COURT FILE NO.: 306/20
DATE: 2021/05/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
C.C.
Applicant
Adam Campbell, for the Respondent
Jenny Prosser, for the Applicant
HEARD: April 21, 2021
RESTRICTION ON PUBLICATION
By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR DECISION
GEORGE J.
BACKGROUND
[1] The Applicant stands charged on a multi-count Indictment. It is alleged that he failed to comply with a release order by communicating with and attending at the residence of K.M.; failed to comply with a release order by possessing a firearm; possessed a shotgun for the purpose of committing an offence; possessed a shotgun without holding a licence authorizing same; possessed prohibited ammunition; sexually assaulted K.M.; harassed M.M. by repeatedly communicating with her (two counts); and uttered threats against M.M..
[2] All charges are scheduled for a five-day jury trial commencing July 26, 2021.
THIS APPLICATION
[3] The Applicant moves for severance pursuant to s. 591(3) of the Criminal Code, which provides that:
591(3). The court may, where it is satisfied that the interests of justice so require, order
(a) That the accused or defendant be tried separately on one or more of the counts…
[4] He seeks to have scheduled five separate trials, with the counts being severed as follows:
i) Set 1 – Counts 2 and 3 – These are both failures to comply by attending at the home of and communicating with K.M.
ii) Set 2 – Counts 1, 6, 7 and 8 - I will call these the weapons charges which includes a failure to comply by possessing a weapon.
iii) Set 3 – Count 10 – Alleges a sexual assault upon K.M..
iv) Set 4 – Counts 4 and 5 - Both of these offences are alleged to have been committed against M.M. (harassment and threats).
v) Set 5 – Count 9 - This captures the alleged harassment of K.M.
[5] The first set - counts 2 and 3 - involve allegations that the Applicant contacted K.M. in violation of a non-communication order. She says the accused texted her and attended at her home.
[6] The second set - counts 1, 6, 7 and 8 - relate to allegations that the Applicant attended at K.M.’s residence with a firearm. K.M. indicates that the Applicant brought it for her to use as protection, and that he loaded it and instructed her on how to use it. It is said that K.M.’s mother, M.M., was present during this interaction. In her statement to the police K.M. advises that she did not accept the firearm and had the Applicant to take it with him when he left.
[7] The third set – count 10 – relates to K.M.’s allegation that the Applicant sexually assaulted her by repeatedly making unwanted sexual advances, and by rubbing her vagina under a table while at a local restaurant.
[8] The fourth set – counts 4 and 5 – arise from the allegation that the Applicant harassed and threatened M.M.. Count 4 alleges that from June 25 to June 28, 2020 the Applicant sent her 23 messages. Count 5 alleges that, on June 25, 2020, the Applicant sent M.M. a text that indicated people from Toronto were coming to collect money he says she owed him, and that if she did not comply, they would “take her finger as interest”.
[9] The last set – count 9 – arises from a statement K.M. provided to the police after the Applicant’s arrest. In it she alleges that after she ended their relationship the Applicant continued to text her asking her for various things, including money, and that he threatened to post intimate images of her if she did not do so. She further advises that while she blocked his number, the Applicant continued to contact her via text from other numbers.
ISSUE
[10] Is severance in the interests of justice? If so, how should the counts be severed?
LAW / GUIDING PRINCIPLES
[11] Applicant counsel cites this passage from the Supreme Court decision in R. v. Last, 2009 SCC 45 (para. 16):
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…[t]he obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.
[12] The Applicant contends that there is a substantial risk that evidence on some of the counts could be improperly applied to others, and that the jury will rely upon the sheer number of counts to bolster K.M. and M.M.’s credibility. He argues that the five sets of charges are distinct and unrelated.
[13] When determining the appropriateness of severance, the Supreme Court in Last directs that these factors be considered:
i) General prejudice to the accused.
ii) Legal and factual nexus between counts.
iii) Complexity of the evidence.
iv) Whether the accused intends to testify on one count but not another.
v) Possibility of inconsistent verdicts.
vi) Desire to avoid a multiplicity of proceedings.
vii) Use of similar fact evidence at trial.
viii) Length of the trial having regard to the evidence to be called.
ix) Potential prejudice to the accused with respect to the right to be tried within a reasonable time.
x) Existence of antagonistic defences as between co-accused.
[14] This is, at its essence, a question of fairness. That is, as its overarching consideration this assessment is about whether the Applicant’s fair trial rights, enshrined in ss. 7 and 11(d) of the Charter, are adequately protected as it now stands. Or, whether severance is necessary in order to achieve that fundamental objective and avoid the risk of a miscarriage of justice; see R. v. Vora, 2017 ONSC 6129 para. 19.
