COURT FILE NO.: CR-19-50000188-0000

DATE: 20200109

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

David Tice, for the Crown

• and -

DONSON REDHEAD

Kate Zadorozhnya, for the Defendant

HEARD: December 19, 2019

RULING ON SEVERANCE

M.G.J. QUIGLEY J.

1Donson Redhead (the “Applicant”) faces thirteen charges: child luring, sexual assault and sexual interference relative to two separate under-aged complainants, A.R. and V.C., as well as five fail to comply charges, including fail to comply with a SOIRA order.

2The case against the Applicant is largely based upon the evidence of the two complainants, who are friends of each other: A.R. (13 years old at the time of the allegations) and V.C. (15 years old at the time of the allegations). It is alleged that the Applicant contacted each of them over social media sites and convinced each of them to meet with him in person.

3Both V.C. and A.R. met with the Applicant individually. In June 2017, the Applicant is alleged to have met V.C. and to have driven her to a park. While in his car, the Applicant allegedly sexually assaulted V.C. by putting his hands into her pants and by trying to digitally penetrate her vagina. Four months later, in October 2017, it is alleged that the Applicant took A.R. to his apartment, and once there, initiated sexual activity with her, which proceeded to vaginal penetration. As minors, it is obvious that neither V.C. nor A.R. were legally capable of consenting to that sexual activity.

4During the time that these charges arose, the Applicant was on a recognizance of bail from having been arrested a year earlier, on March 17, 2016, on child luring and related offences relative to some other person. The terms of his release at that time included: (i) that he not have any contact with anyone under the age of 18; (ii) that he not attend any public park where persons under the age of 16 could reasonably be expected to be present, and (iii) that he not possess any computer or device that has access to the Internet. He is alleged to have breached all of these terms by contacting both A.R. and V.C. on his cellular device and by taking V.C. to a park where he is alleged to have molested her.

5On this motion, the Applicant seeks to sever the fail to comply charges from the sexual offence charges, and also seeks severance of the sets of charges relative to each complainant. He seeks to sever the fail to comply charges on the basis that if those charges were heard by the jury it would cause him substantial prejudice, since those charges indicate that he is alleged to have committed similar offences at an earlier time and breached earlier orders. In the defence submission, this invites prohibited propensity reasoning regardless of the trial judge’s instructions.

6Crown counsel agrees that should the trial proceed with the jury, the charges relating to a breach of court orders should be severed provided the Applicant admits, which he does, that he was bound by the relevant court orders with the court alone applying the evidence heard at trial to determine whether those charges are made out.

7More importantly here, the Applicant also seeks severance of all counts relating to A.R., complainant #1, from all counts relating to V.C., complainant #2.

8First, he claims there is lack of factual and legal nexus between the counts because the two sets of charges are said to deal with separate events with little overlapping evidence. To the extent that the evidence may overlap, defence counsel claims that the inconvenience to the young witnesses from having to testify twice at two separate trials is outweighed by the potential prejudice to the Applicant in having all counts proceed together.

9The defence also argues that proceeding with all counts together leaves the Applicant susceptible to an unfair trial because there is a danger that the jury will use the evidence from one set of charges to improperly bolster the evidence for the other. Defence counsel asserts that this risk is enhanced because while she claims the evidence for V.C. is very slim, V.C. will also be testifying as a witness in the trial relative to A.R., in addition to being a complainant in her own right. This allegedly creates the danger that the jury may believe her as a witness, and improperly use that to believe her as a complainant. Finally, counsel asserts that the Applicant has not yet made the decision whether he wants to testify at his trial and it is possible that he may wish to testify on one set of charges but not the other. This would not be possible if all charges were to proceed together.

10Crown counsel strongly resists the Applicant's claim for severance as between the two complainants on the basis that it is contrary to the interests of justice. Contrary to the defence contention, he argues that there is a very strong factual nexus between the charges. This is particularly so given that A.R. disclosed her sexual assault to V.C., which in turn led V.C. to disclose her own sexual assault by the same person to A.R. Further, the sequence of the events of all of these charges is inextricably tied together. Were the counts to be severed as requested by the Applicant, the same trial would need to be conducted twice, requiring two vulnerable child complainants to suffer the inevitable trauma of testifying twice on child luring, sexual assault and sexual interference allegations.

