SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CJ- 9609

DATE: 20210601

RE: R. v. G.B.

BEFORE: Justice D.A. Broad

COUNSEL: D. Russell, for the Respondent/Crown

R.S. Bal, for the Applicant/Accused

HEARD: May 17,18, 19 and 20, 2021

ENDORSEMENT

[1] The applicant/accused G.B. (the “applicant”) is charged with 8 counts in respect of three separate complainants pursuant to a preferred indictment dated January 27, 2020 summarized as follows:

(a) one count of sexual assault, two counts of touching with a part of his body for a sexual purpose a person under the age of 16 years, and one count of indecent exposure for a sexual purpose in respect of the complainant H.B., during a charge period of January 1, 2004 and December 31, 2015;

(b) one count of sexual assault and one count of touching with a part of his body for a sexual purpose a person under the age of 16 years in respect of the complainant E.S. during a charge period of January 1, 2015 to December 31, 2015; and

(c) one count of sexual assault and one count of touching with a part of his body for a sexual purpose a person under the age of 16 years in respect of the complainant A.H. during a charge period of January 1, 2015 to December 31, 2015.

[2] H.B. is the daughter of the applicant, A.H. is the niece, by marriage, of the applicant and E.S. was a family friend of the applicant.

[3] The applicant seeks an order pursuant to s. 591(3) of the Criminal Code that he be tried separately on the counts relating to each of the three complainants, or alternatively, that he be tried separately on the count relating to the complainant H.B.

[4] The Crown has brought an application for an order admitting the evidence of H.B., E.S. and A.H. across the counts in the indictment as similar fact evidence.

[5] The applicant has elected to be tried by judge and jury, however, Mr. Bal advised in submissions that should the counts related to H.B. be severed from the counts relating to the other two complainants, he would be prepared to re-elect to be tried by judge alone in respect of the counts related to H.B.

Crown’s application for admission of similar fact evidence

[6] Following receipt of submissions from counsel, and with their concurrence, I have determined for the following reasons that it is premature to rule upon the Crown’s application for the admission of similar fact evidence across the counts prior to or concurrently with the applicant’s application for severance.

[7] In the case of R. v. Brahaney, 2016 ONCJ 132 (O.C.J.) Paciocco, J. (as he then was) stated as follows at para. 22:

It is not the role of a trial judge considering a severance application to decide on the admissibility of similar fact evidence, and I should not be taken to be doing so. Trial judges conducting severance applications are not to resolve the admission of similar fact evidence at the severance application stage for practical reasons having to do with the inadequacy of the evidentiary foundation, and because the accused bears the burden on a severance application, whereas the Crown bears the burden at trial of satisfying the similar fact evidence rule. Accordingly, during a severance motion the trial judge is simply to determine whether a "count-to-count" similar fact evidence application is viable: R. v. Wilson, supra; R. v. Minister, 2012 ONSC 1040, [2012] O.J. No. 741 (Ont. S.C.J.) at para 46; R. v. B. (I.), [2013] O.J. No. 1615 (Ont. S.C.J.) at para 26.

[8] This passage from Brahaney was approved of in R. v. Humberto Papena-Huerta, 2017 ONSC 6552 (S.C.J.) at para. 6-9, R. v. Nurse-Daniels, 2018 ONSC 668 (S.C.J.) at para. 24, and R. v. Ali, 2019 ONSC 2927 (S.C.J.) at para. 59.

[9] In Humberto Papena-Huerta Healey, J. made reference to the comments of the Supreme Court of Canada in R. v. Last, 2009 SCC 45 (S.C.C.) at para. 34, in which the Court noted that there is no procedural rule requiring the Crown to bring the similar fact evidence application at the time of the accused’s severance application, and that in many cases such an assessment may best be done once all of the Crown’s evidence has been tendered.

[10] As was ordered by Healey J. in Humberto Papena-Huerta (see para. 6), the Crown’s application for the admission of similar fact evidence in the case at bar may be renewed at the conclusion of the Crown’s evidence, or “whenever counsel convinces the court is the most appropriate time as the trial unfolds.”

