COURT FILE NO.: 8127/19
DATE: 2020-09-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Karen Pritchard, Counsel for the Respondent
Respondent
- and -
C.S.G.
Kenneth G. Walker, Counsel for the Applicant
Applicant
HEARD: July 30, 2020, via teleconference
GAREAU J.
DECISION ON SEVERANCE APPLICATION
[1] This is an application by the accused to sever the counts in the indictment involving the complainant T.G. from the counts in the indictment involving the complainant K.G. The application was heard on July 30, 2020 by telephone.
[2] The Crown opposes the application to sever and wishes all counts in the indictment (Counts 1 to 6) to be tried together. The matter is back before this court on September 16, 2020 to select a trial date.
[3] By way of background, the offences allege improper sexual activity between the applicant and T.G. and K.G., while they were under the age of 16 years. Both complainants are the biological daughters of the applicant.
[4] The indictment alleges a timeframe of between January 30, 2012 and January 30, 2013 with respect to the complainant T.G., and January 1, 2010 to December 31, 2015 with respect to the complainant K.G. All incidents are alleged to have taken place in the Town of Thessalon, in the District of Algoma.
[5] Although the Crown may include any number of counts for any number of offences in the same indictment, section 591(3) of the Criminal Code of Canada gives an accused person the right to have counts severed where the court is satisfied that the interests of justice so require. As set out in the jurisprudence, the onus is on the accused to establish on a balance of probabilities that the interest of justice requires that the counts be severed.
[6] The leading case on the factors to be considered in making this decision is R. v. Last, 2009 SCC 45, 2009 S.C.C. 45. What is meant by the phrase “the interests of justice” as set out in section 591 was interpreted in R. v. Last at paragraph 16, as follows:
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.
[7] As noted in para. 17 of Last, the court is required to balance the risk of prejudice to the accused and the public’s interest in a single trial when deciding to sever counts in an indictment.
[8] Paragraph 18 of the Last decision makes it clear that the factors identified for consideration by the court on a severance application are not exhaustive as is stated, “they simply help capture how the interests of justice may be served in a particular case, avoiding an injustice”. The factors set out in para. 18 of Last to be considered by the court include,
(a) the factual and legal nexus between the counts;
(b) the general prejudice to the applicant;
(c) the undue complexity of the evidence;
(d) whether the accused wishes to testify on some counts, but no others;
(e) the possibility of inconsistent verdicts;
(f) the desire to avoid a multiplicity of proceedings;
(g) the use of similar fact evidence at trial;
(h) the length of the trial having regard to the evidence to be called; and
(i) the potential prejudice to an accused having regard to his right to be tried within a reasonable time.
[9] In the case at bar, the aforementioned factors in (c), (e), (g), (h) and (i) are really non-factors and do not come into play in deciding whether or not the severance application will be granted. The complexity of the evidence is not greater as it relates to one complainant or another, nor is there complex evidentiary issues which would favour severance. There is no similar fact evidence issue at play in this case. The trial in this case will not be lengthened by the charges continuing to be in one indictment. Two separate trials by way of a severed indictment or one trial with the six counts in one indictment will both result in a trial lasting approximately five days. The applicant’s right to be tried within a reasonable time will not be impacted by one or two trials.
[10] The applicant argues that there is no factual or legal nexus and that severance is required when considering this factor. I do not agree. The complainants are both biological daughters of the applicant. There is a time overlap in the allegations. The allegations occurred in the family home in Thessalon, Ontario within a family unit. Although the allegations against each complainant may be different, the complainants are sufficiently tied together by circumstances and the location of the events that it cannot be said that there is no factual nexus. There is sufficient essential elements in common between the counts to satisfy the test requiring a factual nexus.
[11] As to the legal nexus the defence advanced by the applicant is the same on all the counts, namely that the alleged events did not occur. It will be the position of the applicant at trial that the Crown has failed to establish the required actus reus. This is not a case where different legal issues apply to different complainants, such as consent or mistaken belief in consent. There is a sufficient legal nexus between the complainants and the offences to favour refusing a severance of the counts.
[12] In considering the overall general prejudice to the applicant, counsel for the applicant states at paragraph 26 of his factum,
A single trial has the potential for significant prejudice to the applicant. Both sets of allegations, while different in nature, involve serious misconduct that is particularly repugnant. The argument that the case is before a judge alone is irrelevant given the potential for “cross-pollination” on credibility assessments causing prejudice can be real or perceived.
