Her Majesty the Queen v. S.K.
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
S.K.
Defendant
COUNSEL:
Adam Campbell, for the Crown
Laura Ellis, for the Defendant
HEARD: June 29, 2022
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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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.
TRANQUILLI J.
1S.K. is charged with 12 offences against his son and his daughter on a single indictment. His son and daughter allege they endured years of physical and sexual abuse by the accused. The defendant applies under s. 591(3)(a) of the Criminal Code to sever the counts relating to his son from the counts relating to his daughter.
2This court must determine whether severance of the counts is in the interests of justice.
Background
3S.K. faces five counts of assault or assault with a weapon of his now 20-year-old son, A.K. The Crown alleges these offences took place over a three-year period between 2017 and 2020. S.K.’s daughter, K.K., allegedly witnessed some of these occurrences.
4On the same indictment, S.K. also faces seven counts of sexual offences of his now 16-year-old daughter, K.K.: sexual assault, sexual interference, sexual touching, and sexual exploitation. The Crown alleges these offences took place over a six-year period between 2014 and 2020. Although there are no direct witnesses to these occurrences, the Crown advises that K.K.’s mother will testify to some of the circumstances surrounding at least one of the counts.
5The charges were laid after K.K. reportedly told her brother that their father had been sexually abusing her. The two complainants decided to leave their father’s home and report the physical and sexual abuse to the police.
6Subject to the determination of this application, the defendant has elected trial by judge and jury. No trial date has been set. The defendant anticipates he will likely testify in his own defence on both sets of charges. The court understands the defence is the conduct did not occur, although the applicant may admit to some of the alleged conduct against his son. The case will turn on the credibility of the witnesses.
Positions of the Parties
7The applicant submits a single trial of all 12 counts will cause him substantial prejudice. He may concede some of the allegations regarding his son. If all counts are tried together, there is a substantial risk a jury will engage in improper propensity reasoning based upon the applicant’s character and engage in impermissible credibility bolstering as it relates to the two complainants. If severance is granted, the applicant intends to re-elect to a judge-alone trial in the Ontario Court of Justice on the assault charges concerning his son.
8The respondent acknowledges some risk of prejudice to the applicant; however, submits the administration of justice weighs in favour of dismissing this application. The Crown contends there is a sufficient factual nexus between the offences against the son and daughter to warrant a single trial. Moreover, the Crown emphasizes the daughter in particular is a vulnerable witness who would be forced to testify in two trials if severance were granted. Severance would not appreciably shorten the trials and a multiplicity of trials also ought to be avoided as the courts struggle to deal with the backlog of cases caused by the COVID-19 pandemic.
Analysis
9My analysis is informed by the factors previously identified by the courts along with the guidance of the Supreme Court of Canada in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146. These factors must be weighed to ensure a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial. 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. 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: Last, supra at paras. 16-18.
10I now turn to a consideration of those factors relevant to the application in the circumstances of this matter.
General Prejudice to the Accused
11I accept the applicant’s concern that joinder of the counts creates the potential for cross-pollination on credibility assessments of the two complainants and the accused. There is also a risk the jury would engage in prohibited propensity reasoning in using evidence that satisfied the jury the Crown had proven one set of offences beyond a reasonable doubt to infer S.K. is the type of person to commit these violent crimes against his children and thereby convict him of the second set of offences. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count: Last, supra at para. 16.
12The Crown acknowledges this risk of prejudice but argues the risk is mitigated through proper limiting instructions to the jury.
13Prejudice to the accused in these circumstances is a significant factor that warrants careful consideration in weighing the factors to determine if severance is in the interests of justice. I will consider the extent to whether proper limiting instructions to the jury mitigates the concerns in the balancing exercise that follows my consideration of each of the factors.
Legal and Factual Nexus Between the Counts
14The applicant submits there is little in the way of a factual nexus between the two sets of counts. The two complainants are siblings. The alleged abuse of each complainant took place in one of the family homes or the family cottage. There is some temporal overlap in the offences. The complainant K.K. also claims to have witnessed some of the alleged physical assaults of her brother.
15The applicant emphasizes the two sets of counts lack a legal nexus. The counts concerning the applicant’s son relate to physical assaults. The counts concerning his daughter are of a sexual nature. The applicant contends the evidence on one set of counts would not be admissible as similar fact evidence on the latter set of counts.
16The respondent acknowledges there is very little legal nexus if one simply compares the one set of counts to the other. Through that lens, the respondent also agrees there is no possibility of a successful similar fact application. This factor would generally favour severance. However, the Crown contends there is nevertheless a strong legal and factual nexus when one assesses the context of the offences, which may support a similar fact application in the future. Both complainants alleged years of abuse by their father in a relationship dynamic where he exerted control over the family, including their mother, before their parents separated in 2017. The sister K.K. will testify to her observations of her father’s physical abuse of her brother. In this context, the Crown submits both sets of offences are part of the same “transaction” in terms of the father’s pattern of abusive conduct towards each child over several years. Finally, the Crown argues there is an important factual nexus in the disclosure of the offences. A.K. was told by K.K.’s boyfriend that their father was sexually abusing her. K.K. then disclosed this to her brother. The brother and sister then agreed they would leave their father’s home and control and report the physical and sexual abuse to the police.
