Court File and Parties

COURT FILE NO.: CR-20-180-00 DATE: 2021 03 15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Agapi Mavridis, for the Crown Applicant

- and -

KIRK MATTHEW FAIRLEY Respondent Vincent V. Houvardas, for the Applicant

HEARD March 4, 2021

Ruling on Application to Sever

Fowler Byrne J.

1The Applicant, Kirk Matthew Fairley, has brought this application wherein he seeks an order severing one count from the other counts on the Indictment in this matter.

A. The Charges

2The Indictment in this matter states that Mr. Fairley stands charged of the following offences, all in relation to the same complainant:

1. That he, on or about the 1st day of December, 2018, at the City of Mississauga, in the Central West Region, did unlawfully commit an assault on [the complainant], contrary to section 266 of the Criminal Code of Canada;
2. That he, on or about the 14th day of December, 2018, at the City of Mississauga, in the Central West Region, did without lawful authority confine [the complainant], contrary to section 279(2) of the Criminal Code of Canada;
3. That he, on or about the 14th day of December, 2018, at the City of Mississauga, in the Central West Region, did unlawfully commit an assault on [the complainant], contrary to section 266 of the Criminal Code of Canada;
4. That he, on or about the 14th day of December, 2018, at the City of Mississauga, in the Central West Region, did commit a sexual assault on [the complainant], contrary to section 271 of the Criminal Code of Canada;
5. That he, on or about the 14th day of December, 2018, at the City of Mississauga, in the Central West Region, did in person, knowingly utter a threat to [the complainant] to cause death to [the complainant], contrary to section 264. l(l)(a) of the Criminal Code of Canada;
6. That he, on or about the 14th day of December, 2018, at the City of Mississauga, in the Central West Region, while bound by a Probation Order made by the Honourable Justice E. Kelly in the Ontario Court of Justice, Toronto on January 26th, 2018, without reasonable excuse fail to comply with such order, to wit: Keep the peace and be of good behavior, contrary to section 733.1(1) of the Criminal Code of Canada.

3The Applicant applies to sever the first count, namely the charge of assault which allegedly occurred on December 1, 2018, which is the only count relating to that date. There are no co-accused.

4I heard this application as the case management judge.

B. Background

5Mr. Fairley admits that he and the complainant were involved in an on-and-off intimate partner relationship for approximately one year.

6On December 15, 2018 the complainant contacted Peel Regional Police regarding a domestic incident involving Mr. Fairley. In particular, she alleged that she was at Mr. Fairley’s residence on the evening of December 14, 2018, and when she tried to leave, Mr. Fairley prevented her from doing so. In particular, he pushed her to the floor, began pulling her hair, and placed his hands on her neck to choke her. The Applicant threatened the complainant that, “if you don’t ghost me, I’ll kill you.” It is further alleged that Mr. Fairley then sexually assaulted the complainant twice. The complainant states she felt compelled to participate in the sexual assault out of fear for her safety. When she tried to leave his residence later, he again physically prevented her from doing so. In particular, it is alleged that Mr. Fairley pushed her onto the couch and struck the back of her head multiple times with a closed fist.

7The complainant finally was able to leave Mr. Fairley’s residence when the Applicant drove her home. She contacted police later that morning. When speaking to the police, the complainant also advised that another assault took place on December 1, 2018, wherein Mr. Fairley struck the complainant with a closed fist on her mouth. She sustained a cut and bloody lip as a result. She has provided photographs of these injuries.

8Mr. Fairley has elected to be tried by judge and jury.

C. Applicant’s Position

9Mr. Fairley maintains that it is in the interests of justice that count one be severed from the other counts because the failure to do so would prevent Mr. Fairley from having a fair trial on the remaining counts.

10In particular, Mr. Fairley argues the photos of the complainant’s injuries from December 1, 2018 would lead the jury to engage in “propensity reasoning” or “credibility boosting” of the complainant with respect to the counts related to December 14, 2018. He further submits that it would be the equivalent to the Crown being able to lead similar fact evidence when the Crown has not yet shown they are entitled to do so. In addition, it is argued that the alleged events on December 1 have little probative value with respect to the alleged events of December 14.

11Mr. Fairley states that the only connection between count 1 and the remaining counts is that they were reported on the same day and involved the same parties. Other than that, it is alleged that there is no factual or legal nexus between the two sets of charges. The evidence he intends to lead with respect to the December 14 charges will show a consensual relationship that continued after the alleged assault and show that the complainant was not afraid of him. This is directly at odds with what the photographs from the December 1st incident show.

