ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
JACOB HOGGARD
Jill Witkin and Kelly Slate
for the Crown
Ian Smith and Amy Ohler
for the Applicant
HEARD: August 17, 2020
PUBLICATION BAN
There is a publication ban under s.486.4 of the Criminal Code in relation to any information that could identify a witness. There is also a publication ban under s.648 in relation to any portion of the trial at which the jury is not present. Finally, the publication ban under s.539 on evidence from the preliminary inquiry remains in effect.
APPLICATION FOR SEVERANCE
1The applicant, Jacob Hoggard stands charged, on a single indictment, with sexual assault causing bodily harm to two different young women, MB and JB, in the fall of 2016. He is also charged with sexual interference of MB the previous spring, when MB was 15 years old. The applicant's trial is scheduled to begin in January of 2021. He brings an application to sever the counts as they to relate to each complainant. I have been appointed as the case-management judge, pursuant to s.551.1 of the Criminal Code, to decide the application.
2The applicant recognizes that the Crown has a broad discretion to join different counts on the same indictment, but he argues that to do so in this case is highly prejudicial to him. In particular, he argues that MB's young age, 15 at the time of the alleged sexual interference, and 16 at the time of the alleged sexual assault, and the circumstances in which he met MB, and arranged for her to meet him in his hotel room, suggest bad character on his part, only relevant in relation to the MB counts. There is a significant risk of moral prejudice if all that evidence is also before the jury considering the allegations by JB, who met Mr. Hoggard on Tinder when she was 22, and they agreed to meet for sex. Not only is the risk of prejudice significant, but it is not necessary, as there is no good reason to try the counts together: there is no factual or legal nexus between the counts, and the allegations and the circumstances giving rise to them are significantly different such that the Crown does not have a viable similar fact application. In short, there is nothing to be gained by a joint trial, but much to be lost.
3The applicant rejects the possibility of severing the sexual interference count as a solution, explaining that the Crown will introduce the circumstances leading up to MB meeting the applicant in his hotel room as part of the background to the sexual assault allegation by MB, regardless of whether the sexual interference count is included.
4The Crown takes a different view of the evidence and argues that there is potential factual overlap between the two complainants, and certain legal overlap. Moreover, the Crown argues that the allegations and circumstances are similar such that it has a viable similar fact application. To sever the charges would force the Crown to call each complainant again at the separate trial of the other in pursuit of its similar fact application, or substantially weaken the Crown case by forcing it to abandon a powerful evidentiary tool properly at its disposal.
5Based on the record before me at this stage of the proceedings, I am satisfied that it is in the interests of justice to keep the allegations of the two complainants together on the same indictment. What follows are my reasons for this conclusion.
The allegations
6I set out the allegations of each complainant in detail because it is important to understand the anticipated evidence in order to properly analyze both the prejudice of trying the allegations together, and the viability of the Crown's proposed similar fact application.
MB's allegations
7MB loved the band Hedley since she was about 5 years old. She first went to see the band live when she was about 10. She recalled the singer, the applicant, Jacob Hoggard, singing directly to her from a catwalk while she sat on her father's shoulders. In June of 2013, for her thirteenth birthday, her family travelled to Kirkland lake to see the band in concert. Her family happened to be staying in the same hotel as the band, and they bumped into each other. The band invited her family to party with them in the parking lot, which they did. The applicant kept making comments to MB like "contact me when you're 18". The applicant gave MB's father his telephone number and invited the family to visit them back stage at other concerts, which they did.
8MB's parents split up when she was in grade 8, and MB lived with her mother, who became the point of contact with the applicant. At some point MB copied the applicant's number from her mother's phone. At a concert in Barrie, in late 2015 or early 2016, for which MB's mother had purchased backstage passes for a "meet and greet", MB saw the applicant and he recognized her. She whispered to him that she had his number. He told her she should use it.
9MB began communicating directly with the applicant around February of 2016, initially with text, but then also Snapchat. MB recalled that the applicant told her she was gorgeous, and he would like to take her to his cabin in the woods in British Columbia where he writes his songs, and someday have children together. The applicant asked MB to send him nude photographs of herself, telling her things like "I miss your boobs" and "I miss your butt". She complied. The applicant sent MB a photograph of his penis, and a video of himself masturbating.