17I accept there is a narrative context that links the alleged abusive conduct by the accused towards his two children. However, this does not mean that the 12 incidents were part of the same transaction. It is true that the use of the term “transaction” within the Criminal Code is “elastic” in nature: R. v. Melaragni, [1992] O.J. No. 2294 (Gen. Div.). However, in my view, this scenario stretches the meaning of “transaction” far beyond recognition. The counts all involve separate incidents with each of the complainants. The alleged criminal conduct of the accused towards each complainant was of a different quality: physical versus sexual abuse. The trier of fact would not need to know about the one set of offences against one child in order to understand the other set offences against the other child. I will allow it is possible that the evidence may still emerge to support a similar fact application at trial; however, at this stage, the evidence is such that it is unlikely that a similar fact application would be successful. I will give this further review and consideration in the balancing exercise.
18There is some factual nexus between the two sets of charges regarding the complainants’ disclosure of the allegations. However, this does not appear to be a central issue for trial. This is in contrast to R. v. S.E., 2000 CanLII 3240 (ONCA) where the Court of Appeal held the trial judge was correct in refusing to sever the counts between two sexual assault complainants. While the alleged sexual assaults encompassed separate transactions and complainants, there was an important factual nexus between the separate assaults. The complainants disclosed the allegations at the same time under similar circumstances. This was relevant to the defence theory that the complainants fabricated the allegations in order to assist in a custody battle against the accused.
Whether the Accused Intends to Testify
19The applicant advised it is likely he will testify in respect of both sets of charges. The court understands the defence theory to be that the alleged events did not occur.
20The applicant submits this factor is “neutral” when weighing the factors to determine whether it is in the interest of justice to grant a severance. The respondent submits this factor should weigh against severance as there is no indication the applicant would therefore be at risk of compromising his right to silence on certain of the counts if he claimed he has a valid defence that requires his testimony on other of the counts.
21It would appear at this stage that the defendant’s right to decide whether or not to testify with respect to each of counts is unimpaired in any event of the disposition of this severance application, although I acknowledge the applicant’s advice in argument that he may admit to some of the charged conduct involving his son. It will be one factor to balance with all the others in the final determination of this application.
The Possibility of Inconsistent Verdicts
22The parties agree that given the separate complainants, separate incidents, and the different nature of the allegations as between the two sets of offences that there is no possibility of inconsistent verdicts.
Desire to Avoid a Multiplicity of Proceedings
23The applicant acknowledges this factor supports holding a single trial on all counts. However, he submits the desire to avoid requiring the complainants to testify at two trials should not be accorded too much weight. They are young adults, not young children, and their testimony at the trial in which they are not the complainant would be limited in nature.
24The respondent contends this factor should be of primary concern to the court and should weight against severance. The respondent emphasizes that K.K., a sexual assault complainant, would be subjected to having her credibility and reliability challenged in two proceedings. Her role in a separate trial involving the physical assaults of her brother would not be limited, as suggested by the applicant. She will testify in some detail about the physical abuse of her brother that she witnessed. The respondent also argues both trials would require a narrative from both complainants to establish the timing of the offences, the locations, the applicant’s mental state, his need to control every aspect of their lives and their decision to leave the home and go together to the police. This militates against severance. This evidence may operate unfortunately for the accused, but not unfairly.
25The respondent also submits that the impact of the COVID-19 pandemic on the backlog of cases weighs against severance when considering a multiplicity of proceedings, duplication of witnesses and the possible overlap of evidence. The efficient administration of justice would weigh against severance in that context: R. v. Fairley, 2021 ONSC 1940 at para. 36.
26I accept the Crown’s contention that the impact on the complainants in having to testify twice, particularly K.K., is not a factor to be lightly glossed over. Beyond the concerns of duplication or overlap in evidence, courts should be hesitant to compound the vulnerability typically felt by victims of sexual offences by requiring them to testify more often than absolutely necessary to achieve the interests of justice: R. v. Dapena-Huerta, 2017 ONSC 6552 (S.C.J.) at para. 26. This factor should be accorded weight in the balancing exercise.
Complexity of the Evidence
27The parties agree the evidence is not overwhelmingly complex. However, the applicant observes that a single trial on 12 counts encompassing an approximate five-year timeframe and two complainants will entail some degree of complexity.
28In my view this factor does not attract weight in the balancing exercise and would not favour severance. To the extent severance may arguably simplify the issues and shorten trial is a factor I will consider next.
The Length of the Trial Having Regard to the Evidence to be Called
29The applicant submits that severance is unlikely to increase the overall trial time required. If severance is granted, the applicant intends to seek to elect a judge-alone trial in the Ontario Court of Justice regarding the physical assault charges.
30The respondent submits severance would likely increase the overall trial time required as the complainants would need to testify twice and would need to repeat the same evidence regarding the timing and location of the abuse, their observations, and the underlying family relationship and the accused’s controlling nature.