11In my view, that would not be in the interests of justice, and any potential prejudice to the Applicant can be addressed by well-known instructions to the jury of how they may make use of the evidence. In the result, the fail to comply charges will be severed and a new indictment prepared excluding those charges. However, the application for severance of the charges relating to the two complainants must be denied. This is plainly a strong case for the sets of charges to be heard together, with the evidence inextricably intertwined between the two complainants. To grant severance would be contrary to the interests of justice, for the reasons enumerated below.

Background Facts

12At the time of the allegations, the Applicant was 23 years old. He was born on December 12, 1993. As noted above, at the time these events are alleged to have occurred, he was on a recognizance of bail due to earlier charges. Those charges were resolved on January 7, 2018 when he pleaded guilty to attempted sexual interference and received a 90-day jail sentence and two years of probation. He was ordered to report to SOIRA for 10 years.

13As the narrative shows, while A.R. was the first to provide a statement to the police and is named as complainant #1, the alleged assault against V.C. actually occurred four months previous.

14A.R. provided a police statement on March 6, 2018. She was 13 years old and a grade 8 student when she met the Applicant online over Snapchat in June 2017. The Applicant identified himself as “Peso.” He told her he had seen her at the bus stop and wanted to be friends. They continued to communicate for a few months of using Snapchat, both by text and video messages, and FaceTime.

15In October 2017, A.R. contacted the Applicant asking for a ride. He picked her up along with a friend in order to drive them to a school. After picking them up he drove them to a school, but the Applicant dropped off A.R.’s friend at her home, and then instead of taking A.R. home, as she asked, drove to his apartment near Jane Street and Trethewey Drive. A.R. followed him into his apartment, where he offered her a drink of an alcoholic beverage. She only consumed a small amount. He began to touch her, but A.R. told him to stop.

16He persisted and eventually carried her into his bedroom and had vaginal intercourse with her. She felt frozen but recalls telling him to stop and that it hurt. She described the assault as lasting for 1/2 hour, during which she was screaming in pain and telling him to stop. She asked him what he was doing because she was only 14 years old and he was more than 20 years old. He admitted to her that he was 20 and that he knew that she was 14. At that point he stopped the assault.

17After the assault, the Applicant and A.R. got dressed and he drove her home. The evidence shows that he admitted to A.R. that he had previously been arrested for making arrangements to have sex with a 15-year-old girl.

18He continued to try and contact her over the Internet, but A.R. refused any requests to meet. His persistent communication to her made her feel scared in her own home. Shortly after the assault, A.R. advised her close friend, V.C. about what had occurred. It was at that point that V.C. shared with her that she also had met "Peso" over the Internet. V.C. told A.R. that she had met him, and that he had also touched her sexually. After the assault, A.R. saved Snapchat messages of communications that she had with the Applicant, copies of which were produced as exhibits on the application.

19A.R. provided police with access to her Snapchat account, with a photo of "Peso" that he had sent her, and also the messages that she had exchanged with him about the unwanted sexual contact. The photographs in that exhibit clearly identify the Applicant from the video evidence provided to the police. Further, in that text conversation, the Applicant does not deny sexual contact with A.R., but instead lies about his age when he is confronted by the fact that he is over 20 years old.

20V.C. also provided her statement to the police on the same day as A.R., March 6, 2019. She described to the police how A.R. had disclosed her sexual assault to her. She described that disclosure in a manner consistent with the description provided by A.R. Further, V.C. stated that it was she who had initially provided the Applicant with A.R.’s contact information, and that this was likely how the Applicant was first able to contact A.R.