The legal framework for severance

[11] S. 591(3)(a) of the Criminal Code provides as follows:

(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;

[12] The accused bears the burden of establishing on a balance of probabilities that the interests of justice require an order for severance (see R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at para. 52).

[13] In R. v. Last, 2009 SCC 45 Deschamps, J., writing for the Court, observed at para. 16 that the ultimate question on an application for severance is whether severance is required in the interest of justice, which encompass both the accused’s right to be tried on the evidence admissible against him or her and society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The risk when counts are tried together is that the evidence admissible in one count will influence the verdict on an unrelated count.

[14] Deschamps, J. went on at para. 17 to note that 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, emphasizing that the interests of justice often call for a joint trial as severance can impair not only efficiency but the truth-seeking function of the trial.

[15] The Court in Last at para. 18 identified a non-exhaustive list of factors to consider in determining how the interest of justice may be served in a particular case. These factors include:

(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 having regard to the evidence to be called; and

(i) the potential prejudice to the accused with respect to the right to be tried within a reasonable time.

[16] An additional factor relating to the existence or likelihood of antagonistic defences is not relevant in the case at bar.

[17] At para. 47 of Last the Court directed that all the factors must be considered and weighed cumulatively in order to determine whether the risk of prejudice to the accused clearly outweighs any benefits to the administration of justice in trying the counts together.

Facts

[18] The Crown’s evidence, as set out in its Factum in support of its similar fact evidence application with respect to the counts in the indictment, may be summarized as follows:

(a) The applicant’s family:

(i) the applicant and his estranged wife K.B. have two children - the complainant and a son I.B. (collectively the “B family”);

(b) The complainant A.H.:

(i) A.H. is a niece by marriage to the applicant. She was close to her cousin I.B. Between August 1 and August 7, 2018 she came to visit I.B. in Cambridge. The applicant was to look after A.H. during this time. She was 15 years of age at the time;

(ii) on August 4, the applicant took I.B. and A.H. to a campground and stayed in a camper/trailer owned by a friend or acquaintance. I.B. was to sleep in one bunk bed, with A.H. in the bunk above and the applicant on a bed in the same room;

(iii) the applicant is alleged to have given both I.B. and A.H. marijuana gummies. A.H. asked the applicant for more as she was not feeling any effects, and he gave her a part gummy;

(iv) A.H. then went to the trailer and laid down on the upper bunk;

(v) the applicant is alleged to have entered the trailer around 10 PM. He asked A.H. if she was “OK.” She responded that she was;

(vi) The applicant is alleged to have asked A.H. repeatedly if it was okay as he slid his hand down her arm and onto her breasts over her clothing. He then got into the bunk with her. A.H. rolled over and began to cry;

(vii) at this point I.B. entered the trailer and the applicant quickly got off the bunk and left the trailer;

(viii) A.H. advised I.B. what had happened and asked him to sleep with her in the upper bunk for safety concerns. I.B. later suggested to her that it was “nothing” and that his father was perhaps influenced by alcohol and drugs;

(ix) A.H. initially told her mother Ki who then called A.H.’s father and A.H.’s stepmother Ka who is K.B.’s sister;

(x) Ka advised K.B. of A.H.’s allegation. K.B. was concerned as her daughter and A.H. were actively involved in a local cheerleading squad. There were often young girls in the B. family residence and K.B. and the applicant were occasionally on overnight trips to competitions with young women;

(xi) K.B. spoke to her daughter H.B.

(c) The complainant H.B.