12At this time, it is his intention to testify at both trials if the severance is granted.

D. Crown’s Position

13The Crown maintains that as of right, they are entitled to include many counts in one indictment. Mr. Fairley has the burden of showing on the balance of probabilities that the first count should be severed, and he has failed to meet his burden.

14The Crown states that there doesn’t have to be a strong or definitive nexus between the two sets of charges. Nonetheless, there is a nexus in that all the charges involve the same parties in an intimate partner relationship during the time of both alleged assaults. Also, there is commonality of charges, in that Mr. Fairley was charged with assault on December 1 and on December 14. The Crown argues that this case is not particularly complex and with the proper instruction to the jury, the jury will know what evidence can be used for what count and what conclusions the jury are not permitted to make from the evidence. The Crown also submits that the court’s resources should be used wisely, especially in light of the backlog created by the COVID-19 crisis. Finally, the Crown submits it would be preferable that a victim of a sexual assault should not have to testify in more than one trial.

E. Analysis

15The Criminal Code, R.S.C. 1985, c. C-46, places no restrictions on the number of counts that can be included on a single indictment for charges of this nature: s. 591(1). That being said, the Criminal Code does allow the court to sever one or more counts from the indictment “where it is satisfied that the interests of justice so require”: s. 591(3)(a), (emphasis added).

16Mr. Fairley bears the onus to show, on the balance of probabilities, that the interests of justice require the severance of the one charge of assault from the other charges, or that the interest in a fair trial outweighs the interest of society in avoiding a multiplicity of proceedings: R. v. Durant, 2019 ONCA 74 at para. 66-79, R. v. McNamara (1981), 56 C.C.C. (2d) 193 (Ont. C.A.), at para. 118, R. v. Cross (1996), 112 C.C.C. (3d) 410 (Q.C.C.A.), at para. 35; R. v. R.E.M., 2004 BCSC 985, at para. 12. In R. v. Ticknovich, 2003 ABQB 597, 353 A.R. 8, at para. 36, Watson J. interprets this term to mean that it would be contrary to the interests of justice if the accused is tried in a manner that does not allow for adjudicative fairness.

17In the decision of R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 17, the Supreme Court of Canada outlined the various factors that must be weighed by the court when determining whether to sever a count or not. The goal is to strike a reasonable balance between the risk of prejudice to the accused and the public interest in a single trial. An order to sever a count can impair not only efficiency but the truth-seeking function of the court.

18In Last, at para. 18, the Court provides the following list of factors, albeit not exhaustive, which assist the court in determining how the interests of justice may be served by severing a count while avoiding an injustice:

a) The general prejudice to the accused; b) The legal and factual nexus between the counts; c) The complexity of the evidence; d) Whether the accused intends to testify on one count but not another; 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 within a reasonable time; and i) The existence of antagonistic defences as between co-accused persons.

19I will address each applicable factor in turn, before considering the general prejudice to the accused.

i. Legal and Factual Nexus Between the Two Incidents

20The Crown is not required to prove nexus in a strong or definitive manner in order to rebuff a severance motion: R. v. Mawick, 2018 ONSC 830, at para. 30; Ticknovich, at para. 67.

21The meaning of a legal nexus is not particularly clear. It has been held to exist when counts arising from different transactions meet the test of similar fact evidence, or where there is otherwise cross-count admissibility of evidence: R. v. Moore, 2015 ONSC 728 at para. 147-150.

22In this case, there is a legal nexus between the charges laid with respect to the events of December 14, but not necessarily with the charges laid with respect to the events of December 1. Given the Crown has not brought a similar fact application as between the offence charged on December 1 and those on December 14, 2018 before me at this time, I find no legal nexus.

23With respect to a factual nexus, it is not necessary that the various accounts overlap in time: R. v. Laporte (PLR), 2016 MBCA 36, 326 Man. R. (2d) 217, at para. 116, relying on R. v. Blacklaws, 2012 BCCA 217, 285 C.C.C. (3d) 132, as adopted by the Supreme Court of Canada on appeal, 2013 SCC 8, [2013] 1 S.C.R. 403.

24The timing of disclosure of the alleged crimes can also be an important factual nexus between the counts: R. v. E.S. (2000), 129 O.A.C. 146 (C.A.), at para. 18.

