COURT FILE NO.: CR-20-10000387-0000

DATE: 20211110

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JOSHUA PAJACKOWSKI

Defendant

Christopher Ponesse, for the Crown

Joshua Pajackowski, in person

Stephanie Heyens, Amicus Counsel

HEARD: October 5, 2021

Schabas J.

REASONS ON SEVERANCE MOTION

Introduction

Introduction

1Joshua Pajackowski is charged, in one indictment, with 12 separate Counts of offences under the Criminal Code (the “Code”). The matter is set for trial before a judge alone commencing January 24, 2022.

2On October 5, 2021, Mr. Pajackowski brought a motion before me, as the case management judge, to sever the Counts and requested that I direct 12 separate trials.¹ As his argument progressed, however, he seemed to acknowledge that at least some Counts could be tried together. Mr. Pajackowski cited two main grounds for his motion – that Counts were unrelated to one another, and that he intended to testify on some Counts and not others.

3The Crown opposed the motion, arguing that the Counts have a sufficient nexus in fact and law, and that there will be little or no prejudice to Mr. Pajackowski if he chooses to testify.

4Mr. Pajackowski is representing himself. However, as a number of the Counts allege criminal harassment under s. 264 of the Code, an amicus counsel, Stephanie Heyens, has been appointed. She submitted that the court could view the Counts in the indictment as two different cases, one involving the alleged victim Mark Pawicki, and the other involving cases rooted in social media communications.

The Legal Framework

5Under s. 591(1) of the Code, the Crown may include any number of Counts in an indictment. However, under s. 591(3) “[t]he court may, where it is satisfied that the interests of justice so require, order … that the accused or defendant be tried separately on one or more Counts.”

6The Code gives no guidance as to what factors or criteria should guide a judge in considering a motion to separate Counts in an indictment, and the Supreme Court has recognized that a judge must “exercise a great deal of discretion” in making such decision: see R. v. Last, 2009 SCC 45, [2009] 3 SCR 146 at para. 14, quoting from R. v. Litchfield, [1993] 4 SCR 33 at pp. 353-354. The Court went on to state, in Last at paras. 16 – 18 as follows:

16 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.

17 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.

18 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: [citations omitted, emphasis added].

7No one factor is determinative. It is up to the judge, having considered all the circumstances, to determine whether the interests of justice require separating Counts in an indictment and to have separate trials.

8In R. v. Ticknovich, [2003] A.J. No. 905, 2003 ABQB 597 at para. 70, Watson J. discussed the concept of a “legal nexus” as referring to “whether there would be a substantively an overlapping transaction or transactions, such as discussed in Giroux [2002 ABQB 532], 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.” Watson J. also observed that the scope of the legal nexus can be informed by considering the rule in Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 SCR 729 and the principles of issue estoppel and res judicata. Further, as the burden is on the defence to persuade a court that Counts should be severed, there is no onus on the Crown to prove a nexus, let alone a strong nexus, between the Counts: Ticknovich at para. 67.

9The Supreme Court has commented on the interaction of similar fact evidence and multi-count indictments in which a severance motion may be raised. In R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 SCR 339 at para. 52, the Court stated that “where the similar acts are alleged as part of a multi‑count indictment, the consideration of the admissibility of similar fact evidence will have to be taken into account in deciding whether the Counts should be severed.” The Court continued:

Nevertheless, the trial judge should be careful not to confuse admissibility with severance. A motion to sever under s. 591(3)(a) of the Code must be brought by the accused, who bears the burden of establishing on a balance of probabilities that the interests of justice require an order for severance. Yet the burden of demonstrating that similar fact evidence should be admitted must be borne by the Crown. These respective burdens may involve the consideration of similar factors, but as Lord Scarman noted in R. v. Scarrott (1977), 65 Cr. App. R. 125 (C.A.), at p. 135, “[i]t does not follow that because a multi‑count indictment has been allowed to proceed that therefore the evidence given will be evidence on all the Counts contained in the indictment”. Thus, to paraphrase the Manitoba Court of Appeal in R. v. Khan (1996), 1996 CanLII 7296 (MBCA), 49 C.R. (4th) 160, at p. 167, notwithstanding the trial judge’s refusal to sever the Counts in a multi‑count indictment, it remains open to him or her, as the evidence progresses at trial, to determine as a matter of law that evidence on one count is not admissible as similar fact evidence on the other Counts. The assessment of similar fact evidence and the determination of its probative value and admissibility places an onerous burden* on the trial judge. It is a task that must be undertaken with great care. [Emphasis added]

10I take from this passage that the fact that the Crown may seek to lead similar fact evidence, or to seek to have the trier of fact compare similar facts on different Counts, does not require severance and that, while a consideration on this motion, it is just one factor among many to consider.

11R. v. Arp was decided in 1998. At that time, as held in Litchfield, only a trial judge had jurisdiction to sever Counts. Section 551.3 has now changed that, permitting a case management judge to adjudicate the issue prior to trial. Consequently, the admissibility of similar fact evidence and its impact, whether as independent similar fact evidence or evidence to be considered across Counts, is not before me. However, as stated in Last, the potential use of similar fact evidence is nonetheless a relevant consideration on a pre-trial severance motion.