21V.C. was 15 years old when she met the Applicant in May 2017 on Instagram. They communicated online for about a month. The Applicant was pushing her to get together with him. In June 2017, he picked her up and a friend of hers while she was at a school barbecue. He drove the friend home so that he and V.C. could be alone. He drove around for a bit touching her thigh as he was driving, but she pushed his hand away. After further driving, they ended up in a park near Lawrence Avenue and Caledonia Drive and he parked the car.

22The Applicant made V.C. sit on his lap in the car and he tried to kiss her but she did not want to participate. He aggressively put his hands down her pants trying to touch her vagina and digitally penetrate her while V.C. tried to get his hand away. He was able to touch her vagina several times. She threatened to call the police if he did not stop so he did, but he then started trying to kiss her again and trying to get his hands down her pants. She pleaded with him to let her out of the car and eventually he did. She was visibly upset shaking and crying. After the event, the Applicant drove her home.

23As in the case of A.R., after the assault the Applicant continued to try to contact V.C. over Instagram, but she did not want any further contact with him and blocked his account. Police investigators showed V.C. images of the Applicant and she confirmed that that was the male that she knew as “Peso”, described in her statement.

24It is important in this severance application to make specific note of the fact that both A.R and V.C. are exceptionally vulnerable young women owing to the alleged assaults that they were subjected to. There is no need to detail the extent of their trauma at length in this ruling. It will suffice to say both are extremely fragile, with A.R. having suicidal ideations and suffering from Post-Traumatic Stress Disorder, and V.C.’s life having changed permanently in other ways. Their circumstances will likely require both complainants to testify using closed-circuit television under s. 715.1 of the Criminal Code when their evidence is presented. This is a factor that weighs strongly in favour of denying the Applicant’s request for severance because it would force these two vulnerable young women to testify to the same matters at two separate trials.

25It is noteworthy that the strength of the Crown's case is also bolstered by the presence of the digital evidence found on the Applicant's own cell phone. There is evidence on that cell phone account that connects the Applicant through cellular communications with both A.R. and with V.C. The Crown will take the position at trial that the cell phone download of the Applicant's phone and the SIM card contains, and will provide cogent evidence that confirms the accounts of both A.R. and V.C.

26Finally, there are two further issues that ought to be taken into account on this application. First, following his arrest on March 7, 2018, the Applicant spoke to police and denied any involvement in the offences alleged. However, he continued speaking to police and he made multiple statements that are now known to be provable lies, which the Crown intends to rely upon at trial as evidence of post-offence conduct. The Applicant stated to investigators that he does not use social media other than a Facebook account that he does not use, when the evidence clearly shows that he does. He specifically denied having a Snapchat account. He denied knowing anyone with the name of A.R. However, those statements are all demonstrably false and provable as lies by the evidence uncovered on his cell phone. Crown counsel will seek a ruling at trial relative to the voluntariness of that statement to the police.

27Second, the Crown will seek a similar fact instruction to the jury at the end of the trial, which, if permitted, would allow the evidence on the allegations made by each of the complainants to support the credibility of the other. Crown counsel will argue that the allegations are sufficiently similar in nature, particularly by the Applicant's use of social media to lure each complainant to sexually assault them on their first meeting and the approximate ages of the complainants. While the test on a similar fact application is different than that on an application for severance, it is important that at least facially, the facts presented on this application seemed capable of supporting a similar fact ruling and instruction at trial.

Applicable Legal Principles

28Under s. 591(3) of the Criminal Code, an accused person may bring a motion to sever charges in order to have them heard at separate trials. The Criminal Code provisions and the case law show that I have broad discretion to order that counts be severed and tried separately, if the interests of justice require it. The onus to establish that they do rests on the Applicant to a balance of probabilities standard.

