ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-20-30000187

DATE: 20210514

BETWEEN:

HER MAJESTY THE QUEEN

– and –

P.B. Accused

Counsel: Benjamin Snow, Counsel for the Crown Jeremy Naresh, Counsel for the Accused

HEARD: April 29 and May5, 2021

M.A. CODE J.

REASONS FOR JUDGeMENT ON TWO PRE-trial motions

A. OVERVIEW

[1] The Applicant P.B. is charged in a four count Indictment that is awaiting trial in this Court. The four counts allege offences against the accused’s common law wife S.P. and his son A.B. The Indictment is presently scheduled for trial with a jury on April 19, 2022. I heard two pre-trial Motions relating to severance of counts and admissibility of evidence across counts. These Motions were properly scheduled well in advance of trial, given their potential impact on the trial schedule.

[2] There are three separate publication bans that apply to these proceedings, as follows: first because the case is presently scheduled as a jury trial, s. 648(1) of the Criminal Code bans publication of the proceedings until the jury retires to consider its verdict; second, because Count 1 alleges sexual assault, s. 486.4(2) bans publication of the identity of S.P.; and third, because Count 3 alleges assault in relation to A.B., who was 12 years old at the time, s. 486.4(2.2) bans publication of the identity of A.B. As a result of the latter two statutory publication bans, I have referred to the accused, his common law wife, and his two children by their initials.

[3] The first pre-trial Motion was filed by the defence. It seeks severance of Count 3, which is the only allegation of assault against the accused’s son A.B. The other three counts in the Indictment allege offences against the accused’s wife S.P. The Crown responded to this defence Motion by opposing severance of Count 3. As part of its response, the Crown initiated its own Motion, seeking a pre-trial ruling that the evidence relating to the four separate counts was, in fact, admissible across all four counts. The likely success, or lack of success, of this Crown Motion is a relevant factor in relation to the defence severance Motion.

[4] The two pre-trial Motions came on for hearing on April 29, 2021 by teleconference in the midst of the COVID-19 pandemic. It soon became apparent that additional evidence needed to be filed, as part of the Motion Records, and that certain additional legal authorities needed to be taken into consideration. As a result, the two Motions were adjourned to May 5, 2021. I requested that they resume by way of video-conference (on the Zoom platform). The additional materials were filed in written form and were marked as exhibits. There was no viva voce evidence heard on either Motion. At the end of oral argument, I reserved judgement. These are my Reasons for Judgement on the two Motions.

B. FACTS

[5] I will briefly summarize the anticipated evidence relating to the four counts in the Indictment. There has been no preliminary inquiry and the Crown has not yet interviewed the witnesses, in preparation for trial. As a result, the anticipated trial evidence can only be distilled from the transcripts of audio- and video-recorded police interviews of S.P. and her two children, A.B. and N.B. It can be anticipated that some additional details will emerge, once the Crown interviews the witnesses in preparation for trial.

(i) The Count 1 alleged sexual assault on S.P.

[6] Count 1 alleges that P.B. sexually assaulted his common law wife S.P. during the month of July 2017. She did not report the matter to the police at the time. It was almost two years later, in June 2019, that S.P. went to the police and reported this incident, resulting in the one charge of sexual assault. It is the earliest allegation of violence by P.B. within the family.

[7] P.B. and S.P. were in a common law relationship for 14 years until they eventually separated. They had two children, who were age 12 and 10 at the time when S.P. went to the police. There had been an initial period of partial separation, where the accused P.B. lived downstairs in their home and S.P. lived upstairs with the two children. However, this arrangement did not work well, the relationship deteriorated further, and S.P. took the children and left the home. The exact dates of these partial and complete separations are somewhat unclear. S. P. simply told the police that “things got so bad that I had to take the kids and I went to my neighbour.”

[8] After S.P. left the home, she retained counsel and served P.B. with legal documents, commencing family law litigation. It is alleged that P.B. responded to this legal development by threatening S.P. to “drop the case” or else he would “make sure you don’t get nothing, even if I have to end up in jail.” It was at this point, on June 3, 2019, that S.P. went to the police and provided a tape-recorded statement. The accused was arrested the next day, on June 4, 2019, and the present criminal proceedings were commenced. I am advised by counsel for P.B. that the accused is paying child support and that the family law litigation appears to no longer be so acrimonious.