POSITION OF PARTIES
[15] Let’s look first at whether there is a risk of prejudice, and whether a jury might improperly engage in propensity reasoning. The Applicant’s central complaint is that the mere existence of multiple counts on the Indictment could, in and of itself, lead the jury to automatically view him with suspicion and make it more likely that they apply evidence to counts for which it is not relevant. Put another way, the jury might conclude that given the number of charges, and their varied nature, the Applicant must be guilty of at least something and that he is generally a bad person inclined to engage in bad conduct. The Applicant submits that while a limiting instruction could be of some benefit it would, in these circumstances, fall short of what would be required to protect his right to a fair trial. To the question of how prejudice would impact the issue of credibility, Applicant counsel puts it this way at para. 25 of her factum:
Here, it is submitted that there is a significant risk that if presented with the requirement of distinct credibility assessments regarding the complainant and her mother in relation to the separate sets of charges arising out of distinct events, the triers of fact may be improperly influenced in their findings on all counts. The separate sets of charges are distinct in their factual underpinnings and in their legal elements. A finding of guilt on some of the charges in one set would not necessitate findings of guilt on the charges in the other sets. However, it is submitted that there is a significant risk that if presented with the requirement of distinct credibility assessments regarding the complainant the trier of fact could use a credibility finding on one set to improperly bolster any findings regarding the other. In particular, there is a risk that any findings of guilt beyond a reasonable doubt regarding the criminal harassment and breach charges could be improperly used by the trier of fact to bolster the complainant’s credibility regarding the charges captured in sets 2 and 3 involving the firearm and sexual assault allegations.
[16] The Crown takes a very different view on the issue of prejudice. It submits that I should be careful to not conflate prejudice with evidence that favours the Crown and might increase the chance of conviction. These are not the same thing. I am being asked to carefully scrutinize the counts and to compare across the Indictment all of the allegations. After doing so, it says I should conclude that the interests of justice require one trial.
[17] It references two authorities that highlight what is required in such an analysis. First, in R. v. M.(B.) 1998 13326 (ON CA), 130 C.C.C. (3d) 353, the Court of Appeal found that the bestiality count should be severed taking the view that it would inevitably cause the jury to engage in prohibited reasoning and conclude that the accused was a bad person and someone likely to act sexually inappropriate. In my view, carving out the allegation of bestiality made perfect sense. Second, in R. v. R.E.M. [2004] B.C.J. No. 1848 (B.C.S.C.) the court refused a request for severance finding that none of the accused’s alleged behaviour (as captured in the various counts) was more deviant than any of the others and, as such, there was little risk that the jury would be improperly influenced. The accused was charged with sexual assault, indecent assault, and gross indecency relating to two complainants. Notwithstanding the fact there were two different complainants, given the nature of these charges the decision to not sever made sense as well.
[18] Next, is there a legal and factual nexus between the counts? The Applicant says the nexus is limited in that the various counts are based on different fact-sets and give rise to legal defences that are available to some and not others. In other words, the analysis and required elements for some counts have no bearing on the analysis and required elements for others. He acknowledges that the context of the relationships are relevant but argues that this is overwhelmed by the different presenting issues as between sets 4 and 5 and sets 2 and 3. That is, sets 2 and 3 rely for the most part on a credibility assessment about two separate incidents, while sets 4 and 5 tasks the Crown with establishing who sent the text messages, when they were sent, and whether the various numbers used have any connection to the Applicant. He argues that, once established, the relevance of the original allegations is limited in that it speaks only to the complainant’s fear, if any, with no reciprocal relationship (i.e. nothing arising from sets 4 and 5 has any legal relevance to sets 1 and 2).
[19] He cites other complications including the prospect of a s. 276 application, and the risk of a credibility assessment on sets 1, 4 and 5 improperly bolstering the credibility assessment on set 5.
[20] The Applicant makes a similar argument in respect of a factual nexus, which also bears some resemblance to his position on prejudice. He submits that the real concern lies in the possibility of a jury concluding that if he engaged in the behaviour alleged in any or some of the counts then he must be guilty on all remaining counts, which of course is prohibited reasoning.
[21] His bottom-line position is that there is no truth-seeking interest in keeping the five sets of charges together.
