ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
K.K.
Defendant/Moving Party
Sarah Sullivan for the Crown
Terrance Luscombe for K.K.
HEARD: June 10, 2022
RULING ON SEVERANCE APPLICATION
C. BOSWELL J.
1KK faces a sixteen count indictment. The alleged offences, which include assault, sexual assault and threatening, amongst others, are all said to have occurred between December 8, 2020 and July 30, 2021 at the Central North Correctional Centre (“CNCC”) while KK was in custody there. There are seven complainants, all of whom were fellow inmates at CNCC.
2KK applies for an order severing the counts against him into three separate indictments. He submits that three separate trials are necessary to attenuate the prejudice that will arise should all counts be tried together. The Crown opposes the application.
3The central question for the court is whether severance is required in the interests of justice.
THE GOVERNING PRINCIPLES
The General Discretion
4The Crown generally has a wide discretion to join multiple accused or multiple counts on a single indictment. Section 591(1) of the Criminal Code provides that any number of counts for any number of offences may be joined in the same indictment.
5The court has an equally wide discretion to sever accused persons or counts when it is in the interests of justice to do so. Section 591(3) of the Criminal Code provides, specifically, 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; and
(b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts.
The Onus
6The interests of justice encompass both those of the accused and of the community. See R. v. Savoury, 2005 CanLII 25884 (ON CA), [2005] O.J. No. 3112 (Ont. C.A.) at para. 22. What they require at any given time must be assessed on a case-by-case basis. The onus rests on KK to satisfy the court, on a balance of probabilities, that the interests of justice require that a severance be granted in the particular circumstances of this case. See R. v. Jeanvenne, 2010 ONCA 706, at para. 26.
The Relevant Factors
7The leading case on severance remains the Supreme Court’s ruling in R. v. Last, 2009 SCC 45 (“Last”).
8The facts in Last are worth a brief mention. Mr. Last was charged with two counts of sexual assault in relation to incidents that occurred about a month apart. In the first incident, the accused was alleged to have gone to a nightclub with a young woman. When they went back to his apartment later that evening, the accused is alleged to have held a gun to the woman’s head, choked her and repeatedly sexually assaulted her. The live issue with respect to this count was consent. In the second incident, which allegedly took place a month after the first, the accused was alleged to have been alone with a woman in her apartment. He is said to have struck her across the forehead with a mug, knocking her out. He then allegedly sexually assaulted her while she was unconscious. The live issue with respect to this count was identity.
9Mr. Last argued that he was likely to testify in relation to the first count but not the second. He contended that, absent a severance, he would not be able to receive a fair trial because he would have to make a choice between either not testifying about either incident or being subjected to cross-examination on both incidents despite only intending to testify about the first.
10The trial judge refused to grant Mr. Last’s severance application. He subsequently elected to testify in his own defence. He was convicted on both counts. The Court of Appeal for Ontario upheld the convictions. The Supreme Court did not. Both convictions were set aside and sent back to the Superior Court for separate trials.
11Writing for a unanimous court, Deschamps J. confirmed that trial judges have a wide discretion in terms of granting or refusing a severance. In exercising that discretion, a trial judge must have regard to the interests of justice, which encompass the right of an accused to be tried on evidence admissible against him or her, as well as society’s right to have an efficient and cost-effective justice system. In other words, the Court must strike a reasonable balance between the risk of prejudice to an accused and the public interest in a single trial.
12In Mr. Last’s case, the Supreme Court concluded that the trial judge had not struck the appropriate balance. In their view, that balance pointed clearly towards a severance. They considered a number of factors in reaching their conclusion. The alleged sexual assaults were, for instance, entirely distinct events. Though they were only a month apart, there was no real nexus between them. There was no risk of inconsistent verdicts. There were different defences being advanced with respect to each offence. Little extra time would be required in conducting two separate trials as opposed to one joint trial. The offences were distinct and there was little, if any, overlap in the evidence. On the other hand, there was a concern for the prejudice that would be caused to the accused if he wished to testify on one count – which was a realistic possibility – and not the other count. The interests of justice ultimately required a severance.
13While the court did not provide a precise framework of analysis to be applied to severance applications, beyond the requirement that it be determined in the interests of justice, Deschamps J. did enumerate a number of factors that courts have identified as germane to an interests of justice inquiry. They include:
(a) The general prejudice to the accused;
(b) The legal and factual nexus between counts;
(c) Whether the accused intends to testify on one count but not another;
(d) The possibility of inconsistent verdicts;
(e) The desire to avoid a multiplicity of proceedings;
(f) The use of similar fact evidence at trial;
(g) The length of a trial having regard to the evidence to be called;
(h) The potential prejudice to the right of an accused to be tried within a reasonable time; and,
(i) The existence of antagonistic defences as between co-accused persons.