[9] The allegation of sexual assault in Count 1 is serious, although it was not what precipitated the partial and complete separations or the eventual end of the common law relationship. The more immediate causes of the partial separation, and the eventual decision to completely leave the family home, were the Counts 2, 3, and 4 allegations of physical violence, drunkenness, and verbal abuse. S.P. described these later incidents first, when she was being interviewed by the police on June 3, 2019. The officer then asked her, “tell me about the first time there was ever any violence in the relationship with him.” At this point, S.P. recounted the incident of alleged sexual assault, as follows:

Like he like videos, and he like cameras, and he like mirrors, but there’s one time that I didn’t like it, and I think I went and I complained to my neighbour … he was really drunk and, and I said, okay, fine, … let’s go like, and, uh, he didn’t wanna know, do it, he wanted anal, right? And I refuse, and that when, when he was drunk, and he just forced it, and I, I remember I was begging to stop. (Crying.) And then I went the next day to the neighbour, and I told her, like I’m bleeding, what do I do, right? But his words always to me, and the neighbour heard this too, like ‘if you leave, if you say anything or you do anything, I’ll kill you, five years I’ll go in jail and then I’ll come out and take my kids.’ So there’s always that fear that, and I remember the neighbour told me, you should go to the doctor and tell her what’s going on … or you should tell the police. I was always so terrified, like that idea of him just being five years and then taking my kids … Yeah, that was the first thing that ever happened, that I start worrying … When you’re getting in the room, and you know, you know it’s going to be … he start kissing or whatever, and then all of the sudden, he flip me on the bed, and my hands were hold … Like I was on the bed and my hands on hold (demonstrates), and I was telling him like, okay, like no, I, I don’t want it that way, like I told him it’s … I know when he did it and it was hurting … I was telling him, like stop, it hurt … His idea if I don’t do that, that mean I don’t love him or I’m cheating, or there’s somebody else in my life, because I refuse it that way … I remember the next day I went crying to my neighbour, and I told them I’m in pain and that I’m bleeding, what do I do, right? I was asking her … she told me maybe you should talk to somebody about it, don’t keep quiet, but so many neighbours heard him …. ‘I kill you, five years in jail, I come out ...’

[10] S.P. recalled that this incident of alleged anal rape happened two years before she went to the police. She believed it was in July 2017. They were on the bed in their bedroom at night. Her daughter, N.B., heard her screaming and asked her the next day why she was “screaming and crying”. She told her daughter, “I was just in pain.” She was unsure whether she ever told her doctor about this incident. The bleeding lasted for two days.

(ii) The Count 2 alleged assault on S.P.

[11] S.P. described a further deterioration in her relationship with P.B. that involved alleged racism. She stated that P.B. always wanted “his kids with European kids”. Their son, A.B., would argue with his father because A.B.’s friends came from many different backgrounds. P.B. would say, “I don’t want coloured kids … they’re criminals.” S.P. would side with her children during these arguments and she “got mad” with P.B. He responded by coming “close to my face … with his fist” and telling her, “don’t teach my kids these things” [about multi-culturalism and tolerance]. The children would tell P.B., “you’re racist, we’re not, this is our friend.” S.P. thought that “this is when the whole thing start … me standing up and saying no, because of the kids.” She partially separated from P.B. She believed it was for “four years separated, I’m living upstairs,” although the police did not really question her about this initial period of partial separation and its timing. It was during this period of partial separation, according to S.P., that the allegations in Counts 2, 3, and 4 arose. They all occurred in November 2018, according to S.P.’s recollection. She explained, “That’s when most the problems happened, is when he knew I’m trying to get out of the house.”

[12] Count 2 alleges an assault on S.P. during the first two weeks of November 2018. All three Crown witnesses – S.P., A.B., and N.B. – described this incident in their recorded police statements. S.P. described it as follows:

… they [the two children] saw him when he pushed me, there’s couple time where he come upstairs, like he’s downstairs, I’m upstairs in my room, he’ll come, ‘you’re, you’re a whore, you’re a cunt, you’re this,’ … he spat on my face in front of kids, I saw him … he pushed me, [N.B.] push him back.

… how we know that he’s coming, is we hear his feet on the stairs, so everybody run to my room. So [N.B.] come beside me and [A.B.] come beside me before he reaches upstairs. So he will come, I don’t know what he was talking about, … he came and he’s like, ‘you’re fucking ISIS, you’re Muslim, you’re,’ I don’t know what, I don’t know what, and so my son tried to push him out of the room, because we know what’s going to come after, right?

So I’m quiet on the bed, [N.B.] telling me, ‘just keep quiet,’ I’m quiet, the kids are there, so I’m quiet, and then all I remember he just came so close and he just spitted on my face. And that’s when I wanted to get up, right? And that when my kids pull me down and just lock the door, and he’s like, ‘Mom, stop.’ I wanted to actually get up and grab him for spitting on my face.

Things got worse from there, that’s when I knew it’s done. Nobody have the right to spit on your face.

…I didn’t want to wipe it in front of him. I just let it, I told him, ‘good, so what did you get out of it? You spit in my face.’

[13] The context in which the Count 2 incident arose was an acrimonious relationship within the family. A.B., the son, described it as follows in his statement to the police: it “was getting worse, he [P.B.] would be downstairs, there was a door from upstairs to downstairs … we were up, my Mom would be upstairs … that door would be locked … they had an argument, really bad, and me and my sister and my Mom were upstairs … he [P.B.] took off the Wi-Fi to the house and then he took off, I think, the heater that works for the heat … I’m pretty sure my Mom called the police … ’cause upstairs was getting really cold.” When the police arrived, “he [P.B.] started screaming, arrest me.” After the police left, “my Dad turned on the heater” but then he “started like playing loud music so we couldn’t fall asleep … and then he started screaming names to my Mom about her culture … he was racist, he was a racist guy and he thought that his culture was the best and so … to make my Mom mad … that day he was screaming like ‘Muslim the B word’ and then started saying ‘effing ass and then hole’ … he would just say swear words … we just tried falling asleep and that day went on.” There are apparently “several domestic incidents on file with the Toronto Police Service” that do not involve actual violence. These incidents were apparently “in November” 2018.