10The applicant invited MB to come to the ACC in Toronto on April 29, 2016, but told her he wanted her to come with friends, not her parents. The applicant sent a limousine to Barrie to pick up MB and two of her friends and bring them to the concert. MB and her friends went to the afterparty when the concert was over. While there, Evan, the band's manager, texted MB and said the applicant would like to see her in his dressing room. MB and her two friends were taken to the applicant's dressing room. The applicant hugged MB, grabbed her butt, and swung her around. MB and her friends took photographs with the applicant. When they did, the applicant slowly moved his hand down her back and grabbed her butt. MB pushed his hand away, but he continued to grab her butt. He also tried to kiss her neck. After MB left for home, the applicant texted her that he wished she could have stayed the night.
11The applicant invited MB to spend a day with him sometime when the band was in Toronto. MB thought that they would have lunch together, and perhaps go shopping or sight-seeing, possibly with the entire band. They originally planned to do this in the summer of 2016, but the applicant cancelled because he had a meeting. They eventually re-scheduled for Friday, September 29, 2016. The applicant sent a limousine to pick up MB. She did not know Toronto roads so was surprised when they arrived at a hotel at the airport. The applicant met MB in the lobby and brought her to what turned out to be his hotel room, telling her to step in for a minute.
12MB entered and walked to the window, which had a view of planes taking off and landing. The applicant came up behind MB and grabbed her and began kissing her aggressively. His breath smelt awful; like a mixture of weed and cigarette smoke. The applicant pushed MB back on the bed, landing on top of her. He used his body to hold her down while he took off her clothing. He kept calling her awful names, like "you're such a little whore"; "you're mine now"; "I'm doing whatever I like to you"; "you dirty little slut". At one point she was refusing and trying to push him away and he got on top of her chest and pinned her arms with his legs so she couldn't move. He kept telling her to say things like "you are mine". She was crying, not answering. The applicant slapped her, put his fingers in her mouth, and then spit in her mouth. He spit in her mouth about three times. He ejaculated on her face. She also had semen on her stomach and her back. He kept penetrating her vaginally, and also trying to force anal sex. His penis would not go in, so he used his fingers to penetrate her anus while continuing with vaginal sex. MB kept telling him to stop. He grabbed her by the hair and shoved her head down to his penis so she could not breathe. She was crying and gagging. Then he would pull her up and say things like "you dirty little slut this is what you get". He kept shoving her face into the sheets and pillows so she couldn't breathe. Every time she would get away he would grab her legs and pull her closer.
13The wall next to the bed was a huge mirror, and MB could see herself crying as the applicant had sex with her. She estimated that the applicant ejaculated about 3 times, but never inside her. At one point when he was inside her, MB said you are not wearing a condom. He said something like "trust me I'm not new at this" or "I'm not an amateur".
14When the applicant finally stopped, he said he would get a towel. When he did that, MB got dressed and texted her friend, asking her to call and act like her manager. Her friend called and MB pretended she was being called into work. The applicant called for a car to pick her up and walked her to the lobby. The applicant hugged her and told her he could not wait to see her again. The applicant called her several times on the way home. She did not answer. The applicant texted MB and asked if she was ok, and whether she had arrived home safely. MB did not reply and blocked his number.
JB's allegations
15In early November 2016 JB "matched" with the applicant on Tinder and received a message from him. JB was 22 at the time, living and going to college in Ottawa. They discussed the fact that they were both involved with a "We Day" event in Ottawa the next day; JB as a volunteer, the applicant as a performer. The applicant added JB on his Snapchat so he could show her who he was, and they continued to communicate on Snapchat. The next day, the applicant invited JB to go to the "green room" where the performers congregated. JB did not end up going. They continued to communicate on Snapchat, and the applicant sent JB photographs of his penis and a video of himself masturbating in an airplane washroom. The applicant asked JB if she would come to Toronto when he was there to hang out and have sex. He offered to purchase a train ticket and she accepted. The applicant sent JB a same-day return train ticket to Toronto for November 22, 2016.