25In the case before me, the obvious factual nexus is that the same two parties are involved. The events that allegedly unfolded on December 1 and December 14 took place within the same intimate partner relationship. Also, on both occasions the complainant was in an environment controlled by Mr. Fairley – either in his car while he was driving or in his residence. For both assaults, Mr. Fairley alleged used a closed fist – the first time hitting the complainant’s face and the second time on the back of her head. On both occasions, a charge of assault was laid.

26The only facts which show the lack of a factual nexus between the two events is the fact that they occurred 13 days apart, and that on the earlier occasion, December 1, the complainant took photos of her injuries. There are no such photos on December 14.

27Accordingly, in the case before me, the lack of legal nexus weighs in favour of a severance, while the existence of a factual nexus supports the dismissal of this application.

ii. Complexity of the Proceedings

28The proceedings and the counts are not complex. There is only one complainant and one accused. The charges stem from two events less than two weeks apart. There are no co-accused. There are only 6 counts on the indictment, and two of them are the same charge – assault, one on December 1, and one on December 14. The lack of complexity weighs in favour of keeping the counts together.

iii. Accused’s Intention to Testify

29When assessing this factor, the underlying concern is for Mr. Fairley’s ability to control his defence, and more specifically, his right to decide whether or not to testify with respect to each of the counts, unimpaired by inappropriate constraints: Last, at para. 25. Mr. Fairley’s intention to testify with respect to one count and not another should be objectively justifiable. It should also be remembered that Mr. Fairley remains free to control his defence as the case unfolds, and he is therefore not bound by his stated intention: Last, at para. 26.

30In the case before me, Mr. Fairley has indicated his intention to testify with respect to the first count and the other counts. Even though he may change his mind later, Mr. Fairley’s present intention to testify as to all counts weighs against his request for a severance.

iv. Possibility of Inconsistent Verdicts

31The risk of inconsistent verdicts if the counts were severed weighs in favour of a joint trial: Last, at para. 44, Durant at para. 45. In the case before me, this risk is low.

v. Benefit to the Administration of Justice in Avoiding Multiplicity of Proceedings

32There is an obvious benefit to the administration of justice if a multiplicity of proceedings can be avoided.

33In the case before me, if the severance was permitted, the complainant would have to testify twice, but with respect to different events. As indicated, Mr. Fairley intends to testify both times. Given that the two incidents were disclosed at the same time, and charges laid at the same time, the same police officers will be witnesses.

34There is a possibility of overlapping narrative. When describing the reasons for her conduct on December 14, in particular her fear of leaving, the complainant may have to refer to the events on December 1 to establish the basis of her fears.

35Consideration should also be given to the complainant, who will be giving evidence as a victim of sexual assault in at least one of the trials. When possible, a complainant in a sexual assault case should not have to testify more than once: Ticknovich, at para. 44, Leary v. The Queen, [1978] 1 S.C.R. 29, at p. 59. That being said, in the event the complainant is required to testify twice, it is unlikely that she will have to describe the sexual assault in the trial with respect to December 1 incident.

36Given the scarcity of judicial resources, especially the backlog of jury trials as a result of the COVID-19 pandemic, the duplication of witnesses and possibility of overlap of evidence, the administration of justice weighs in favour of dismissing the application for severance.

vi. Use of Similar Fact Evidence

37Where similar acts are alleged as part of a multi-count indictment, the court should consider the admissibility of similar fact evidence when deciding whether the counts should be severed. That being said, even if the court denies a request to sever a count, it does not mean that the evidence given at trial will be admissible on all counts in the indictment: R. v. Arp, [1998] 3 S.C.R. 339, at para. 52.

38A ruling allowing similar fact evidence will favour a joint trial since the evidence on all incidents would have to be introduced in any event: Last, at para. 33. On the other hand, the inadmissibility of similar fact usage of evidence connected to separate counts would generally favour severance as it may lead to a generalized finding of bad character and criminal propensities. If moral or adjudicative prejudice is realistically threatened beyond probative force and the capacity of a trial judge to instruct the jury as to the proper use of the evidence, the argument for severance strengthens: Ticknovich, at paras. 49-50.