[13] The court must be concerned with the risk that the accused’s right to a fair trial on the merits could be impacted by moral and/or reasoning prejudice as defined in R. v. Handy, 2002 SCC 56, 2002 S.C.C. 56 at paras. 100 and 139. These concerns were summarized in R. v. J.M., 201 ONSC 3924 at para. 8,
There is a risk of prejudice to an accused when evidence properly admissible on one count may affect the verdict on another count. Such prejudice may amount to what has been referred to as “reasoning prejudice”, that is, evidence properly admissible on one count might raise sentiments of revulsion and condemnation that deflect the trier from a rational dispassionate analysis of the case. Such prejudice might also amount to what has been referred to as “moral prejudice” or propensity reasoning, that is, evidence properly admissible on one count may lead the trier to conclude that the accused has discreditable tendencies.
[14] It is the position of the Crown that the risk of prejudice is not a factor in this case as the accused has elected to be tried by a judge sitting without a jury. Unlike juries, judges have training and experience to appropriately apply the applicable rules of evidence.
[15] Even in the case of a jury trial, it has been held that concerns about possible prejudice to the accused could be addressed by proper instructions to the jury. (See: R. v. Chaulk, 2012 ONSC 3169; R. v. R.K.M., 2012 ONSC 1040; R. v. L.S.I., 2012 ONSC 6205)
[16] If the concerns about propensity reasoning can be overcome by proper instructions to a jury, then the risk of prejudice to an accused as a result of moral or reasoning prejudice gest substantially diminished, if it exists at all, in a judge alone trial.
[17] I agree with the comments made by the Crown at paragraph 25 of its factum wherein it is stated,
While the sexual assault against T.G. involved intercourse and the sexual assaults against K.G. did not, the deviant behaviour is the same: the sexual touching of a daughter under the age of consent. There is no danger that the evidence from one of the counts would be improperly used in deciding the remaining counts. The risk of prejudice in this multi-count information before a judge sitting alone is significantly reduced, if not to the vanishing point.
[18] A careful consideration of the factual background and the nature of the allegations in this case leads me to conclude that there is no real danger that reasoning prejudice, moral prejudice or cross-pollination would be factors in this trial if severance is not granted.
[19] As to the accused wishing to testify on some counts but not on others, the applicant has indicated that he will testify on the counts relating to T.G. but a defence “may not” have to be called on the counts relating to K.G.
[20] The approach to be taken when assessing this factor was addressed by the Supreme Court of Canada at para. 27 of Last, as follows,
While an accused’s provisional intention with respect to testifying is certainly a consideration which should be given sufficient weight, it is but one factor to be balanced with all the others. An accused’s stated and objectively justifiable intention to testify on some but not all counts is not necessarily determinative of a severance application. It can be counterbalanced by other circumstances that the judge finds may prevent the accused from testifying, or be outweighed by factors that demonstrate that the interests of justice require a joint trial.
[21] In the case at bar, there is no similar fact evidence application being brought by the Crown. As stated by the Crown at para. 31 of its factum, “Given the charges against the accused and the familial relationship between the accused and both T. and K.G., the only defence position to all the allegations must be that the allegations did not happen.” A bald assertion that a defence by the accused “may not” be necessary on some counts but not others is not sufficient to favour severance when balanced against all the other factors to be considered which favour a joint trial. As the trial unfolds the applicant’s testimony on all counts may be required and the applicant, no this application, has not established a rationale for testifying on some counts but not others which weigh in favour of severance being granted.
[22] Unless it is absolutely clear that it must be in the interests of justice, multiplicity of proceedings should be avoided, especially in allegations of sexual assault where the complainants may have to testify about events more than once. This desire to avoid multiple proceedings favours a joint trial in the case at bar.
[23] In conclusion, I have considered and weighed cumulatively all of the factors. This exercise has led me to the conclusion that the balancing of these factors favours a joint trial. For the aforementioned reasons, I conclude that the public’s interest in a single trial outweighs any risk of prejudice to the accused. Accordingly, the severance application is dismissed.
Gareau J.
Released: September 1, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
C.S.G.
DECISION ON SEVERANCE APPLICATION
Gareau J.
Released: September 1, 2020