16JB got up at 5 am to take the train to Toronto. Upon arriving in Toronto, she freshened up in a washroom and then took an Uber to the applicant's hotel. He met her in the lobby and took her to a room, explaining that it was not his regular room. Once inside, the applicant pushed her against a wall and kissed her. JB told him she was uncomfortable, and the applicant backed off. He told her she was "all talk" and could "just go" if she wanted. The applicant was drinking "Lean", which he explained was codeine. He appeared high or drunk, and offered her a sip. He was docile in that room. He did not talk much, and they just watched TV. After about an hour, someone knocked and advised that the applicant's room was ready. The applicant went first, telling JB to follow so no one would see her.
17As soon as they were alone in the second room, the applicant pushed JB face down on the bed and pulled off her pants and began to have anal intercourse with her. He did not wear a condom. She was crying. She told him no, and that he was hurting her. He kept telling her to shush, that it would be over soon. She could not remember the exact sequence of events but recalled the applicant telling her she was being a good girl, and petting her head. Either just before or after the initial anal rape, the applicant took JB's cell phone, telling her he had to take it because too many girls took pictures of him and posted them on the internet. The applicant would anally rape JB and then try to stick his penis in her mouth after, while she was crying. He also vaginally raped her. At one point the applicant dragged JB by the legs into the bathroom and screamed at her to pee on him. He raped her again and started to choke her by putting his hands around her neck. There was a long mirror over the bed and JB remembered seeing her face turn bright red and thinking she was going to die. The applicant slapped her in the face a couple of times and kept spitting on her. He told her she was a "dirty little pig" and made animal noises at her. He kept grabbing her face and trying to open her mouth and spit in her mouth.
18JB recalled being raped a total of 4 or 5 times. She was too scared to scream. She did not know whether the applicant ejaculated, but if he did it was not inside her. The applicant told JB he had a vasectomy. Eventually he told her he had to do an interview, and there was a cab waiting out front for her.
19Shortly after JB left, the applicant texted her that they had a great day together and he missed her and could not wait to see her when he was in Ottawa. She did not respond until a couple of days later when she called him and told him he sexually assaulted her. The applicant said he did not know what she was talking about because they had a great day together. That was the last time they spoke.
The test for severance
20For offences other than murder, s.591 of the Criminal Code provides the Crown with a broad discretion to join counts charging different offences in the same indictment. This discretion is subject to review by a trial judge, who may order that one or more of the counts be severed where "satisfied that the interests of justice so require". Such an order may be made before or during trial.
21A significant body of appellate jurisprudence has interpreted the "interests of justice" test for severance. It is well-established that the test requires consideration of both an accused's interest in a fair trial, on admissible evidence, considered from his or her perspective, and society's interest in fairness, efficiency and protecting the "truth-seeking function of the trial", considered from a broader perspective. Courts have identified the following non-exhaustive factors to consider and weigh in order to strike a "reasonable balance" between these two, sometimes competing, interests:
General prejudice to the accused as a result of the influence of the volume of evidence adduced and the effect of verdicts across counts;
The legal and factual nexus between or among counts;
The complexity of the evidence;
The desire of the accused to testify on one or more counts but not on another or others;
The possibility of inconsistent verdicts;
The desire to avoid a multiplicity of proceedings;
The use of evidence of similar acts;
The length of the trial;
Prejudice to the accused's right to be tried within a reasonable time; and
The existence or likelihood of antagonistic defences.
See R. v. Last, 2009 SCC 45; R. v. Jeanvenne, 2010 ONCA 706; R. v. Durant, 2019 ONCA 74 at paras.66-79.
Application of the test to the circumstances of this case
General prejudice to the accused as a result of the influence of the volume of evidence adduced and the effect of verdicts across counts
22The applicant’s concern in this case is not with the volume of evidence, but its nature: not only does the bad character evidence that will be part of the Crown's proof of the counts involving MB have no role to play in the case involving JB, but the charges involving MB are more serious. The defence argues that both concerns give rise to a significant risk of moral prejudice. The bad character evidence is anticipated to include the fact that the applicant arguably groomed MB through the exchange of sexual messages and images, met her back stage where he kissed her and touched her buttocks when she was 15 (giving rise to the charge of sexual interference), and deceived her into meeting him alone in his hotel room when she was 16. The applicant argues that, as with the second murder count in R. v. Jeanvenne, and the off-indictment similar fact evidence in R. v. Handy, 2002 SCC 56, trying the allegations of the two complainants together gives rise to an unacceptable risk of moral prejudice.