(i) H.B. alleges that, when she was approximately 7 years old, she was repeatedly sexually assaulted in her bedroom and in the basement of the family home where there was a fort set up used to sleep in. The applicant is alleged to have touched H.B.’s vagina with his hand and exposed his genitals to her;

(ii) H.B. also alleges that the applicant would invite her to touch his penis with her hand and would take her hand and force her to touch his penis for a sexual purpose and gratification;

(iii) Most of these incidents occurred when H.B. was very young. They occurred less frequently when H.B. was in grade 7 and 8 and ended prior to grade 9 when she was 13 or 14;

(iv) H.B. alleged that there was one later incident when she was on vacation in St. Lucia for a family wedding. She was in one of the beds in the room shared by the four members of the B. family - the applicant, K.B., I.B. and herself. The applicant had been drinking and came to her bed and took the covers off her. H.B. was afraid of what the applicant would do and swatted him and ordered him to stop. The applicant said he thought it was “mom”;

(v) H.B. never told her mother what had happened to her as she was embarrassed and did not want to upset her mother. She later confided in her boyfriend;

(vi) When A.H.’ s allegations were made, K.B. asked H.B. if something had happened to her and H.B. advised her what had occurred;

(d) The complainant E.S.

(i) E.S. was in the same cheerleading squad as H.B. and was also a close friend of the B family. Along with other cheerleaders she had on occasion, travelled to competitions out of town and stayed at hotels with the B family. In her police statement E.S. described the applicant as a “father figure” to her;

(ii) E.S. recalled an incident when she was 13 years of age. She had been babysitting at the M family residence while her parents were out with a group of friends including the applicant and K.B.;

(iii) When Mr. M came home, he brought the applicant into the residence with him. Mr. M then went to bed and the applicant went to the couch where E.S. was sitting while waiting for her parents to pick her up;

(iv) The applicant had E.S. move closer to him and put his arm around her. He began to rub her torso over her clothing. He then moved his hand lower until his hand was in E.S.’s lap on top of her vagina, again over her clothing. She moved his hand away, but he kept moving it back;

(v) E.S. then got up and went to the kitchen to get away from the applicant who followed her, approaching her from behind and engaging in unwanted physical contact. He rubbed her side after lifting her T-shirt up;

(vi) E.S. returned to the couch. The applicant followed and put E.S. on top of him while attempting to touch her vagina. She kept her hands on her lap and he tried to pull them off;

(vii) E.S.’s parents arrive shortly thereafter to pick her up. On the next day the applicant texted E.S. Her father saw the text and questioned the applicant on the reason for his texting E.S. E.S. did not disclose the touching incident at this time to her parents;

(viii) Although E.S. had disclosed the assault to two of her close friends, her disclosure to her mother and to the police took place only after the incident involving A.H. came to light.

[19] The Crown adds the following facts:

(a) A.H. and E.S. do not know one another

(b) A.H.’s mother did not know K.B.;

(c) H.B. was a bit older than A.H. and E.S. and knew them but not as close friends;

(d) H.B. knows that the applicant had been drinking in St. Lucia and believes he had been at least on some of the occasions when she was very young. There was a bar in the basement where the fort was;

(e) the applicant had been drinking on the occasions when the incidents with A.H. and E.S. are alleged to have occurred.

[20] Applicant accepts as generally correct the foregoing summary of facts for the purposes of the severance application but adds the following:

(a) at the time that the allegations were made the applicant and K.B. were in the process of separating. H.B. spoke to police on September 1, 2018 and advised that K.B. had moved out of the home in April. She informed the police that K.B. was “wanting to separate”;

(b) H.B. advised police that she was brought to the police station to speak to police after K.B. learned about what allegedly transpired between the applicant and A.H.;

(c) A.H. also spoke with police on September 1, 2018;

(d) E.S. spoke to police on September 7, 2018 after her mother had received information from one of her friends pertaining to the applicant;

(e) A.H. told police that she was a bit “fuzzy” on some of the details since the incident was alleged to have occurred one month previously;

(f) A.H. repeatedly made reference in her statement to “we” - for example she said that “we were trying to sort out, like, details and dates when we were in the other room.” Regarding the date of the incident, she told police “we’re pretty sure it’s the Saturday.”

(g) Although A.H. claimed to have told her boyfriend what had occurred, she deleted those text messages;

(h) A.H. told police that she was aware that K.B. would be checking with H.B. to see if anything untoward had transpired;

(i) H.B. told police that K.B. disclosed to her that an incident occurred with A.H. at the beginning of August. H.B. indicated that her father had touched her also but that such touching had ceased by 2015. The touching described by H.B. included the applicant exposing himself and having her touch his penis;

(j) H.B. claims that she told her boyfriend about this in November or December, presumably of 2017;

(k) E.S.’s allegation came to light after those of A.H. and H.B. Her disclosure came about as result of the conversation that her mother had with a friend which led to E.S. being questioned about the applicant.