[14] A.B.’s recollection was that the Count 2 incident occurred before the above upstairs/downstairs partial separation occurred. He thought that it was this incident that actually led to the partial upstairs/downstairs separation. He described it as follows:

… I think this is when it actually started like getting really bad. And that’s when they had to separate down, up and … so what happened was my Dad and Mom are in their room and they were, they had a argument, and so what happened was my Dad went outside and me, my sister was little, like she, she’s not like now, she’s grown up, so she was scared so she started like panicking, so what happened was, I don’t know what happened, my Dad stormed in and came to my Mom, when I heard my Mom screaming I walked in, my Dad was on the bed and what he was doing was he was like grabbing her and then … when he saw my sister screaming … he, um, went to the door and started screaming at her and what happened was he spit on her and my Mom got really mad, so I had to hold … so obviously … my Mom doesn’t like it … she took it as a big offence when he spit on her, so I was gonna hold my Mom ’cause she was very mad. And my Dad … I don’t know what he was doing, he was getting closer and started screaming how I said the Muslim stuff and everything, so I, I was just confused at the point I was just holding my Mom and then after that, he just left, he drove off I think that day and went out.

She was screaming, ‘leave me alone, stop it,’ because it was … like there was no one like up, it was like late night, she was screaming, ‘leave me alone, stop it’ and then she was screaming about the argument and then, yeah, I walked in and my Dad got off. …when I walked in, he turned around, like he turned around, saw me and then he got off and that’s when he started screaming and spit on her … So he spit on her and my Mom got mad, so I said, ‘Mom, go sit down,’ and I was holding her, and my Dad went out the room, I think he went downstairs, outside, I don’t know, and then they just, I think my Dad went downstairs and stayed downstairs and that’s what happened.

[15] A.B. described a second incident, when his father came up the stairs and was “screaming stuff … something about her religion,” that “it got my Mom mad,” and “I got between them so I don’t want nothing happening.” A.B. was unsure whether there was any actual physical contact on this second occasion. He recalled that his parents were “getting close and tried hitting each other and I got between … he tried slapping her ... like he missed … I was trying to hold my Mom back ’cause she felt it and she tried hitting him back … so I just went between them and I told Mom, go up, she went up and he went behind her … Mom went up and closed the door and he was at the door screaming Muslim B word.” A.B. recalled that his sister N.B. was present during this second incident.

[16] N.B., the daughter, stated that a lot of the acrimony in the household occurred when P.B. was drinking. She stated that, “we were all scared of my Dad, but we didn’t want to show it to him because … if we showed it to him he would know that we’re scared and … he’d want to scare us even more, so we showed him that we were strong.” She described an incident where P.B. “got really upset” and “took my Mom’s phone that she had and threw it and pushed her onto the bed.” She also described the verbal abuse in the relationship, as follows: “every time you would hear my Dad call her names, ‘ISIS, cunt,’ this and that, ‘the B word’ … like any time my Mom was home we would always stick with her ’cause we were scared of my Dad … So we were in the room with her and like we were just talking … it wasn’t just one night, every night my Dad used to blast music.”

[17] N.B. recalled that it was on one of these occasions, when P.B. was downstairs playing loud music and S.P. was upstairs with the children, trying to sleep, that the Count 2 incident occurred. N.B. stated that it was actually “the first time he came upstairs and went into her room.” She described it as follows in her police statement:

… he started playing his music and my Mom got upset … I guess my Mom yelled … he heard her or something like that and he got mad or whatever.

And then he came upstairs like running like stomping feet and everything, barging upstairs and he slammed the, um, the basement door open and this and that and he came to the room and he started like, he was saying this and that, ‘you were ice [ISIS],’ … we’re half Muslim, half Greek … my Dad always thought that any time our Mom tried teaching us Arabic or anything, he thought it was rude. So what he did was he used to always cut her off from teaching us, whatever.

Um, but he used to call her ‘ISIS, murderer,’ like all these like Arabic names and stuff like that … used to call her … this is a bad word but I might as well just say it, he used to call her ‘cunts’ and stuff like that in front of us.

And we were there ’cause we were with our Mom, me and my brother. And then he got really mad and my Mom just was obviously fighting back for herself and she was like, ‘why are you calling me this stuff like that? Why are you blasting your music? Your kids want to sleep, what are you doing? You’re doing this to your kids, not to me, it’s not about me this and that.’ And then he got so mad that he spat on my Mom.