23Moral prejudice includes both the risk that the trier will engage in prohibited propensity reasoning (that an accused has a general propensity to engage in the kind of conduct at issue) and seek to punish the accused because he is generally a bad person, or has done bad things: R. v. Handy, at paras.37-40, 137-142 The applicant does not suggest that the aspects of the MB allegations I have described above give rise to a concern about the jury engaging in prohibited general propensity reasoning. Rather the applicant is concerned about the jury being pre-disposed to punish the applicant because of these bad acts, and/or because they suggest he is a bad person.
24There is no question that the MB allegations give rise to some risk of moral prejudice in relation to the JB count. But when I consider all the circumstances, I do not agree that the risk amounts to unacceptable poison. The alleged conduct involving grooming, groping and deceiving MB is unquestionably reprehensible, but it pales in comparison to what is alleged to have happened when the applicant was alone in a hotel room with each complainant. It is manifestly different than the situation in Handy, for example, where the off-indictment similar fact evidence was considerably worse than the conduct forming the basis of the charge. As Justice Binnie explained, "The jury would likely be more appalled by the pattern of domestic sexual abuse than by the alleged misconduct of an inebriated lout in a motel room on an isolated occasion." The same is not true in this case.
25I do not think the fact that MB was only 16 when she met the applicant alone in his hotel room, in comparison with JB, who was 22, significantly changes the calculation. The applicant notes that s.718.2 of the Criminal Code would explicitly treat MB's young age as an aggravating factor on sentence, reflecting society's condemnation of the sexual abuse of young people. The Crown counters that MB was of age at the time of the alleged sexual assault, and indicates that the Crown does not intend to request any of the protections that the Criminal Code would potentially provide MB while she is testifying, such as a screen or CCTV, and the jury will not know that her age is an aggravating factor on sentence, in the event of a conviction. I agree with the applicant that the Criminal Code reflects society's desire to protect young people, and denounce the abuse of young people, and that this means that the MB count of sexual assault is more serious than the JB count. But this is a question of degree. It does not fundamentally change what is alleged to have happened in each hotel room, which is roughly equally serious. I am satisfied that the jury will understand that what happened in each hotel room is the focus of the trial. I do not believe that the jury will be improperly distracted from this task by the fact that one complainant was only 16, and was arguably groomed and deceived leading up to the alleged attack. In short, while a jury might think very ill of the applicant for groping MB, and engaging in sexually explicit and deceiving communications with her, this conduct would not suggest he is a rapist, or incline the jury to convict him of rape because they were so put-off by this conduct.
The legal and factual nexus between or among counts
26The core of the Crown's case with respect to each complainant rests with the evidence of each young woman. There are a few fact witnesses relevant to each complainant who are anticipated to provide some confirming details, such as with respect to timing and injuries and the fact that each complainant was upset after meeting alone with the applicant. These fact witnesses do not overlap as between the complainants.
27Chris Crippen, who was a drummer for Hedley and toured with the band, can apparently testify that the applicant sent him a video of the applicant masturbating in an airplane washroom. This can provide some confirmation for the evidence of both complainants that the applicant sent each of them a similar video. The applicant indicates that it is not contentious that he sent such a video to each complainant, and he expects that the matter can and should be dealt with by way of an agreed statement of facts, obviating the need for Crippen's evidence, and the gratuitous embarrassment it would bring.
28The only significant potential overlapping witness is Dr. Lori Haskell, a clinical psychologist with expertise on neurobiological and behavioural responses to sexual assault. The Crown does not propose to elicit an opinion from Dr. Haskell about the evidence in this case, but rather to have Dr. Haskell describe the research on neurobiological and behavioural responses to sexual assault, and explain diversity and commonalities in victim responses to sexual assault, in order to assist the jury in understanding the evidence in this case. The admissibility of Dr. Haskell's evidence is currently scheduled to be considered at a pre-trial voir dire in December. The applicant asserts that the evidence is not admissible, but, in any event, it would only be relevant to JB, who stayed with the applicant until he asked her to leave, despite repeated opportunities to leave. MB, on the other hand, alleges she was pinned down almost the entire time.