[22] For its part the Crown relies upon the courts comments in R. v. Ticknovich, 2003 ABQB 597, [2003] A.J. No. 905 (Alta. Q.B.) where, at paras. 70-71, the presiding justice writes:
The concept of legal nexus refers in the main to whether there would be a substantively [sic] an overlapping transaction or transactions, such as discussed in Giroux, or whether there would be essential elements in common as between counts – so as to raise the risk of inconsistency of verdict if severance occurred – or whether there is a commonality of the matters such as to give rise to potential for a res judicata confusion. Determining legal nexus can be assisted by reference to the rules in Kienapple…and Prince…, and in Grdic…and Duhamel as to res judicata, and Stillipp…and Koury…as to inconsistent verdicts.
[23] The Crown’s bottom-line position is that there is no obligation on its part to prove a nexus in a strong or definite manner in order to hold off a severance motion and that, in our instance, while perhaps not part of the same transaction all counts are surely related transactions. It asks that I be informed by Moldaver J.A.’s comments in R. v. Melaragni (1992) 1991 11738 (ON SC), 72 C.C.C. (3d) 339 (Ont. Ct. Gen. Div.) where he refused to apply the more restrictive meaning of the word ‘transaction’ under s. 548 of the Criminal Code to the issue of joinder and severance. On that issue he writes this:
In my opinion, when considering the definition of “transaction” in relation to the conduct of co-accused, the thoughts expressed by Mr. Justice Sachs, speaking on behalf of the English Court of Appeal in the case of R. v. Assim (1966), 50 Cr. App. A. 224 are apposite. At p. 236 his Lordship stated:
As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other, than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert, but is not limited to such cases.
[24] Next, complexity. I am not going to spend much time on this other than to point out the Applicant’s position that to try all of these counts together will increase the complexity which, he argues, weighs in favour of severance. The Crown disagrees, as do I. This is, in the unique circumstances of this case, a barely relevant factor which is at best neutral. That is to say, to deny severance would not render the jury’s task too complicated nor would it lead to confusion. Not to mention the fact that the jurisprudence is clear in that just because the jury’s adjudicative function may be more difficult or complicated does not, standing on its own, render the trial unfair. It is a high bar indeed to successfully argue severance on the basis of complexity, and the Applicant has failed to do so.
[25] What of the risk the Applicant would elect to testify in relation to some counts but not others? While not determinative, there is no question that this factor does weigh in favour of severance. The Applicant, while not providing any guarantee, submits that it is possible, if not likely, that he will have to testify in relation to set 3 but not in relation to sets 1, 2, 4 and 5. Even the Crown concedes that this is an important consideration but submits it is not determinative and is but one factor amongst many.
[26] I am also not going to spend much time on the possibility of inconsistent verdicts as I see the risk of that being quite low.
[27] Lastly, the Applicant argues that neither the desire to avoid a multiplicity of proceedings, nor the temptation to preserve judicial resources, outweigh the potential prejudice. He further commits to waiving his rights under s. 11(b) of the Charter to accommodate the inevitable delay that will be occasioned by setting several different trial dates.
ANALYSIS
[28] The onus rests on the Applicant to establish that severance is in the interests of justice. He must do so on a balance of probabilities.
[29] Has he done so?
[30] Before I attempt to answer that question, I will make two basic points. First, there is a presumption of joinder. This is well settled, the underlying rationale being that severance often diminishes the truth-seeking function of a trial and, of course, it inarguably impairs judicial efficiency. Second, s. 591 does not require that offences contained within an Indictment meet the fairly rigorous standard of similar fact evidence. The reason for this is clear as were it the case, severance would become the rule and not the exception. Not to mention the fact that we are to presume that a jury can follow limiting instructions and apply the law as it is explained to them.
[31] On the issue of factual and legal nexus I find that the analysis and elements for each count will inevitably require a credibility assessment of the complainant’s evidence. That is to say, given the nature of these charges and how this situation has evolved, the jury will have no choice but to consider the entire context of the Applicant’s relationship with K.M., and how M.M. found herself in the middle of all this. If not one transaction, these are all clearly related transactions. If you closely examine the statements from both complainants, and upon a review of the various text messages that have been filed, understanding each count and their corresponding allegation is critical to understanding all of the counts. These simply cannot be disassociated from each other. For instance, I find that the breach counts would, should he choose to testify in respect of them, require the Applicant to testify about many of the allegations before the court, even if severance is granted. Similarly, should he choose to testify about any of the weapons offences he would necessarily be called upon to testify about his relationship with K.M., generally, and to specifically explain his attendances at her residence, again even if severance is granted. It would simply be impossible to detach these two sets of charges from each other.
[32] The same applies to the set of charges relating to M.M.. How would that even work? To isolate M.M.’s evidence would invariably create confusion and lack all context, especially when you consider the various text messages and what they potentially mean.