Consideration of the Last Factors

(a) General prejudice to the applicant

[21] With respect to the question of general prejudice to the applicant, the applicant submits that the allegations relating to his biological daughter H.B. are of a higher degree of severity in contrast to the allegations of A.H. and E.S. by virtue of their familial relationship. He says that the risk of the jury becoming inflamed by allegations of sexual abuse of a father against his biological daughter is high, heightening the risk of improper propensity reasoning.

[22] Although the Crown acknowledges that complexity and prejudice may be significant factors in a jury trial, it submits that consolidation of counts is not unfair merely because the adjudicative function might be complicated, and the Supreme Court of Canada has acknowledged modern jury capacity.

[23] Jurors can be entrusted to sort out counts and evidence and are presumed to obey the instructions they get as to the use of risky evidence (see R. v. Ticknovich, 2003 ABQB 597 (Alta. Q.B.) at paras. 52-53).

[24] I agree with the position of the Crown and would not view H.B.’s biological relationship with the applicant as contributing materially to general prejudice against him so as to favour severance. The Crown’s evidence relating to the three complainants is not complex, reducing the potential for cross-pollination from the evidence relating to H.B. to that relating to A.H. and E.S.

(b) Legal and factual nexus

[25] The applicant submits that there is no legal or factual nexus between the counts relating to the three separate complainants.

[26] The applicant argues that all of the alleged incidents represent separate transactions separated by time and place. The alleged incidents involving H.B. commenced when she was 7 or 8 years of age and, with the exception of the incident in St. Lucia, took place in the family home. The alleged incident involving A.H. occurred when she was 15 and took place in a trailer at the campground and the alleged incident involving E.S. occurred when she was 13 at the home of a family friend where E.S. was babysitting. The applicant points out marked differences between the nature of the touching alleged to have occurred as between the three complainants.

[27] In the case of R. v. L. (C.L.), 2012 ONSC 6603 (S.C.J.) Hennessey, J., citing Ticknovich, observed at para. 18 that similar facts are not the same as factual nexus and that the concept of factual nexus includes inter alia whether there would be substantially overlapping transactions. She noted that nexus connotes connection, bond or link.

[28] Watson, J. stated at para. 66-67 of Ticknovich that the logic of a joint trial is more compelling where there is a continuity of events in time and means than where there is simply a collation of events, largely linked together only by the identity of the person charged. However, Watson, J. went on to observe that it does not fall to the Crown to prove nexus in a strong or definitive manner in order to rebuff a motion for severance.

[29] Although the applicant submits that the allegations respecting the three separate complainants represent separate transactions, he does acknowledge a connection between the allegations respecting all three complainants in the timing and circumstances under which the allegations were disclosed to police. The applicant raises the issue of collusion and characterizes K.B. as the “centrepiece” to the complainants coming forward to speak to police, A.H. and H.B. on the same day, and E.S. six days later. K.B.’s marital separation from the applicant formed a backdrop to the disclosures to police.

[30] In the case of R. v. S. (E.), 2000 3240 (ON CA), [2000] O.J. No. 405 (C.A.) the Court of Appeal upheld the decision of the trial judge Speyer, J. to dismiss the accused’s application for severance in a case involving charges against the accused of sexual assault on a male complainant and on a female complainant.

[31] Although Speyer, J. in S.(E.) ruled against the Crown’s application for the admission of similar fact evidence across the counts in the indictment, he found that there was “a strong factual nexus between the counts as related to the important issue of disclosure,” noting that disclosure of the respective complaints occurred within the context of a hotly contested custody dispute.

[32] The Speyer, J. went on to state, as reported at paragraph 15 of the appeal decision, “the jury, in my view, is entitled to know the full story relating to the disclosure. It is artificial for the jury only to hear evidence on how one complainant came to light when the accused’s position is that the two complainants fabricated the allegations in support of Mrs. [H’s] claim for custody.”