And then my Mom, … like that’s when my Mom got really mad ’cause you’re not supposed to spit on someone, it’s rude, it’s … disrespectful. So my Mom got mad and that’s the day she got really, really mad that she didn’t want to stay in the house and she wanted to leave, so she left …

(iv) The Count 3 assault on A.B.

[18] It is Count 3 that the defence seeks to sever. It is the one count that alleges an assault on P.B.’s son, A.B., who would have been 12 years old at the time. The Indictment alleges that the offence occurred in November 2018.

[19] A.B. stated that the incident occurred during the period of partial separation, when P.B. was sleeping downstairs in the basement. S.P. and A.B. explained that S.P. was working a nightshift, that she would leave the house for work at about 10:00 p.m., and that the children “would go sleep downstairs.” N.B. explained that when their mother went to work at night, “we would go downstairs with my Dad because me and [A.B.] used to be scared of the dark, so we used to go downstairs with my Dad.”

[20] A.B. stated that the context for the Count 3 incident was that his father had been drinking and this led to a dispute about A.B.’s use of his iPad. A.B. described the incident as follows:

So it was one night and he got drunk like usually and so he told us ‘go to bed’ so I was going to bed and I think it was the start of grade seven or some time in grade seven.

I always put on my alarm ’cause I can’t wake up without an alarm so I put, I was putting on my alarm clock, he said ‘leave your iPad,’ I said ‘Dad, can I just put my alarm on please.’

So I hold him that, because he was drunk he thought I said, ‘no’, so he got my iPad and threw it, he broke the cover and I was like, ‘what are you doing’, I told him, ‘what are you doing,’ he’s like, ‘go to bed’ so I tried my alarm clock again on ’cause I didn’t put it on I, I know if I don’t go to school today ’cause I had something big that day like a test or a project with the teacher.

So I went on and tried, that’s when he got aggressive so the first thing he did was grab my arm and tried pulling me off the iPad … I was holding my iPad ’cause if I let go he was gonna break it and that’s the only thing I had at the time. So I was holding it and then he was like, he grabbed me and started throwing me around so I like, I curled up into a ball. And he, that’s when he started throwing me around and stuff, he punched me, I think, like he started punching me trying to (inaudible) go and then he held me up by like the neck(indicates upper chest) or chest on the wall … something like that and he said, ‘give me the iPad,’ and I was like, ‘no, no, ’cause you’re going to break it.’ Like he was gonna break it and it’s the only thing I had contact with my Mom … and with my school ’cause I need the Google classroom stuff and that’s when he got aggressive so then I, I still have to sleep downstairs ’cause my Mom went to go, had work, so I slept down, yeah, that’s where I went, he got aggressive that night.

And the same night he, um, like he had these nice like bar stools, black tall metal … like he grabbed it and would threaten to throw it at me, he would get bread, threaten to throw it at me, … at this point, he started getting aggressive with me.

So he would get on the bed, he was grabbing me by the shoulders (indicates shoulders) … I don’t know where he grabbed me, he grabbed me somewhere like on my back, my shirt and there was a wall, I was up on the wall and the mattress on the floor and he just threw me around … he threw me into the wall, he threw me down, he threw me and then he pinned my arm and started punching me and then after that he, um, grabbed me by like the neck area (indicates neck) and put me up against the wall … and said ‘give me the thing’ and I let go and that’s when my sister came, … she was in the shower and she like finally heard it, she had to come out naked, I didn’t see it ’cause I was looking the other way, but she had to get my Dad to him off and, yeah, so when she broke it out that’s when he started threating to throw stuff.

[He punched me] in the arm. ’Cause I was laying down at the point where my sister came out, when he was holding me against the wall, so it’s my head on the wall and my body on the mattress … he punched me once, told me let go, and that’s when my sister came out.

[21] In terms of the timing of this Count 3 incident, A.B. stated that he told his Mom about it. He believed that she then went to their neighbours and began making plans to completely move out of the family home: “so we were trying to move … my Mom found out about this ’cause I told her and she was scared, so she went to the house beside with the old man so she could take care of him and stay … so I think that’s when he [P.B.] did it and my Mom started cleaning the house next door so we can go there.”

[22] A.B.’s younger sister, N.B. appeared to describe two separate assaults on her brother in her statement to the police. The first alleged incident was not mentioned by A.B. in his statement to the police. According to N.B., the first incident arose when they came home from a visit to Canada’s Wonderland. A.B. was wearing a hat that he had won. It “had like rainbows and stuff like that.” According to N.B., her father P.B. “all of a sudden thought my brother was gay, just because he had the rainbow hat.” They argued, with A.B. denying that he was gay. P.B. then took the hat from A.B. and “threw it out.” P.B. had been drinking and more yelling ensued between father and son. Somewhere around this point in time, according to N.B.’s recollection, a dispute arose about A.B.’s iPad which led to a physical altercation, described as follows by N.B.:

… he [A.B.] was setting alarms on his iPad and my dad thought that he was just doing something, I don’t remember what, but either it was texting my Mom, he just thought he was doing something. So he took the iPad, and he threw it on the ground and then that’s when I’m like, okay, I have to start getting up and now doing something. And then after he started getting on, getting on [A.B] and all I can remember is that he grabbed him by his neck like around his neck or something like that. … he pinned him on the bed and then he started like hitting him and stuff like that and that’s when I had to come in and like block like tear them apart, even though I’m this little, like I somehow managed to break it apart, which I’m still surprised about.