[33] Lastly, I agree with the Crown that the Applicant overstates the import and significance of a s. 276 and/or s. 278 application. What I mean is, the alleged sexual misconduct is not what is contemplated in the sections, but is, rather, the very essence of the s. 271 count. That is to say, that evidence would not be introduced for any prohibited purpose and would be relevant only to that specific count and any associated breach of a court order. We must remember that juries are not fragile flowers inherently prone to misusing evidence and misunderstanding limiting instructions. On the contrary we are to presume that they will assiduously follow instructions and properly apply the law (as described for them) to facts (as they find them). It is true that in some cases the risk of misuse becomes too high, but that is not the case here.
[34] The issue of similar fact evidence deserves little attention. It is, on the unique facts of this case, essentially a neutral factor. While the admissibility of similar fact evidence favours joinder, and the inadmissibility of similar fact evidence favours severance, neither proposition is dispositive. Here, while the Crown has given no indication that it intends on bringing a similar fact application, the point remains that even if it does not (or does and is unsuccessful) I am to presume that a jury can follow any limiting instructions provided to them.
[35] On the issue of prejudice, when I earlier in these reasons set out the positions of each party, I made the point that prejudice is not to be confused with evidence that increases the chances of conviction. That is the whole point of a criminal prosecution; to determine whether the Crown has proven the elements of the offences charged beyond a reasonable doubt. And, surely, in that pursuit the Crown is going to attempt to garner and present the strongest admissible evidence available to it which would tend to establish guilt. Put another way is to say that compelling evidence that might point to guilt is, I suppose, prejudicial in that it might be harmful or detrimental to the Applicant’s case, but it is not prejudicial in the way it is understood here (i.e. when the prejudicial impact outweighs any probative value). Tying this back to the proper use of evidence, again, a jury - in using their collective common sense to fulfill their fact-finding task - are duty bound to follow the law as it is explained to them. I realize I have made this point a few times already, but we must presume that the jury at the Applicant’s trial will be capable of following the trial judge’s instructions and avoid impermissible reasoning. While in some cases the risk of misuse is too high, that is simply not the case here.
[36] I will say little on the issue of complexity other than to point out what I think is obvious, which is none of the counts standing on their own are in any way complex. Does keeping them packaged together increase their complexity? I say no. Here we have two complainants, two potential police officer witnesses, and a series of text messages (that, according to the Crown, speak to each complainant, the alleged harassment, and to at least one of the breaches). This, assuming there will be clear, accurate and concise instructions from the presiding justice, makes joinder not just palatable and manageable, but preferrable.
[37] To the Applicant’s complaint that he might want to testify on some counts but not others, while I do believe this will always generally favour severance, there is very little to analyze on this record as he has not articulated what he may or may not want to testify about. Of course he has no obligation to do so, and even if he did no one could hold him to it, but the practical reality is that this aspect of his application requires that more be said about it. At the very least I must be given some sense of what his anticipated testimony would be, otherwise his position is but a bald and conclusory statement.
[38] Moving on to the desire to avoid a multiplicity of proceedings. While this will always be the preference, I understand that it is not not always possible. In some cases it will be abundantly clear that counts on an Indictment are completely unrelated and entirely detached from each other. However, as I have said that is not the case here. Even if I am wrong, the analysis is not as simple as focussing on the Applicant’s interests. I must balance his interests with those of the Crown and witnesses. The jurisprudence, both under s. 591 of the Criminal Code and s. 7 of the Charter, make this point very clearly. Practical considerations, including the plight of complainants and the prospect of them having to give testimony at more than one proceeding, are at play here and must be given some weight. I would go so far as to say that the laudable goal of requiring a complainant to testify once should only be displaced when the need for them to testify on multiple occasions becomes unavoidable. I find there to be no such imperative in this case.
[39] To order severance on the terms suggested by the Applicant would require five separate trials; potentially five separate juries; and require the complainant to testify on more than one occasion. While some factors do weigh in favour of severance, more weigh against it. But it is not just that. The practical issues that present themselves here also weigh in favour of one trial, including the impact of Covid-19 and in particular the backlog it has and will continue to create.
CONCLUSION
[40] In this case we have overlapping evidence, which creates a factual nexus; and a common credibility assessment, which creates a legal nexus. This, together with my finding on prejudice - and the practical considerations just outlined (including the impact of Covid-19 and witness convenience) - means severance is not in the interests of justice.
[41] The application for severance is, therefore, dismissed.
Date: May 25, 2021 Justice Jonathon C. George
COURT FILE NO.: 306/20
DATE: 2021/05/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
-and-
C.C.
Applicant
REASONS FOR decision
George J.
Released: May 25, 2021