The indictment and anticipated evidence

The indictment and anticipated evidence

12The indictment consists of 5 Counts of criminal harassment against 5 different individuals under s. 264(2)(b) of the Code, one count of threatening to cause bodily harm under s. 264.1(1)(a) of the Code, four Counts of defamatory libel under s. 300 of the Code, one count of attempting to obstruct justice under s. 139(2) of the Code, and one count of public mischief under s. 140(1)(a) of the Code.

13Counts 1 (criminal harassment), 7 (defamatory libel), 11 (obstruct justice) and 12 (public mischief) all involve Mr. Pawicki as the alleged victim/complainant.

14It is anticipated that the evidence will show that Mr. Pawicki is a personal trainer employed at Goodlife Fitness who, in the fall of 2017, began receiving emails and messages from Mr. Pajackowski which he found disturbing. Mr. Pawicki approached his manager, Nathan Mason, and ultimately Mr. Pajackowski was banned from the Goodlife facility. Subsequently, based on a complaint from the accused, Mr. Pawicki was arrested for allegedly sexually assaulting Mr. Pajackowski. No charges were laid. Mr. Pajackowski continued to contact and communicate with Mr. Pawicki despite requests that he stop. It is also alleged that Mr. Pawicki is the subject of a “flyer” produced by the applicant which is libellous. These communications and the complaint of sexual assault made by Mr. Pajackowski, form the basis of the 4 Counts against Mr. Pajackowski involving Mr. Pawicki.

15Count 3 alleges criminal harassment arising from disturbing messages received by Anna Michaels, who is Mr. Pawicki’s sister. It is alleged that these messages were sent by Mr. Pajackowski using an alias named “Mindy Watson.”

16Brad Lindsay is the alleged victim in Counts 2 (criminal harassment), 6 (threaten to cause bodily harm) and 9 (defamatory libel). Mr. Lindsay is a manager of Risk and Critical Response at Goodlife Fitness who conducted an internal investigation following a harassment complaint made by Mr. Pawicki in September, 2017. Mr. Lindsay banned Mr Pajackowski from Goodlife Fitness on October 25, 2017. It is alleged that Mr. Lindsay has received several emails and messages from Mr. Pajackowski that have been threatening in nature. One email included the “flyer” that is the subject of the defamatory libel charges in Counts 7, 9 and 10.

17Mr. Lindsay’s wife, Kendra Lindsay, is the alleged victim in Count 5 (criminal harassment), arising from the emails to her husband.

18Count 4 (criminal harassment) and Count 8 (defamatory libel) relate to Matthew Ariganello, a manager at Goodlife Fitness. It is alleged that he received emails and defamatory statements posted on his Facebook page by Mr. Pajackowski using the alias “David Low.”

19Mr. Mason, the manager to whom Mr. Pawicki complained about Mr. Pajackowski, is also an alleged victim of defamatory libel in the “flyer” which is the basis for Count 10.

Analysis

Analysis

20It can be seen from the review of the Counts and the allegations underlying them that there is a strong factual nexus between them. Even if the original dispute involving Mr. Pawicki is “personal,” as alleged by the accused, the involvement of all the other individuals flows from the fallout from that dispute and appears to be related to it. The “flyer” is common to 3 of the 6 alleged victims, 2 of the other alleged victims are relatives of them, and the other alleged victim is an employee of Goodlife Fitness.

21It is reasonable to infer, as the Crown submits is the case, that there will be much evidence and many witnesses who are common to all the Counts. The elements of the offences will also be common to many of the Counts.

22Accordingly, there is a strong factual and legal nexus between the Counts in the indictment. Severing them would create a multiplicity of proceedings dealing with much of the same evidence, and could give rise to inconsistent verdicts. These factors favour keeping the Counts together.

23As I have noted, the admissibility of similar fact evidence is a matter for the trial judge. The Crown has advised me that it intends to rely on similar facts arising among the Counts at the conclusion of the trial. This is not surprising given the overlapping communications and the alleged use of aliases. In this case, and at this stage, I cannot conclude that the potential prejudice of trying Counts with similar facts, and potentially making comparisons between Counts, favours severance. In any event, despite my ruling it remains open to the accused to seek to revisit severance before the trial judge under s. 551.3(4) of the Code.

24This is not a matter of piling on Counts that will overwhelm a trier of fact. Further, here the trier of fact will be a judge, not a jury, who will be alive to these issues and be able to assess the nature of the similar evidence on different Counts and whether it should inform findings on other Counts. A judge will not jump to the conclusion that if Mr. Pajackowski committed one offence he must be guilty of others. Any perceived prejudice to the accused, therefore, can be appropriately addressed by the trial judge.