[23] It appears that the police did not lay any charge in relation to this first alleged incident described by N.B., given that A.B. did not appear to refer to it in his statement. N.B. went on to describe a second incident that does appear to relate to the Count 3 assault charge. She stated the following:

… my Dad or whatever recently fixed the basement. So we, I went to take a shower and while I was in the shower I heard screaming and my brother and everything and crying. And then when I, I was like okay, I have to check on him ’cause I was scared for my brother. So I got out like with no towel, nothing and I see him again on [A.B.], so I told him, and then that’s what he started getting even more aggressive and started like punching him and this and that, and I’m like, ‘Dad, like what are you doing?’ And I started yelling at my dad and then I told him, ‘what are you doing? This is your son, are you okay, are you drunk’ or whatever? ’Cause he was an alcoholic.

So then after I took it apart and I pulled him apart, my, my brother and then my Dad and then I told [A.B.], ‘just stay over there’ ’cause our basement was pretty big. So I told him ‘stay in the corner over there and don’t go near my Dad and if anything happens just to call me.’ So then I started talking to my Dad, I’m like, ‘Dad, are you okay? Like remember you’re doing this to your son, this is like not okay’ and I just kept talking to him. And then I went to my brother, even though my Dad said not to go to him I still went because I was worried, obviously, he’s my brother. So I talked to him and I’m like, ‘it’s okay, [A.B.], trust me, you’re okay, just relax’ and, ’cause he was upset, you know, and like he started like breathing heavily, he was just so angry. And then after I went back in the shower, luckily nothing happened after I got out, I finished and everything.

[24] N. B. went on in her police statement to describe further acrimony between the accused P.B. and his son A.B., including “threatening him” and “he threatened me too.” N.B. could not remember whether this further incident “was the same day or not” (as the Count 3 incident summarized above).

[25] As noted previously, S.P. was away at work at the time of the Count 3 incident and she did not witness it. However, she recalled being told about it afterwards. She described her children’s prior statement, or recent complaint, as follows:

… usually nighttime he [P.B.] doesn’t allow them on the tablet, because, he know I text them when I’m work, ‘are you okay? Go to bed.’ So in the morning on the train, I got message from [N.B.], ‘Mom, it was really bad yesterday.’ And I’m like, ‘what happened?’ She’s like, ‘Dad was drunk and he has an argument with [A.B.] about you,’ because he call me names in front of kids … like ‘whore’ these things, and the kids tell him ‘stop, like this is our Mom, right?’ So why, defend me, they get it. Uh, so she tell me, uh, ‘come home, but don’t worry, we’ll tell you when you come home.’ So when I came home they tell me, ‘him and [A.B.] argue, and, uh, he push [A.B.] on the floor, uh, slap him couple time. My daughter was upstairs taking a shower, she have to come three time naked to stop her Dad.’ Uh, and then you know when some, they say, he hold, you know, like this is what they told me, ‘he hold the chair and you know when somebody threat you (demonstrates)? Like they want to throw the chair on you?’ And then when [A.B.] tried to grab the tablet to text or call, I don’t know, like I always left even the neighbour’s numbers with them, ‘he took the tablet and he throw it.’ She said just, then ‘[N.B.] told him just keep quiet till tomorrow.’

(iv) The Count Four alleged threatening bodily harm to S.P.

[26] Count 4 alleges that P.B. threatened bodily harm to S.P. during the month of November 2018. S.P.’s account of this incident was that it occurred in the evening, after it was dark. She was standing on the upstairs balcony of her home and P.B. was standing outside by the side door when the following occurred: “he [P.B.] didn’t notice that there was neighbours outside in the dark, so he was saying, uh, ‘come in the dark and I’ll show you what I’m gonna to do, I’m gonna wreck your neck, like break your neck ... I will break your neck, uh, you’re lucky you’re not in Greece,’ he was saying. And, uh, that when one of the neighbour yells, ‘[S.P.], don’t be scared, we’re watching, right.’ And, uh, that’s when he start calling them, effing them off, and that’s when the daughter of one of the neighbour called the police. So that when I sent the kids to her house … and then the neighbour came with me home … I moved November 20 or, like almost middle of the November. [The police] came two days before I move. That when I was cleaning the neighbour house …”

[27] It appears, from the above account of this alleged incident of threatening, that it led to the police being called and it is what precipitated S.P.’s decision to leave the family home with her children and move into the neighbour’s home.