29The key principles to be weighed in deciding whether the “interests of justice” require severance are summarized in the leading Supreme Court of Canada decision R. v. Last.¹ At para. 16, Deschamps J. stated that 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.”²

30At para. 44, Deschamps J. emphasized that trial Judges need to weigh and evaluate “all the relevant factors to determine whether the interests of justice require severance”, and provided a list of factors, that while admittedly not exhaustive, assist trial judges in evaluating how the interests of justice may be served in any particular case in order to avoid injustice:

(i) The general prejudice to the accused;

(ii) The legal and factual nexus between the counts;

(iii) Whether the accused intends to testify on one count but not the other;

(iv) The possibility of inconsistent verdicts;

(vi) The desire to avoid a multiplicity of proceedings;

(vii) The use of similar fact evidence at trial;

(viii) The potential prejudice to the accused with respect to the right to be tried in a reasonable time; and

(ix) The existence of antagonistic defences as between co-accused persons.³

31In the paragraphs that follow I address the factors that are relevant in this case and that have persuaded me that it would not be in the interests of justice to grant severance in this case, at least as between the two complainants.

(i) General Prejudice

32The Applicant focuses first on the prospect of being caused prejudice if there were not two trials held in this matter, but I find that there is no general prejudice to the Applicant here. The existence of a factually strong Crown case does not constitute prejudice. The presence of evidence that increases the likelihood of conviction does not equate on its own to prejudice. In R. v. B.L.,⁴ Charron J.A., as she then was, adopted the definition of prejudice stated by Prof. Delisle:

Prejudice in this context, of course, does not mean that the evidence might increase the chances of conviction but rather that the evidence might be improperly used by the trier of fact. It is one thing for evidence to operate unfortunately for an accused, but it is quite another matter for the evidence to operate unfairly. The trier who learns of the accused's previous misconduct may view the accused as a bad man, one who deserves punishment regardless of his guilt of the instant offence and may be less critical of the evidence presently marshalled against him.⁵

33In this case, the evidence is closely tied together. If the charges were to be severed, it would be necessary for both A.R. and V.C. to testify at each of the respective trials. The Applicant relies on two decisions, R. v. A.D.⁶ and R. v. F.S.⁷ in support of his position. In my view, however, those are very different cases from this case.

34In F.S., the court held that there were significant differences in the relationships between the two complainants and the accused. One was an otherwise consensual sexual relationship with the accused, but the other involved a parent-child relationship. The evidence on each of the separate allegations was led largely through the same witness/victim, that is, the mother. The court granted severance out of concern that the jury would rely heavily on their credibility assessment of her and possibly transfer that assessment to each case. However, those are very different from the circumstances present here.

35Neither is this a case with facts similar to those in A.D. In that case, there was a confession made by the accused relative to one complainant. The court granted severance for obvious reasons. The confession was admissible and would be significant evidence indicative of guilt relative to one charge, but would have otherwise been inadmissible on a separate trial in relation to the other complainant. There is no similarity between those facts and the intertwining of the evidence here.

36In R. v. Litchfield,⁸ the Supreme Court of Canada held that a trial judge acted injudiciously in severing counts where that had the effect of requiring complainants to testify repetitively. Justice Iacobucci stated:

The division and severance order worked an injustice towards the Crown, the complainants and the administration of justice in that it placed an artificial barrier to the trial judge’s ability to consider the respondent’s conduct in all of the circumstances.⁹

37In my view, the principles in Litchfield apply with force in this case. These two complainants are vulnerable and the prospect of both of them being called upon to testify at two consecutive trials is neither required nor appropriate.

38Finally, relative to prejudice, I reject the Applicant’s allegation of prejudice due to his claim of “late disclosure on V.C.’s case” such that the trial may be “derail[ed]”. In fact, V.C.’s allegation came to light in the only statement that she gave to police, which was on March 6, 2018, the very same day that A.R. gave her sole statement to police. The only delay, which is not material in my view, arose as a result of the exercise of Crown/police discretion in choosing to lay the charges relative to V.C. at a later point in time.

