is so general a propensity such as to be of little use: Handy, at para. 86.

(b) Rebutting Innocent Association

[26] The respondent submits that the similar fact evidence rebuts a suggestion of innocent association because it “refutes any allegation that the applicant was conducting the less guilty business of visiting sex workers.” [3] I take from this that the Crown wishes to rely on the testimony of L.G. to support its case in relation to E.H.

[27] The term “innocent association” usually refers to a denial of an essential element of the Crown’s proof: R. v. McDonald, 2017 ONCA 568, 351 C.C.C. (3d) 486, at para. 74. In sexual assault cases, it usually relates to the element of sexual contact. Thus, in a case where an accused takes the position that he touched the complainant accidentally, evidence that he intentionally sexually assaulted other complainants in similar circumstances is admissible to rebut that suggestion: Handy, at para. 72; R. v. R.B. (2003), 68 O.R. (3d) 75 (C.A.), at para. 56.

[28] It is unlikely that any defence of innocent association of this type will be raised in this case. It is far more likely that the applicant will either take the position that sexual contact with E.H. was consensual or else that he was not the person whom she met and who assaulted her. In the former case, evidence of another person’s lack of consent will have little bearing on whether E.H. consented: Handy, at para. 117; R. v. Clermont, [1986] 2 S.C.R. 131, at p. 135. In the latter case, the evidence is not nearly distinctive enough to be admissible on the issue of identity: R. v. Arp, [1998] 3 S.C.R. 339, at para. 43. In any event, given the differences between the allegations, the evidence of L.G. still does not reach the level of specificity required to remove it from the realm of evidence of general disposition.

(c) Corroboration of L.G.

[29] The respondent also wishes to rely on the evidence of E.H. to corroborate the testimony of L.G. in the event that she is considered to be a “Vetrovec witness”. [4] While it is always open to the Crown to seek to confirm the evidence of a Vetrovec witness, the type of evidence that is capable of doing so is subject to the same rules of admissibility as any other evidence. Put another way, whether the evidence of E.H. can be relied on to confirm the evidence of L.G. does not depend on whether the latter is a Vetrovec witness.

[30] In Handy, at para. 116, the Court noted:

Anything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant. Identification of credibility as the “issue in question” may, unless circumscribed, risk the admission of evidence of nothing more than general disposition (“bad personhood”).

For the reasons outlined earlier, there is insufficient similarity between the allegations to support L.G.’s credibility in any way beyond showing a general disposition on the part of the applicant.

(iv) Conclusion

[31] For the foregoing reasons, I am of the view that the Crown’s similar fact application is unlikely to succeed. This weighs in favour of severance.

D. The Applicant’s Intention to Testify

[32] The applicant submits that he “may” wish to testify on some counts but not others. In Last, at para. 26, the Court explained how this factor should be considered:

Both the Crown and the defence submit that the accused’s intention should be objectively justifiable. This requirement is, indeed, a threshold. The accused’s expression should have both a subjective and an objective component. However, while a formulaic expression of a subjective intention is not sufficient in and of itself to discharge the accused’s burden to have the counts severed, the trial judge should not substitute his or her own view for that of the accused and determine that the accused should testify or not. Rather, the trial judge must simply satisfy him- or herself that the circumstances objectively establish a rationale for testifying on some counts but not others. The burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention. The information could consist of the type of potential defences open to the accused or the nature of his testimony: Cross, at p. 421. However, the accused is not bound by his stated intention; he remains free to control his defence, as the case unfolds, in a manner he deems appropriate.

[33] In this case, while counsel for the applicant has stated that he may wish to testify in relation to some counts but not others, she provided no clear articulation as to the basis for such a strategy. E.H. has no apparent motive to fabricate allegations against the applicant. Assuming it can be proven that he was the person who was with her in the room, it may be necessary for him to testify as to a different version of events. In contrast, L.G. arguably has a motive to fabricate as she was indebted to him. As well, she apparently has a prior conviction for public mischief. This may make it feasible for the applicant to not testify and simply rely on weaknesses in the Crown’s case. However, L.G.’s evidence with respect to the third incident is corroborated by the police officers who arrived on the scene.

[34] In all of the circumstances, while it may be objectively justifiable for the applicant to wish to testify on some counts but not others, I do not view this as a significant factor in deciding whether there ought to be severance: Last, at para. 30.

E. Benefit to the Administration of Justice

[35] In this case, there is little overlap in evidence or witnesses. While the fact that the applicant was found in possession of E.H.’s wallet is clearly significant, the circumstances in which the police found the wallet is of no relevance to the charge involving her. More importantly, neither complainant would have to testify at the trial involving the other. Any benefit to the administration of justice in having the charges tried together is minimal: Last, at paras. 41-42.

F. Prejudice

[36] In my view, there is a significant risk of propensity reasoning on the part of the jury in this case. The jury would inevitably wonder why two complainants who did not know each other would independently accuse the applicant of sexual assault. If the jurors were convinced of the applicant’s guilt with respect to one complainant, they would be inclined to reason that the applicant had the propensity to commit this type of offence and convict him with respect to the other: Last, at para. 40.

[37] As well, the Crown intends to play a recording of the 911 call made by E.H. after the alleged assault. While I have not heard it, Crown counsel describes it as “horrific.” This increases the risk of prejudice: Last, at para. 40.

G. Conclusion

[38] For these reasons, I am persuaded that the interests of justice require that the counts involving L.C. and those involving E.H. be severed.

III. Section 276 Application

[39] L.C. alleges that the applicant forced her to perform fellatio on him in order to “work off” her drug debt. He wishes to adduce evidence that L.C. had willingly performed sexual acts in the past in order to pay off debts to the applicant. He submits that this evidence is admissible to give context to the relationship between them.

[40] In my view, the submission made by the applicant is very similar to that which was made and rejected in R. v. Goldfinch, 2019 SCC 38 at paras. 3-4:

Here, the accused sought to introduce evidence that he and the complainant were “friends with benefits”, a sexual relationship. He argued that the sexual nature of the relationship provided important context without which the jury would be left with the artificial impression that he and the complainant had a platonic relationship, rendering consent improbable.

To be admissible, relationship evidence that implies sexual activity must satisfy the requirements of s. 276 of the Criminal Code. In my view, the evidence here did not meet those requirements. Introducing evidence of the sexual nature of the relationship served no purpose other than to support the inference that because the complainant had consented in the past, she was more likely to have consented on the night in question. It was therefore barred by s. 276(1). Nor could it satisfy the conditions of admissibility under s. 276(2). While the sexual aspect of the relationship was evidence of “specific instances of sexual activity”, it was not “relevant to an issue at trial”.

I come to the same conclusion in this case.

IV. Disposition

[41] The application for severance is granted. The application pursuant to s. 276 of the Criminal Code is dismissed.

Justice P.A. Schreck

Released: March 6, 2020.

COURT FILE NO.: CR-19-70000156-0000 DATE: 20200306 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – D.B. RULING P.A. Schreck J. Released: March 6, 2020.

[1] I heard both applications in my capacity as a case management judge appointed pursuant to s. 551.1(1) of the Criminal Code.

[2] Crown’s Factum, at para. 20.

[3] Crown’s Factum, at para. 21.

[4] R. v. Vetrovec, [1982] 1 S.C.R. 811.