C. ANALYSIS

[28] I recently set out a brief analysis of the law of severance in R. v. Creary, 2019 ONSC 4843 at paras. 21-24. That summary, which I adopt for purposes of the present case, was as follows:

The power to order severance of counts is set out in s. 591(3) of the Criminal Code. The statutory language enacts a broad test as to whether “the interests of justice… require” severance. The authoritative modern decision on the law of severance is R. v. Last (2009), 2009 SCC 45, 247 C.C.C. (3d) 449 at paras. 16-17 (S.C.C.), where the Court held that the competing interests of justice on a severance application are as follows:

The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in the interests of justice, as per s.591(3) of the Code. 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.

Courts have given shape to the broad criteria established in s.591(3) and have identified factors that can be weighed when deciding whether to sever or not. The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial. It is important to recall that the interests of justice often call for a joint trial. Litchfield, where the Crown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example. Severance can impair not only efficiency but the truth-seeking function of the trial. [Emphasis added].

The Court in Last, supra at para. 18, went on to set out a list of factors derived from the case law that relate to these two broad competing interests:

The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a particular case, avoiding an injustice. Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co-accused persons: R. v. E. (L.) (1994), 1994 1785 (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.), at p. 238; R. v. Cross (1996), 1996 5992 (QC CA), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419; R. v. Cuthbert (1996), 1996 8341 (BC CA), 106 C.C.C. (3d) 28 (B.C.C.A.), at para. 9, aff’d (1997), 1997 397 (SCC), 112 C.C.C. (3d) 96 (S.C.C.) (sub nom. R. v. C. (D.A.)).

On the facts of the Last case, there was little factual or legal nexus between the two counts of sexual assault. As a result, there was no application by the Crown to have the evidence from one count admitted in relation to the other count, pursuant to the similar fact evidence rule. As a further result, there was virtually no overlap in the evidence between the two counts. These factors meant that there was little gain to the administration of justice by conducting one trial rather than two trials, and there was considerable prejudice to the accused. The balance was, therefore, strongly in favour of severance.

In the present case, there is a considerable factual and legal nexus between the two robbery counts, as I will explain below. As a result, the Crown will tender evidence of the two robberies and will seek a ruling that they are admissible as similar fact evidence, regardless of the result of the Motion seeking severance. As a further result, there is overlap in the evidence, duplication of proceedings, and costs to trial efficiency if severance is granted because some of the evidence will have to be called twice. If the evidence from each count is, in fact, properly admissible in relation to the other count, pursuant to the similar fact evidence rule, then both trial efficiency and the truth-seeking function of the trial would be advanced by a joint trial and would be harmed by severance.

[29] In the present case, unlike the above Creary case, the Crown does not rely on the “similar fact” evidence rule in support of its Motion seeking to admit evidence relating to four separate incidents across all four counts in the Indictment. However, the Crown does rely on a closely analogous principle of evidence law, namely, that evidence of “extrinsic misconduct” is admissible where its legitimate probative value in relation to a relevant issue outweighs its prejudicial effect. As Justice Watt explained in Watt’s Manual of Criminal Evidence 2020, [Thomson Reuters Canada Ltd.] at p. 652:

The general principles that govern evidence of extrinsic misconduct do not differ substantially from those that generally bar evidence of similar acts and the bad character of D as part of P’s case in-chief.

Evidence of extrinsic misconduct does not involve reliance upon similarities between the misconduct and the offence(s) charged to support its reception and account for or enhance its probative value. What is critical to its reception is its relevance, otherwise than by its capacity to prove bad character. It may incidentally reveal bad character, but it must be probative of a matter in issue otherwise than through proof of bad character. If the evidence is relevant, otherwise than by proof of disposition or bad character, it is necessary to consider its probative value and prejudicial effect and determine where the balance between them settles. [Italics of Watt J.A. in the original].

[30] Similarly, in R. v. Mostowy (2019), 2019 BCCA 216, 378 C.C.C. (3d) 538 at para. 33 (B.C.C.A.), Newbury J.A. recently stated the following on behalf of the Court:

It is not correct to assume, however, that where the “discreditable conduct” is the subject of a charge that is before the court, it can necessarily be used by the finder of fact as probative of the accused’s guilt on other counts with which he or she is charged. The Crown must still persuade the judge that the probative value of such evidence outweighs its potential for prejudice to the accused [Italics of Newbury J.A., citations omitted].

[31] In domestic violence cases, like the present case, it is well established that evidence of alleged misconduct that is extrinsic to a particular count in the Indictment may be admissible in relation to a number of issues, provided its legitimate probative value outweighs its prejudicial effect. In particular, such evidence may help the trier of fact evaluate three issues: the evolving “relationship” between the parties, sometimes referred to as “the family dynamic” or “the contextual narrative”; the existence of “abusive behaviour” that is capable of inferring a “motive or animus” between the parties; and the presence of “fear” as an explanation for any failure to report criminal conduct or any “failure to leave the relationship.” See: R. v. D.S.F. (1999), 1999 3704 (ON CA), 132 C.C.C. (3d) 97 at paras. 19-26 (Ont. C.A.); R. v. A.C. (2018), 2018 ONCA 333, 360 C.C.C. (3d) 540 at paras. 17-29 (Ont. C.A.); R. v. P.S. (2007), 2007 ONCA 299, 221 C.C.C. (3d) 45 at paras. 18-41 (Ont. C.A.).