(ii) Factual Nexus

39Turning to the next factor, it is plain that the factual nexus between the charges is strong. This is not a case like Last where the only factual connection was that the offences occurred in the same city and within a month of each other. Here, not only were the alleged offences ongoing and overlapping, especially the charges of child luring, but there is also significant overlap in the evidence that is likely to be called. The evidence that is common in respect of both sets of complaints made against the Applicant is largely admissible against the accused on all charges. That evidence includes the following:

(i) The complainants are not only friends, but they are also disclosure witnesses to each others’ respective complaint against the Applicant;

(ii) The Applicant was able to contact and meet A.R. due to the fact that V.C. shared A.R.’s contact information with the Applicant;

(iii) The timeframe of each set of allegations overlaps. It is alleged that the Applicant was committing the luring offence in relation to both complaints during the month of June 2017, which is the same month that the sexual assault/sexual interference charge against V.C. is said to have occurred;

(iv) The evidence gathered from the Applicant’s cell phone is relevant and admissible against him on both sets of complaints;

(v) The Applicant’s statement to police, which are claimed to be provable lies, is relevant as against the Applicant on both sets of complaints;

(vi) There is the potential for a similar fact instruction here as the allegations are similar in nature; and

(vii) Although not yet received, it is anticipated that if the evidence coming from Snapchat is available, it would be relevant to both sets of charges as the Applicant used Snapchat to contact both complainants.

40In R. v. E.S.,¹⁰ MacPherson J.A. emphasized that where the disclosures of the allegations are made together, that factor will tend to weigh against severance, and on its own will often be strong enough to demand that a joint trial be held. In that case, the Court of Appeal held that the applications judge was correct to refuse severance in a case where the disclosure of historical complaints came about jointly.

41In my view, this is a similar case in that the factual nexus weighs heavily against severance. The facts connecting both complainants and the Applicant are so intertwined here that they call out to be heard in one trial. In my view, it would be against the interests of justice to have two separate trials here as this would force the complainants to testify twice and the Crown would be calling largely the same body of evidence on both trials.

(iii) Likelihood of the Applicant Testifying at Trial

42In determining whether there is a basis for an accused to testify on some counts but not others, a trial judge must be satisfied that the circumstances objectively establish a rationale for testifying on some counts but not others, and the burden is on the accused to provide sufficient information to convey that, objectively, there is substance to his testimonial intention. That information could consist of the type of potential defences open to the accused or the nature of his testimony, but an accused’s intention to testify (even where objectively justifiable) is not determinative of a severance application.¹¹

43In my view, the Applicant’s stated intention is not objectively justifiable. It is stated that “it is possible that he may want to testify in one but not the other” case. I agree that the Applicant does not need to assert a specific desire to testify to make out an application for severance, but I find that this factor cannot weigh towards severance on the facts of this case. These are not allegations that can be met with different defences. Moreover, due to the age disparity between the Applicant and the complainants, a consent defence is not legally available. It is more likely that the defence here will be a denial of the events and an attack on the credibility of each of the complainants. As such, I find there is no objective reality to the Applicant’s claim.

(iv) Complexity of Evidence and Inconsistent Verdicts

44In this case, the intertwining complexity of the evidence weighs against severance. Severing the charges would do nothing to simplify the proceedings. The facts of the case are so tied together that, as I have indicated, the trier of fact would be required to hear all of the evidence in order to make the critical credibility analysis in relation to the complainants in each case.

45Moreover, the possibility of inconsistent verdicts strongly weighs against severance here. As stated previously, should the complaints be severed it would be necessary to have the complainants testify twice. Additionally, the focus of the defence seems likely to be the credibility of the complainants, and certainly, I would expect that the defence will pursue collusion as an avenue of attack against both A.R and V.C. As in R. v. Racco¹² and E.S., above, the likelihood for a consistent defence is a factor that weighs against severance.

(v) Avoiding a Multiplicity of Proceedings

46In my view, this factor also weighs very strongly against severance. This application would require the witnesses to testify twice, and the bulk of the other extrinsic evidence is relevant to both allegations. Therefore, this factor also weighs against severance As I continue to emphasize, I find that it would work an injustice against these young vulnerable complainants if they were required to testify to the same traumatic events twice. It is unnecessary from an evidential perspective and can only serve to re-traumatize them. Further, it would be necessary to run essentially the same trial twice. This would greatly lengthen the amount of time required to complete the prosecution and the expense of limited resources without the evident presence of any demonstrable need.