[33] In order for the jury in the case at bar to have a full understanding of circumstances under which the three complainants came forward with their initial disclosures to police, it will be necessary to receive the evidence of all three of them.

[34] At para. 18 of the appeal decision in S.(E.) MacPherson, J.A., writing for the panel, stated:

While the counts encompassed separate transactions and complainants, there was an important factual nexus between the assaults. The allegations were disclosed at the same time under similar circumstances… It would have been artificial to separate the timing and reasons for both complainants’ disclosure from the fact that the disclosure led to criminal charges against the appellant relating to both complainants. It cannot, therefore, be said that the trial judge acted unjudicially in refusing severance.

[35] In my view there is a factual and legal nexus between the counts relating to each of the three complainants with respect to the issues of disclosure and possible collusion. Particularly, given that it is not incumbent upon the Crown to prove nexus in a strong or definitive manner, I find that this factor favours joinder of the counts.

(c) Complexity of the evidence

[36] Neither party argued that the evidence relating to the three separate complainants is complex. I agree. It is expected that the evidence of the complainants will be brief and discrete, and trying them together would not add to the complexity of the proceeding.

(d) Applicant’s intention to testify

[37] The Supreme Court of Canada in Last stated at para. 25 that, in assessing the accused’s testimonial intention on a severance application, the underlying concern is for the accused’s ability to control his defence.

[38] As noted by Warkintin, J. in R. v. Boone, 2012 ONSC 6003 (S.C.J.) at para. 17-18 (citing Last at para. 26), it is not sufficient for an accused to merely assert that he intends to testify on one count and not on another for a severance application to be granted. The accused must provide the court with sufficient information to establish an objective rationale for testifying on some counts and not on others, and “ultimately, the accused bears the burden of providing the trial judge with sufficient information to convey that there is substance to his intention to testify.”

[39] Deschamps, J. in Last emphasized that an accused’s provisional intention with respect to testifying is a consideration which should be given considerable weight, it is but one factor to be balanced with all the others and, even if his intention is objectively justifiable, it does not necessarily determine a severance application as it can be counterbalanced by other circumstances that the judge finds may prevent the accused from testifying or be outweighed by factors that demonstrate that the interest of justice require a joint trial.

[40] Although the applicant did not provide an affidavit addressing his testimonial intentions, Mr. Bal stated that the applicant intends to testify in response to the allegations of H.B. but not with respect to the allegations of A.H. or E.S. His position is that he will need to testify in order to seek to undermine H.B.’s credibility. In contrast, there are third party witnesses who can be called for the purpose of undermining the credibility of each of A.H. and E.S., namely I.B. in the case of A.H. and members of the M. family in the case of E.S. Although Mr. Russell indicated that the Crown does not intend to call I.B., Mr. Bal indicated that he is prepared to do so.

[41] Although it is accepted that the applicant’s stated testimonial intentions must be given considerable weight given the central importance of an accused’s ability to control his defence, the burden is still on the accused to provide the court with sufficient information to show that there is substance to his intention to testify on the counts involving H.B. and not the other complainants.

[42] In my view, the applicant has failed to discharge this burden. Although he was able to identify witnesses who he intends to cross-examine in order to seek to undermine the credibility of each of A.H. and E.S., he did not provide information giving substance to how those witnesses may assist in doing so.

[43] This factor does not therefore favour severance.

(e) The possibility of inconsistent verdicts

[44] Given the question of collusion raised by the defence, the risk of inconsistent verdicts would be heightened by severance. Although this is not a significant factor, it is one to be weighed in the balance.

(f) The desire to avoid a multiplicity of proceedings

[45] The objective of avoiding a multiplicity of proceedings is made more acute by the existence of the Crown’s application for the admission of similar fact evidence. If the counts relating to the three separate complainants were severed, or if only the counts relating to H. B. were severed, each of the young complainants would be required to testify at two or three separate trials concerning sensitive and intrusive matters.