29I do not agree that Dr. Haskell's evidence is potentially relevant only to JB. There are also aspects of MB's evidence which are difficult to understand, for example, her evidence that when she had a chance to use her cell phone she did not call 911, or seek help directly, rather she called her friend and asked her friend to call back and pretend she was MB's manager from work. When MB's friend called back, MB pretended she was being called into work and she had to leave. Without argument on the admissibility of Dr. Haskell's evidence, however, I do not propose to put weight on Dr. Haskell's evidence. And the Crown, fairly, does not ask that I do.
30But regardless of the potential admissibility of Dr. Haskell's evidence, I think there is a legal nexus between the two counts of sexual assault causing bodily harm beyond the elements of the offence. For both sexual assaults the essential issue and defence is expected to be the same: consent, and possibly the defence of honest but mistaken belief in communicated consent. These are difficult issues. There is economy in educating only one jury about them, as opposed to having to educate two separate juries at two separate trials.
31Moreover, whatever jury considers the allegations of sexual assault will have to be instructed on how to evaluate the evidence of each complainant. At a minimum this will include the R. v. D.D., [2002] 2 S.C.R. 275 at para.65 instruction that there are many reasons why a victim of sexual assault may not disclose right away, or at all; thus the timing of disclosure is just one circumstance to consider in assessing the credibility of a complainant, and delayed disclosure, standing alone, is not significant. In addition, the instruction will likely also include a caution, consistent with the advice in R. v. A.R.J.D., [2017] ABCA 237 at paras. 39-48; aff'd 2018 SCC 6 and R. v. Barton, 2019 SCC 33, about the need to be careful about stereotypes, and there is no expected model for how a victim of sexual assault, or a perpetrator, looks or behaves. These are also difficult issues, and there will be similar economy in having to educate only one jury about them.
The complexity of the evidence
32It will be simpler to deal with the potential similar fact evidence in this case if the counts remain together. If the counts are severed, and the Crown brings an off-indictment similar fact application, as it indicates it intends to do, each trial will be more complex, and concerns about reasoning prejudice will be exacerbated.
The desire of the accused to testify on one or more counts but not on another or others
33The applicant takes the position that he may wish to testify in relation to MB, but not in relation to JB, because JB's evidence is subject to more potential frailties than MB's evidence. However, the applicant fairly acknowledges that Last makes it clear that even where there is an objective basis for an accused's provisional desire or intention to testify on some but not all counts, this factor is not determinative.
34The Crown takes the position that the applicant has not even provided a subjective intention to testify on one count and not the other, let alone an intention which has an objective basis in the record.
35This factor is generally accorded "substantial weight" in the severance analysis. But an accused must do more than merely assert a desire to testify on some but not all counts. The claim must have "some objective reality to it based on the evidence reasonably anticipated at trial" for this factor to have real weight: R. v. Durant, at para.74; R. v Last, at paras.22-30. But even where there is both a "a stated and objectively justifiable intention to testify on some but not all counts" this factor is not determinative, and may "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": R. v. Last, para.27.
36In Last, the Supreme Court concluded that an accused need not commit with certainty to testify on some but not all counts; a provisional intention is enough, providing it is objectively justifiable. I do not need to decide whether the applicant has provided the necessary subjective intention here, as the real issue is whether there is an objective basis for such an intention. The allegations in this case are similar, as are the expected defences: consent, or possibly honest but mistaken belief in communicated consent. Both cases turn on credibility. More importantly, the allegations are of similar strength, or at least not so disproportionate in strength as to suggest an objective basis for a reason to testify with respect to MB but not JB. While JB had more opportunities to leave than MB, and did not leave until the applicant told her it was time to go, both JB and MB are unequivocal that they did not consent to the sexual activity that occurred, and repeatedly communicated their lack of consent to the applicant. Both complainants allege they were injured and upset as a result, and independent witnesses can confirm this was the case for each complainant. In these circumstances, I do not believe there is an objective basis for the applicant's stated intention to testify with respect to MB, but possibly not with respect to JB.
The possibility of inconsistent verdicts
37Severing the complainants would not risk inconsistent verdicts.
The desire to avoid a multiplicity of proceedings
38Severance would lead to two distinct trials, as opposed to a single trial.