31This factor invites some speculation on the extent to which trial time would remain largely unchanged or would increase. In my view, the concerns are better assessed within the issues identified regarding the multiplicity of proceedings, such as the impact on the complainants, the overlapping of evidence and the use of court resources in light of the COVID-19 backlog.
The Potential Prejudice to the Accused with Respect to the Right to be Tried within a Reasonable Time
32The applicant notes this can be an important consideration in deciding the interests of justice on a severance application. However, he submits it is largely a neutral factor in these circumstances and suggests there is potential that severance offers the potential for quicker trials given one trial would proceed in the Ontario Court of Justice and the sexual offence counts would proceed in the Superior Court of Justice with some reduced length of trial.
33The respondent argues that severance would increase the risk of delay as no trial date has been set pending determination of this application, thereby potentially prejudicing the accused’s right to be tried within a reasonable time. The matter has already been 23 months in the system.
34Given the applicant’s position that his right to be tried within a reasonable time is neutral, I will not afford this factor significant weight in the balancing exercise.
Balancing the Factors and Assessing the Interests of Justice
35These factors must now be considered and weighed cumulatively to determine whether the interests of justice require severance: Last, supra at para. 44.
36S.K. is likely to testify on both sets of offences, which weighs against severance. However, the risk of prejudice to S.K. is significant. There is undoubtedly a significant risk of prejudice to the accused in having a joint trial on both the sexual offence charges and the physical assault charges because of the dangers of credibility cross-pollination and prohibited propensity reasoning. The applicant also seeks to have the physical assault charges tried separately in the Ontario Court of Justice, where he may admit to some of the charged conduct. This also warrants some weight in favour of severance in facilitating an accused’s ability to control his defence.
37The concerns about a significant risk of prejudice to the accused requires the court to ask whether there are compelling countervailing reasons for having a single trial on all counts.
38The court’s most significant concern that weighs against severance is the impact on the complainant K.K., and the prospect that she will need to testify twice. The court also accepts there would likely be some overlap in the testimony of the complainants and perhaps some overlap of collateral witnesses, such as the complainants’ mother.
39That said, I do not accept that there is a substantial overlap in witness testimony as between the two sets of charges. The evidence of the one set of charges will not need to be adduced at the trial on the other set of charges. While K.K. may testify to her observations of some of the counts of her father’s alleged physical abuse of her brother, and may also offer narrative context, the two sets of offences are nevertheless discrete and factually disparate. K.K.’s testimony in respect of the physical assault charges and the family atmosphere with her father’s alleged controlling behaviour would not require her to testify about the sexual offences. I am mindful that the circumstances of the complainants’ disclosure may be pertinent, but as reviewed earlier in these reasons, the circumstances of the disclosure do not appear to play a central role in either the defence or Crown theories.
40The effect of severance on the administration of justice in the context of the backlog caused by the pandemic also argues against severance. However, in my view, this concern about judicial economy and efficiency in the administration of justice can add little weight against severance in the face of the significant risk to the accused of credibility cross-pollination and improper propensity reasoning.
41The factual and legal nexus between the counts is tenuous. The overlapping temporal nature of some of the counts and alleged locations of some of the physical and sexual abuse is present and I will allow that there might be the prospect for the Crown to bring a similar fact application at trial, perhaps based upon motive or modus operandi, for example. However, there is no dispute that the case for a similar fact evidence application at present is slim. The probative value of evidence of the one set of offences to the other set of offences has the prospect of relying upon prohibited general propensity reasoning where there is otherwise little to connect the two sets of offences. The risk of moral and reasoning prejudice is patent. The 12 counts cannot be said to be part of the same transaction; the two sets of offences were of a different nature and involved different complainants. Finally, even if a similar fact application is successful, it does not necessarily follow that this weighs against severance or that a trier of fact on one set of charges hears all the “similar fact” evidence on the other set of charges. The court of appeal recently reminded us that counsel and the court should consider whether the issue to be proven by the similar fact evidence can be established by evidence of a lesser prejudicial nature, where the trial judge should consider permitting the evidence to be adduced in a restrictive form: R. v. Z.W.C. 2021 ONCA 116 at paras. 112-113.
42This brings the court to consider whether a proper limiting instruction to the jury mitigates the significant concerns about prejudice to the accused. I am satisfied this is not a case where it is appropriate to attempt to address the risk of prejudice by a jury instruction. This should only be done where there are sufficient factors in favour of a single trial: Last, supra at para. 45. Here the reasons to sever are compelling. While there are some factors that argue against severance, being concern for the complainants, and multiplicity of proceedings, these are not sufficient to overcome the significant risk of prejudice to the accused. The other factors in favour of a single trial fail to add to the balance to overcome the concerns of prejudice to the accused.
43The applicant has established on a balance of probabilities that it is in the interests of justice that the application for severance is granted. Counts 1 through 5 inclusive on the indictment shall be severed from counts 6 through 12 inclusive on the indictment.
Justice K. Tranquilli
Released: August 15, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
S.K.
REASONS FOR JUDGMENT
Justice K. Tranquilli
Released: August 15, 2022