(vi) Use of Similar Fact/Prior Discreditable Conduct Evidence

47The Crown will seek a similar fact jury instruction at the completion of its case. There is a degree of similarity between the complaints here as both complainants met the accused due to him contacting them over social media, their ages being approximate to each other, and the fact that the accused is alleged to have sexually assaulted them on the first time they met in person. Further, the timeframe is connected as the child luring conduct overlaps with the sexual assaults. Again, this factor weighs heavily against granting severance.

48A similar fact application obviously cannot be considered in full at this stage, but where there is a reasonable basis to bring such an application, appellate guidance shows it ought to be considered on the severance application. In R. v. S.J.,¹³ a trial judge refused to grant severance in part because of a proposed similar fact application, but then dismissed that application at the conclusion of the trial. The Court of Appeal dismissed an appeal and concluded that there was no error in the trial judge’s decision not to sever:

He [the trial judge] properly considered the potential admissibility of the similar fact evidence in deciding whether to sever counts. The fact that the trial judge, after hearing all of the evidence and applying a very different standard of admissibility, determined that the similar fact evidence motion would be dismissed for the most part does not impact on the correctness of the severance ruling.

49However here, unlike on the similar fact application itself, the burden of persuasion is on the Applicant. Whether a similar fact application is ultimately granted is of no moment if at the severance stage it at least appears on the facts as known that such an application could potentially succeed. In my view that is the case here and I find that this weighs against severance.

(vii) Balancing of Factors and the Interests of Justice

50Finally, I come to the ultimate question, which requires me to balance the factors and consider whether it would be in the interests of justice to sever the charges relative to A.R. and V.C. In weighing all of the foregoing factors, as is plain from these reasons, I have found that they all weigh against severance. Severance in this case would not only impair trial efficiency, but more importantly, the truth-seeking function of the trial, and I find it would do great injustice to these two vulnerable and traumatized complainants to be required to testify twice: see Litchfield, above.

Conclusion

51I believe that the jury, properly instructed, will be able to consider each of the two sets of charges separately in terms of determining whether the Crown has established the facts and law necessary to make out the offences beyond a reasonable doubt relative to each of A.R. and V.C. Further, while it is of less significance as a factor in this matter, in a time of limited judicial resources I can find no justification to hold two trials arising out of essentially the same series of events, or to inconvenience twice the number of members of the public by conducting two separate jury trials with respect to each of the separate sets of charges.

52For all of the foregoing Reasons, as I advised counsel the conclusion of this hearing, the motion of the accused to sever the charges is dismissed.

Footnotes

1. 1R. v. Last, 2009 SCC 45.
2. 2Ibid., at paras. 16-18.
3. 3Ibid., at para. 44.
4. 4R. v. B.L. (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.), rel’d on in R. v. R.E.M., [2004] B.C.J. No. 1848 (B.C.S.C.). See also: R. v. Rose, 1997 2231 (ON CA), [1997] O.J. No. 1947 (C.A.).
5. 5Ronald Delisle, “Three Recent Decisions of the Supreme Court of Canada Affecting the Law of Similar Fact Evidence” (1992), 16 Prov. Judges J. 13 at p. 15.
6. 62019 ONSC 2479.
7. 7(1995), 1995 8951 (ON CA), 83 O.A.C. 76 (Ont. C.A.).
8. 8R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333.
9. 9Ibid at para. 33.
10. 10R. v. E.S, 2000 3240 (ON CA), [2000] O.J. No. 405 (C.A.), at paras. 15-18.
11. 11R. v. Last at para. 26 and 27.
12. 12R. v. Racco (No. 1), (1975), 1975 1512 (ON SC), 23 C.C.C. (2d) 201 (Ont. Co. Ct.).
13. 13R. v. S.J., 2017 ONCA 492 at para. 4.