39The Crown cautions that this is a high-profile case, and it may be difficult for the applicant to get a fair trial before an unbiased jury if one case follows the other. The applicant responds that this a matter for him to decide.
40While it is for the applicant to decide where his best interests lie, I note that the complainants and society as a whole have an interest in a fair and timely trial of these allegations: R. v. Thanabalasingham, 2020 SCC 18 at para.9.
The use of evidence of similar acts
41No one factor is determinative of the severance analysis, but both counsel agree that whether there is a viable similar fact application is extremely significant in this case. If there is, there is good reason to try the counts together: the complainants need only testify once, and the risk of reasoning prejudice is greatly diminished. If there is not, there is no good reason to run the risk of moral prejudice that hearing the counts together would bring. Because of the significance of this factor, I have analyzed the allegations as they currently stand in detail in order to be very careful about my assessment of the viability of similar fact reasoning in this case. But I want to be clear that in doing so I am not deciding the admissibility of similar fact evidence. Similar fact evidence and reasoning is presumptively inadmissible and impermissible. Whether or not there will be a count to count instruction permitting similar fact reasoning will be determined at an application at the end of the trial, on the admissible evidence, during which the Crown will bear the onus of proof. At this stage I am simply considering whether such a similar fact application is viable.
42Similar fact evidence involves a form of propensity reasoning. Ordinarily such reasoning is anathema at a criminal trial, but it can become permissible where the propensity is so specific, and so unlikely to result from coincidence, that its probative value exceeds its potential for prejudice (moral and reasoning). Both counsel agree that R. v. Handy, 2002 SCC 56 sets out the accepted test and factors for determining the point at which the probative value of similar fact evidence exceeds its potential for prejudice (see also R. v. Bent, 2016 ONCA 651). They part company respecting the application of the test in this case. The Crown urges that the two allegations are sufficiently similar that there is a strong basis for similar fact reasoning; the defence disagrees, pointing to numerous differences.
43The application of the Handy test is not an accounting exercise; rather, "where to draw the balance is a matter of judgment": R. v. Shearing, 2002 58 at para.60. When I consider the allegations as a whole, based on the record at present, I am satisfied that the Crown's similar fact application is viable, by which I mean there is a reasonable possibility it will succeed at trial, which is all that is required at this stage: R. v. R.C., 2020 ONCA 159 at paras.37-40; R. v. A.W., 2019 ONSC 898 at paras.31-33; R. v. Richards, [2015] O.J. NO.7068 at para 37. I set out my application of the Handy test and factors to the allegations as they currently exist simply to show why I reached this conclusion; not, as I noted above, because I have decided that similar fact reasoning will be permitted in this case.
44First, it is necessary to assess the probative value of the proposed similar fact evidence. This begins with determining the issue to which the similar fact evidence relates, and the chain of reasoning involved. In this case, the similar fact evidence is relevant to establish the actus reus of sexual assault, to rebut a possible defence of honest but mistaken belief in communicated consent, and to support the credibility of the complainants. The chain of reasoning is the improbability of coincidence: (i) the applicant has a specific propensity to virtually seduce young women and arrange to meet them alone in his hotel room where he sexual assaults them, including subjecting them to a specific degrading act (opening their mouths and spitting inside); (ii) the evidence of each complainant that the applicant acted in that particularized fashion.
45The defence rightly observes that some of the similarities relied upon by the Crown are generic and there are aspects of the two cases which are dissimilar. Nevertheless, when I consider the allegations as a whole, including the context giving rise to each encounter, I am satisfied that there is a strong nexus between the two allegations. In reaching this conclusion, I considered the following circumstances:
(i) the proximity in time between the acts, and whether there are any intervening events that might undermine probative value
46The allegations occurred approximately six weeks apart. There is no suggestion that the applicant changed or matured in this period that would tend to undermine the existence of the specific propensity alleged. Nor is there any evidence of an intervening act that could have had a similar effect.