[32] The parties agree that the ultimate ruling on the Crown’s Motion, seeking to admit the evidence of the four alleged incidents of misconduct by the accused across all four counts in the Indictment, will be made by the trial judge after hearing the evidence that actually emerges at trial. At the early pre-trial stage of the present Motion, the issue that is before me is whether the Crown’s Motion “has some possibility of success” or, to state the test negatively, whether it is “not likely to succeed.” See: R. v. Last, supra at paras. 32-35; R. v. Blacklaws (2013), 297 C.C.C. (3d) 305 (S.C.C.), affirming Finch C.J.B.C.’s dissent, (2012), 2012 BCCA 217, 285 C.C.C. (3d) 132 (B.C.C.A.). If I am satisfied that there is a reasonable possibility that the evidence relating to Count 3 will be admissible at the end of trial in relation to Counts 1, 2, and 4, or vice versa, then that becomes one of the relevant Last factors to be taken into account when deciding the defence severance Motion. It, therefore, makes sense to decide the Crown’s cross-count “extrinsic misconduct” Motion before deciding the defence severance Motion.

[33] In my view, there is a reasonable possibility that the Crown’s Motion seeking cross-count admissibility of evidence relating to the four separate incidents will succeed at the end of trial. It will, of course, depend on how the evidence actually unfolds at trial. However, based on the present state of the anticipated evidence, I am satisfied that the four incidents are legitimately probative of all three issues identified in the D.S.F. line of authority cited above. In particular, I rely on the following:

• The four incidents extend from July 2017 until the end of November 2018. They reveal a steadily deteriorating “relationship” between the accused P.B., on the one hand, and his wife and two children on the other hand. All four incidents were characterized by allegations of drinking, threatening, and verbally and physically abusive behaviour by P.B. As a result, a climate of fear, resistance, and protectiveness appears to have developed. The two children took on the role of peacemakers, there were calls to the police, followed by partial separation, and then complete separation. This is the “family dynamic” or “contextual narrative” referred to in the case law. It connects the four incidents in a single chronology, such that each incident is understood and either strengthened or weakened by its coherence, or lack of coherence, with this broader “contextual narrative.” See: R. v. D.S.F., supra at para. 22; R. v. A.C., supra at para. 26; R. v. P.S., supra at paras. 19, 24, 31 and 36;

• The four incidents all involve “abusive behaviour” between P.B. and two members of his family (his wife and his son). P.B. appeared to treat his daughter, N.B., differently. As she put it, “he was somewhat nice to me … like I could see a difference, he treated my brother a lot more different … like than he treated me.” The ongoing pattern of abuse towards S.P. and A.B. infers a “motive or animus” between P.B. and these two members of his family. This issue links Counts 1, 2, and 4 (the three counts in which S.P. is the alleged victim). It also links Count 3 to the incidents of extrinsic uncharged abuse towards A.B. described in N.B.’s police statement. See: R. v. D.S.F., supra at paras. 23-25; R. v. P.S., supra at paras. 19 and 36-41;

• The four incidents reveal a climate of “fear” in the family towards P.B. This helps to explain S.P.’s failure to report these incidents to the police in a more timely way and it helps to explain her “failure to leave the relationship”. See: R. v. D.S.F., supra at paras. 26 and 30. S.P.’s credibility will be an important issue at trial and this use of the evidence relating to the four incidents will likely figure in any assessment of her credibility. See: R. v. D.D. (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.).

[34] The legitimate probative value of the cross-count evidence in relation to the above three issues is potentially quite significant, in my view. This is especially true in relation to the first and third issues. The second issue has less weight because the cross-count evidence relating to “motive and animus” will have to be kept separate, as between Counts 1, 2 and 4, on the one hand, and Count 3 on the other hand. P.B.’s animosity towards his wife (inferred from the totality of the evidence relating to Counts 1, 2, and 4) does not appear at present to assist in inferring animosity towards his son (in relation to Count 3), or vice versa.

[35] The prejudicial effect of the cross-count evidence is not significant and it can be controlled by appropriate limiting instructions, as explained in the D.S.F. line of authority cited above. The legitimate uses of the evidence are limited and understandable and can be explained to a jury. The improper uses are also straightforward and understandable. In addition, the two most serious allegations (Counts 1 and 3) are unlikely to lead to propensity/bad character reasoning. A jury would not intuitively think that a man who anally rapes his common law wife is also likely to commit assault in order to discipline his son, or vice versa. I am advised by counsel that the main issue on Count 1 will be S.P.’s credibility whereas the main issue on Count 3 will be the proper scope of s. 43 parental “force by way of correction.” I agree with this assessment of the case. These two issues and the motivation for the two kinds of assault are quite distinct. A jury is unlikely to blur or merge these distinct issues through a line of reasoning that relies on general bad character, especially if the trial judge delivers strong and clear limiting instructions. See: R. v. D.S.F., supra at para. 34; R. v. P.S., supra at paras. 21, 23, and 40; R. v. Creary, supra at para. 46.