25Severing the Counts would require the Crown to seek to call the same similar fact evidence at separate trials, which would be inefficient, again create a multiplicity of proceedings, and increase the potential for inconsistent verdicts. These concerns were also recognized by Watson J. in Ticknovich at para. 47, who noted that “[i]f the evidence may admissibly be treated as similar fact as between Counts, the Defendant might face all the evidence at each trial even if the Counts were severed. Moreover, the risk of some inconsistency in factual assessment would seem to be less in a joint trial of the Counts.”

26Mr. Pajackowski also submits that the complexity of the case requires severance. I disagree. Rather, this appears to be a relatively straight-forward case, based on a series of emails, postings, and interactions involving, largely, Mr. Pajackowski, Mr. Pawicki and others at Goodlife Fitness, and the police. A judge will not have difficulty with the issues because of the number of Counts in the indictment.

27Finally, Mr. Pajackowski submits he will be prejudiced as he states that he intends to testify on some Counts but not others, and therefore fears that he may incriminate himself if all Counts are tried together.

28It is not clear, however, how this will happen. Indeed, in argument it was not clear on which charges Mr. Pajackowski will and will not testify. For example, Mr. Pajackowski said that he may wish to testify on the harassment charge involving Mr. Pawicki, but not the mischief or obstruct charges; however, Mr. Pajackowski also stated that he may need to testify on the latter charges as there is a dispute about a video and, he says, that he did not make a formal complaint to the police.

29On the defamatory libel charges in Counts 7, 9 and 10, Mr. Pajackowski said that the title of the “flyer” is what he calls the “rigged” investigation at Goodlife, but that he says different things about each alleged victim and may wish to testify about some allegations and not others. Mr. Pajackowski said that he would testify to stand behind what he said about Mr. Lindsay, but might wish to avoid testifying about Mr. Pawicki who, he says, is not accused of “doctoring” a video in the “flyer”. He conceded, however, that he would be testifying about Mr. Pawicki on the harassment count. He agreed he might have to testify about the allegation against Mr. Mason. In my view, since Mr. Pajackowski seems to intend to testify in order to justify what he said about 2 of the 3 individuals named in the “flyer”, and that his position on the third individual is that he was not defamed, there is no prejudice to him being tried on each of these Counts together. Further, Mr. Pajackowski’s decision to name all 3 people in the “flyer” and what he said about each of them would almost certainly be relevant to each of those Counts.

30With respect to Mr. Ariganello, Mr. Pajackowski says that these charges relate to a different time period one and a half years later and that he would expect to want to testify on the harassment charge about identity – presumably to deny he is David Low - but not on the defamatory libel charge as he does not think it is defamatory. Whether words are defamatory, however, is a matter of impression for the trier of fact such that any questioning of Mr. Pajackowski on what the words actually mean is unlikely to be permitted: Lewis v. Daily Telegraph, [1964] A.C. 234 at 258; Canadian Broadcasting Corp. v. Color Your World Corp., 1998 CanLII 1983 (ON CA), 38 OR (3d) 97 at 106; Hodgson v. Canadian Newspapers Co. 1998 CanLII 14820, 39 OR (3d) 235 at 253 (Gen. Div.), varied on appeal as to damages (2000), 2000 CanLII 14715 (ON CA) , 49 O.R. (3d) 161 (C.A.) , leave to appeal dismissed (2001), [2000] S.C.C.A. No. 465. To the extent that Mr. Pajackowski might be examined on whether he knew the allegedly defamatory words were false may overlap with his testimony on the harassment charge and is, in any event, a matter for the trial judge. In my view, the nexus between the Counts involving Mr. Ariganello and the other Counts is clear.

31Mr. Pajackowski said he would be testifying about his emails to Mr. Lindsay on the harassment charge but did not think he would wish to testify on the threatening charge, which also was in an email. Mr. Pajackowski said that he does not wish to testify about the charge relating to Ms. Lindsay. However, as he acknowledged, the charges arise from emails sent by him and, according to Mr. Pajackowski, are about the “rigged” investigation. The fact is that the emails underlying these charges overlap and the issues relating to each Count would likely come up in any event.

32Finally, with respect to Ms. Michaels, Mr. Pajackowski denies being Mindy Watson, but also denies that the emails constitute harassment or threats, noting the subject matter is about her brother, Mr. Pawicki. He said it was unclear if he would have to testify on this Count or not.

Conclusion

Conclusion

33In my view, the factual nexus between the charges is very strong and the evidence overlaps across virtually all of the Counts. Mr. Pajackowski has failed to demonstrate any particular prejudice that would arise if he wishes to parse his testimony and only speak to some Counts and not others. Consequently, having regard to the factors stated in R. v. Last, and balancing the accused’s right to a fair trial and the risk of prejudice to him against the public interest in seeing that justice is done in a reasonably efficient and cost-effective manner, the interests of justice in this case favour the Counts proceeding together. Indeed, quoting from the Supreme Court in Last, these Counts “call for a joint trial.”

34The motion for severance is dismissed.

Paul B. Schabas

Footnotes

1. 1It was agreed that, pursuant to s. 551.3(1)(g)(v) of the Criminal Code, I have jurisdiction to hear this motion.