(ii) the extent to which the acts are similar in detail, including their surrounding circumstances and any distinctive features unifying the incidents
47The applicant traded on his celebrity to seduce each complainant virtually, and then invited each complainant to visit him when he was in Toronto. For both complainants, the sexual assault is alleged to have occurred the first time each complainant was alone with the applicant in person. The applicant communicated with each complainant by social media (mainly Snapchat), text and cell phone. These communications started earlier with MB (approximately February, 2016 and the sexual assault is alleged to have occurred on September 29, 2016) and arose out of years of "fan" contact which included her parents. For JB the communications started with a Tinder (dating app) match. In the course of the communications, the applicant invited both complainants to meet him back stage. MB did, together with two friends (which resulted in the sexual interference allegation). JB did not. The applicant sent both complainants photographs of his penis, and a video of himself masturbating, and asked for nude photographs of the complainants.
48In both cases, sexual activity was the essential purpose of the meeting, at least for the applicant, and it occurred in the applicant's hotel room. The applicant points to differences in how the applicant met each complainant, and in their communications, and argues that the purpose of each meeting was very different: with JB it was purely for sex; with MB it was romantic. I agree that these differences exist, but I do not find them significant in all the circumstances. There was a sexual content to the applicant's communications with both complainants, directly with JB and with romance thrown in with MB, and I believe sexual activity was the essential purpose of both meetings, certainly for the applicant.
49In both cases, the applicant arranged to bring the complainant to his hotel room in Toronto during the day, between about 11 am and 4 pm. The applicant arranged for JB to take the train from Ottawa to Toronto, with her arriving around 10:30 am and departing around 6:30 pm. He told her it was time to leave around 4 pm. The applicant sent a limousine to pick up MB from Barrie and bring her to his hotel in Toronto. She arrived around 11 am and planned to spend the afternoon with the applicant, and leave around 4 pm, but made up a ruse and left earlier, around 1 pm.
50The alleged sexual assaults bear similarities, some of which are generic, but some of which are very specific:
Both complainants allege repeated vaginal penetration with the applicant's penis, repeated anal penetration (using his penis with JB, and his fingers with MB when penile penetration did not work), during which time the applicant did not use a condom, and did not ejaculate inside either woman. MB alleges she was raped a minimum of 3 times. JB alleges she was raped 4-5 times vaginally and anally. MB alleged that the applicant ejaculated four times. JB did not know whether the applicant ejaculated.
Both complainants allege that the applicant tried to force his penis into their mouths, after anal intercourse with JB, and after attempted anal intercourse with MB. MB recalled the applicant forcing his fingers into her anus when he did not succeed in penetrating her with his penis, and putting his fingers into her mouth before spitting into her mouth.
Both complainants allege that the applicant opened their mouths and spat inside.
Both complainants allege being slapped across the face, and having their arms pinned down. JB described being choked by the applicant putting his hands around her neck, to the point she thought she was going to die. MB described the applicant slamming her face into the sheets and pillows making it hard for her to breath, to the point she thought she was going to pass out.
Both complainants allege that the applicant called them a "dirty little slut". Other words the applicant allegedly used were different: he told MB she was getting what she deserved, and asked her "whose pussy is this?"; he told JB that she was a "good girl"; a "dirty little pig", and made animal and oinking noises.
51When each complainant left, the applicant appeared to try to control the narrative by telling each he had a really good time. After JB left he texted her that he missed her, that they had a great day together and that he couldn’t wait to see her in Ottawa. The applicant walked MB to the lobby and gave her a hug and said he had an amazing time and wanted to see her again.
52Both MB and JB complained of similar injuries including, among other injuries, bruising between the legs, bleeding from vagina, and from the anus in case of JB, and pain sitting.
(iii) differences between the acts
53There are differences between the allegations of sexual assault, in addition to the differences I have already described surrounding the context in which they occurred, including:
Both encounters allegedly began with aggressive kissing. According to MB, the applicant would not take no for an answer. According to JB, the applicant stopped when she said she was uncomfortable and told her she could "just leave". But with JB this kissing occurred in a hotel room the applicant was merely using while he waited for his actual hotel room.
The applicant allegedly performed cunnilingus on MB, and masturbated with MB. He is not alleged to have done this with JB.
MB alleged the applicant held her down the entire time. JB reported being held and physically controlled at some points, but not at others. Indeed, the applicant left to take several showers while he was with her, and took a phone call on the balcony.
JB believed the applicant was impaired or intoxicated. MB noted only that the applicant smelled awful when she arrived, describing it as a mix of cigarette smoke and weed.