39The Crown did not bring a similar fact application at the time this application was heard. It is not clear at this point whether similar fact evidence would be admitted if the count was severed.

vii. Prejudice to Mr. Fairley

40In this context, the potential prejudice to an accused is the risk that evidence of one count may be used improperly by the trier of fact to assess the guilt of the accused on another charge. Prejudice, in this context, does not mean that the admission of evidence will make it more likely that Mr. Fairley will be convicted: R. v. Rose (1997), 100 O.A.C. 67 (C.A.), at para. 18; R. v. L.B. (1997), 35 O.R. (3d) 35 (C.A.), at para. 22.

41As identified by the Ontario Court of Appeal in R. v. Z.W.C., 2021 ONCA 116, at para. 104:

In assessing the prejudicial effect of evidence, the trial judge may consider a variety of factors, including: (a) how discreditable the conduct is – the more inflammatory and egregious the conduct, the greater the likelihood of moral prejudice; (b) the extent to which the evidence may support an inference of guilt based solely on bad character; (c) the extent to which the evidence may confuse the jury; and (d) the ability of the accused to respond to the evidence. [Citations omitted.]

42Two examples of prejudice that Mr. Fairley may suffer if the first count is not severed is that the jury would engage in (i) impermissible credibility bolstering or (ii) prohibited propensity reasoning: Last, at para. 40.

43Impermissible credibility bolstering occurs when a credibility assessment with respect to one count improperly impacts a credibility assessment of the accused or complainant for a separate offence included in the same indictment. Propensity reasoning may occur if a jury, being satisfied that the Crown has satisfied its burden of proof with respect to one offence, then infers that the accused was the type of person who would commit these crimes and convict the accused on the other counts, irrespective of whether the burden of proof was met: Last, at para. 36.

44In the case before me, the critical issue is whether the photographic evidence with respect to the count of assault on December 1 will operate to prejudice Mr. Fairley in the adjudication of his charges in the remaining account.

45When reviewing these principles of prejudice, I concede the possibility that evidence of the December 1 assault may support an inference of guilt based solely on bad character. Photographs can be quite compelling. Nonetheless, I do not find that the risk of this prejudice is so great so as to support a severance of this count.

46The conduct described in the count relating to December 1 is no more morally abhorrent or disturbing than the assault charge or the other charges emanating from the remaining counts relating to December 14. I do not believe the evidence of the December 1 events will confuse the jury, as it is clearly from a different day. The one piece of potentially prejudicial evidence can be clearly identified and addressed by the trial judge.

viii. Impact of a Jury Instruction on Potential Prejudice to the Accused

47At times, a proper jury instruction can over come any potential prejudice to an accused, but only if there are sufficient countervailing factors providing a rationale for a joint trial. While a limited instruction can limit the risk of inappropriate cross-pollination on credibility assessments or propensity reasoning, courts should not resort to a limiting instruction unless there is a valid reason to do so. The availability of a limiting instruction is but one factor to consider in this balancing exercise: Last, at paras. 45-46.

48Jurors can be entrusted to sort out counts and evidence such as conflicting defences or character evidence. Jurors are presumed to obey the instructions they get as to the use of risky evidence: Ticknovich, at para. 53. In this case, were severance to be refused and the counts all tried together, the jury would need to be clearly and properly instructed about what evidence is admissible against the Applicant on each count and what the permissible and impermissible lines of reasoning are for each count.

ix. Weighing All Factors

49It is incumbent upon the trial judge to consider and weigh cumulatively all the relevant factors to determine whether the interests of justice require severance: Last, at para. 44.

50The courts must also consider the administrative inconvenience and the additional costs created by having separate trials, but it understood that these latter considerations do not take precedence over an accused’s interests or their constitutional rights: Cross, at para. 37.

51After weighing all the factors, I find that the defence has not shown, on the balance of probabilities, that a severance of the first count in is the interests of justice.

52The factual nexus between the counts, the lack of complexity, the intention of Mr. Fairley to testify in both trials, and the general administration of justice favours the counts being considered together. While it is conceded that there is a potential for the jury to engage in impermissible propensity reasoning, or the bolstering of credibility, as a result of the photographic evidence of the first count, this count is distinct in both time and circumstances, and a direct and succinct instruction to the jury can provide proper instruction on how the evidence is to be treated. There is little chance of confusion as to how this evidence should be considered by the jury. In these circumstances, Mr. Fairley has not shown the court that the interests of justice would be served by severing his first count from the indictment.

F. Conclusion

53Accordingly, for these reasons, Mr. Fairley’s application to sever the first count is dismissed.

Fowler Byrne J.