[36] For all the above reasons, the Crown’s Motion seeking a pre-trial ruling to the effect that the evidence of four separate incidents is admissible across all four counts in the Indictment, is allowed on the limited Blacklaws basis, namely, that there is a reasonable possibility that the Motion will succeed at trial. Of course, the trial judge will make a final assessment of this issue on the basis of the evidence that actually unfolds at trial.

[37] Turning to the defence severance Motion, the parties generally agree on which Last factors are the most important to consider in this case. In my view, they are as follows:

• The general prejudice to the accused, if Count 3 is tried together with Counts 1, 2 and 4, is not significant and it can be controlled by appropriate limiting instructions, for the reasons already set out above;

• There is a considerable legal and factual nexus across the four counts. In particular, the issues outlined above relating to the “relationship” between the parties, the “family dynamic,” the “contextual narrative,” and the “fear” of P.B. within the family and its relationship to delayed reporting of the four incidents and a “failure to leave the relationship,” are common or overlapping factual and legal issues. They are more likely to be adjudicated accurately at a single trial where all the evidence is heard together;

• The evidence relating to Count 3 is not lengthy or complex;

• Importantly, severance of Count 3 would result in the three Crown witnesses all having to testify twice, at two separate trials. The two children are both witnesses to the Counts 2 and 3 incidents and they both provide important contextual evidence about the “family dynamic” and the “fear” in the household. Requiring two child witnesses to testify twice, at severed trials, in relation to alleged intra-family criminal conduct by their father, is a factor that weighs against severance. S.P. was not present for the Count 3 incident but she received a timely complaint from the two children, shortly after the incident. This prior statement may become important at trial, depending on how the defence is conducted and whether any suggestions of collusion or recent invention emerges. Of course, S.P. also has important evidence relating to the “contextual narrative” and “family dynamic” issue, as described above. As a result, she too would have to testify twice at two severed trials;

• Defence counsel wisely conceded that trial efficiency favours a single joint trial. Conducting two separate trials with overlapping issues and evidence is generally not a good use of scarce court resources;

• The accused’s s.11(b) Charter interests in trial within a reasonable time is a neutral factor in this case. If Count 3 was severed, counsel advises that the accused would re-elect trial by judge alone. He could likely obtain an early judge alone trial date on this one severed count. The Counts 1, 2, and 4 jury trial would remain as presently scheduled, that is, the trial would proceed on April 19, 2022, the same date as the four-count Indictment (the trial has been adjourned from its first trial date, May 25, 2021, due to the cancelation of jury trials during the COVID-19 pandemic);

• Severance of Count 3 could have some impact on the accused’s decision to testify. His present intention is to testify in relation to Counts 1, 2, and 4 but not in relation to Count 3. In other words, he is inclined to testify at a trial relating solely to his wife’s allegations but not at a trial relating solely to his son’s allegations. These present intentions are qualified. They “depend on the evidence adduced by the Crown at trial” and they are said to be “without prejudice to his decision to testify or not in relation to the other counts,” as counsel put it. This factor is entitled to some weight in relation to the severance Motion but it is not “determinative” and it can “be outweighed” by other factors. See: R. v. Last, supra at paras. 26-27; R. v. Creary, supra at paras. 51-2; R. v. A.C., supra at para. 29.

[38] Balancing the above seven factors, I am of the view that the severance Motion should be dismissed. A number of factors weigh strongly in favour of a joint trial. In particular, the factual and legal issues relating to intra-family violence are closely intertwined across all four counts, trial efficiency favours a single trial, and the interests of justice favour having the three vulnerable Crown witnesses testify once at a single trial. On the other hand, the factors favouring severance are not strong. If the evidence does not emerge at trial in a way that permits cross-count admissibility, the trial judge will then instruct the jury to keep the evidence on each count completely separate. See: R. v. Blacklaws, supra; R. v. A.C., supra at paras. 22, 26, and 29. In both Blacklaws and A.C., the evidence was held to be inadmissible across the various counts and yet the pre-trial denial of severance was upheld in both cases. In the present case, there is a reasonable possibility that the evidence relating to all four incidents will be admissible across all four counts, as explained above. Accordingly, the present case provides an equally or even stronger basis for denying severance than either Blacklaws or A.C. Also see: R. v. Creary, supra at para.53.

D. CONCLUSION

[39] For all the above reasons, the defence Motion seeking severance of Count 3 is dismissed and the Crown Motion seeking cross-count admissibility of the evidence at trial is provisionally allowed, subject to the trial judge making a final decision on the Motion on the basis of the evidence that emerges at trial.

M.A. Code J.

Released: May 14, 2021

COURT FILE NO.: CR-20-30000187

DATE: 20210514

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

P.B.

REASONS FOR JUDGeMENT on two pre-trial motions

M.A. Code J.

Released: May 14, 2021