The applicant allegedly asked JB to slap him and to urinate on him. MB does not allege either thing.
The applicant asserts that there are differences around whether he is alleged to have controlled cell phone access, with JB alleging that he took her phone and put it in a drawer, while MB alleges that he let her keep her phone. I am not convinced that these differences are significant. MB's phone was on the ottoman, near the window, while the applicant controlled her on the bed. In addition, in JB's case, there were periods when the applicant was in the shower or speaking on his phone when she was alone, with possible access to her cell phone.
The encounters ended differently. MB arranged for her friend to call her cell phone and told the applicant it was her boss and she had to leave. The applicant told JB that he had to attend a meeting and it was time for her to leave.
As noted, there were only two occurrences, which significantly decreases the strength of any inference that there was a modus operandi or pattern of conduct.
54There does not appear to be any alternate explanation for the similarities which would negate the probative value of the specific propensity alleged. The applicant does not suggest there is any issue of collusion or tainting in this case. With respect to collusion, the complainants do not know each other and have never met or discussed what happened. There is also no evidence of tainting. When allegations of sexual misconduct by Hedley became public in 2018, both complainants became aware of and read a twitter account called "cndnpsycho", collecting allegations against the applicant. Both complainants described their allegations to "Taylor", the person managing the account, but declined to add their allegations to the public discussion. And there is no evidence that their allegations were added to the public forum. Indeed, the applicant acknowledges that the evidence is such that each complainant could not have been aware of the other allegation by virtue of the twitter account. JB later agreed to be interviewed by the CBC. MB was aware of a CBC article about sexual assault allegations about Hedley and the applicant. She clicked on it to see if the applicant had been charged, but did not read it.
55The essential evidence supporting the allegations comes from each complainant. There is some confirming evidence for both complainants. There is no suggestion that either complainant has a bias or motive to lie.
56After considering all these circumstances, I am satisfied that the nexus between the two allegations is strong and specific thus the potential probative value of the similar fact evidence is high. While the fact that there are only two events significantly diminishes the strength of the connection, and the ability to conclude there is a modus operandi, each allegation arises from a very specific context. In addition, the is a striking similarity between an unusual feature both complainants describe happening during the alleged sexual assault - the applicant opening their mouths and spitting inside. These features compensate for the fact that there are only two complainants.
57The second step in the analysis involves assessment of the prejudicial effect of the similar fact evidence, and the extent it can be cured by a limiting instruction. Assuming the two counts of sexual assault remain together on the same indictment, the risk of reasoning prejudice is substantially diminished. There is a danger of moral prejudice, particularly given that MB was not an adult at the time of the allegations. But, as discussed above, I am satisfied that this is a question of degree, and the prejudice arising from it can be addressed through an instruction. The conduct giving rises to the two charges of sexual assault is otherwise of similar seriousness.
58In sum, considering the allegations at present, when I balance probative value and prejudicial effect, I am satisfied that the potential probative value of similar fact reasoning exceeds its potential for prejudice such that the Crown's anticipated request for a similar fact instruction is viable.
The length of the trial
59A jury trial on the indictment as currently framed is scheduled for four weeks in January, 2021. The applicant submits that separating the complainants, and having two jury trials, will simplify matters and take the same or only marginally more time. The Crown disagrees, noting that if the complainants are separated, it will have to bring an off-indictment similar fact application. If permitted, the complainants will have to testify a third time (preliminary inquiry, trial, and on a similar fact application at a second trial).
Prejudice to the accused's right to be tried within a reasonable time
60Both counsel agree that this is not a significant factor in the analysis. Even if the trials are separated, the expectation is that both can occur well within the Jordan time limits.
The existence or likelihood of antagonistic defences
61This potential factor is not relevant.
Conclusion
62Based on the record before me, when I consider all the factors, and weigh them cumulatively, I am satisfied that the interests of justice favour a joint trial of all the counts. Accordingly, the application for severance is dismissed.
63However, it remains open to the applicant to renew his request for severance should the circumstances change.
GILLIAN ROBERTS J.
RELEASED: September 17, 2020
COURT FILE NO.: CR-19-10000463
DATE: 20200917
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
JACOB HOGGARD
REASONS FOR JUDGMENT
GILLIAN ROBERTS J.
RELEASED: September 17, 2020