[46] In my view this factor favours a joint trial.

(g) The use of similar fact evidence at trial

[47] Paciocco, J. in Brahaney noted that the judge hearing a severance motion is simply to determine whether a “count-to-count” similar fact evidence application is viable, and, citing R. v. Carson, [2015] O.J. No. 2528 (S.C.J.) per Hill, J. at paras. 37-42, noted that “viability” is a “possibly admissible” standard.

[48] Hill J. in Carson relied on the dissent of Finch, C.J.B.C. in R. v. Blacklaws (2012), 2012 BCCA 217, 285 C.C.C. (3d) 132 (B.C. C.A.) (aff’d by the Supreme Court of Canada 2013 SCC 8 (S.C.C.) where he stated at para. 42:

...The appellant is correct in saying that the test for admitting similar fact evidence is more stringent, and requires a closer legal and factual nexus, than the test for determining whether multiple counts should be joined or severed. However, the trial judge was not required to actually apply the test for admitting similar fact evidence during his deliberations on the severance application: he only had to assess whether it could "possibly" be met in the future.

[49] In my view it cannot be said that the Crown will not possibly succeed on its application for the admission of similar fact evidence in the future.

[50] In the case of R. v. M. (J.) 2010 ONCA 117 (C.A.), Watt, J.A. writing for the panel, summarized the applicable principles on an application for the admission of similar fact evidence as follows at para. 91:

The degree of similarity required to justify reception in a case will depend on the issues raised in the case, the purpose for which the evidence is proffered and the other evidence in the case: Handy at para. 78. Where the evidence of similar acts is summoned in support of proof of the actus reus, it is not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying the events being compared: Handy at para. 81. The cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused's conduct in closely defined circumstances. What becomes necessary in such cases is a persuasive degree of connection between the events of alleged similar acts and the offence charged in order to be capable of raising the necessary inferences: Shearing at paras. 48 and 50. The underlying unity need not lie in the distinctive nature of the acts themselves but may reside in the circumstances in which those acts occurred.

[51] Thus, although there may not be more than generic similarity in the nature of the acts themselves alleged against the applicant in respect of the three complainants, the Crown relies upon the circumstances in which the acts occurred. The Crown’s position is that the applicant was in a position of trust with each of the three complainants and took advantage of his relationship with them and the trust of their parents (in the cases of A.H. and E.S.) to assault them while they were alone and vulnerable.

[52] I am only required to determine if the Crown’s similar fact application is viable in the sense of the evidence being “possibly admissible.” I am satisfied that this standard has been met.

[53] The fact that the Crown is bringing a similar fact application and that it has a possibility of succeeding favours the joinder of the counts. If the application for severance were to be granted, the Crown would be required to litigate the similar fact evidence application twice or three times. This factor therefore militates against the application for severance.

(h) The length of the trial having regard to the evidence to be called

[54] This is not a significant factor.

(i) The potential prejudice to the applicant with respect to the right to be tried within a reasonable time

[55] It is well known, as exemplified by the Supreme Court of Canada in the seminal case of R. v. Jordan, that an accused is prejudiced by a failure to bring the case to trial within a reasonable time. The objective of avoiding a multiplicity of proceedings is connected to this constitutional right. The applicant’s interest in having separate trials must be balanced against the countervailing interest of having his charges tried within a reasonable time.

[56] In my view this is an important factor given the practical logistical difficulties in providing for separate jury trials on the counts respecting the three separate complainants within a reasonable time, given the well-known pressures on our judicial system. In view of my findings with respect to the other criteria, including in particular, the lack of complexity of the evidence and the effect of the Crown’s similar fact evidence application, I find that this factor favours a joint trial.

Conclusion

[57] As indicated previously, I am required to consider all of the factors together and to weigh them cumulatively.

[58] I find that the applicant has not met his burden on a balance of probabilities of demonstrating that the interests of justice clearly require that he be tried separately on the counts respecting each of the three separate complainants, or alternatively, the complainant H.B.

[59] The application for severance is therefore dismissed

D.A. Broad, J.

Date: June 1, 2021