The Tricky Problem of Similar Act Evidence
14As I will outline momentarily, the spectre of similar act evidence looms large in this application. Deschamps J. observed, at para. 33 of Last, that “in many cases a ruling allowing similar fact evidence will favour a joint trial since the evidence on all incidents would have to be introduced in any event.” He cautioned, however, that the prospect of similar act evidence must be carefully considered, given the specific burden that applies to such evidence. Picking up on this theme, Justice Trotter noted, in R. v. R.C., 2017 ONCA 900 at para. 51, that “assessing the viability of a similar act application on a severance application can be tricky, given that the burden to achieve severance is on the defence, while the burden to admit similar act is on the Crown. The exercise must be approached with great care.”
15In this instance, the Crown will be asserting – at some later date – that the trier of fact should be able to rely on count to count similar act evidence in reaching verdicts on each count on the indictment. In other words, the Crown will argue that the conduct complained of in each count is sufficiently similar that the trier of fact should be permitted to consider the evidence applicable to each count as evidence of guilt on all counts.
16In an ideal world, one might prefer to determine the admissibility of similar act evidence prior to determining the accused’s severance application. But the Crown has not yet instigated an application to admit count to count similar act evidence. The timing of that application is in their discretion. They may defer it until the close of their case. See Last, para. 34. In the result, the court is left to assess the severance application not knowing the extent to which similar act evidence will impact on the accused.
17In the context of a severance application, although the court must carefully assess the viability of any future application to admit count to count similar act evidence, the court is not required to actually apply the test for admitting similar act evidence. See R. v. Blacklaws, 2012 BCCA 217 at para. 42, aff’d 2013 SCC 8. Instead, the court need only assess “whether the anticipated similar act application has some possibility of success, or whether it is reasonable to consider that it might succeed”: R. v. R.C., as above, at para. 39.
THE ALLEGED OFFENCES
18The charges on the indictment against KK relate to offences allegedly committed by KK against seven of his fellow inmates at CNCC over the course of about seven months. I will refer to the complainants by their initials only. The charges are:
(a) Sexual assault and assault against JS;
(b) Sexual assault and threaten death against AP;
(c) Sexual assault, assault and mischief against DK;
(d) Sexual assault, threaten death, intimidation and committing an indecent act against DL;
(e) Threaten death against AM;
(f) Threaten death against DM; and,
(g) Sexual Assault, threaten death and committing an indecent act against JW.
19The court’s vantage point is necessarily limited at this stage in terms of an examination of the evidentiary record.
20The Crown provided the court with an investigative synopsis with respect to the offences against each alleged complainant. Defence counsel provided the court with a synopsis of JS’s police interview, as well as written statements and interview synopses with respect to each of the other complainants.
21I will take a moment to outline the allegations against KK in relation to each complainant.
JS
22JS was identified by other inmates as a person who had been sexually assaulted by KK. JS initially declined to provide a statement to the police, but he rethought his position and provided a video recorded statement on October 25, 2021.
23JS said he shared a cell with KK on Unit 3C some time between December 8, 2020 and February 9, 2021. They were cell mates for only 4 or 5 days.
24JS said KK made sexual advances towards him. He described an incident when they were playing cards. KK put a little banner over the window in their cell door. KK pulled his pants down and said “suck my dick”, which JS did. KK then proceeded to perform fellatio on JS. JS said he did not want to do it but did not feel like he had a choice.
25Later on they performed fellatio on each other again while sitting on the bottom bunk. JS said he was angry about having to engage in sexual relations with KK. KK said, “if you’re mad then let’s fight”. KK punched JS several times, bruising his ribs.
26JS said he remains fearful of KK.
AP
27AP completed a written statement dated February 20, 2021. He subsequently gave a videotaped interview to the police on February 26, 2021. According to AP, he and KK were cell mates for a short period of time in Unit 3C. On the first night that they shared a cell – December 12, 2020 – he was reading a book on his bed, which was the bottom bunk of two. KK, he says, climbed down onto his bunk and began to kiss him. KK pulled his shorts down and performed fellatio on him. KK then thrust his own penis into AP’s mouth. This same pattern repeated about every other day. In total there were 10-15 incidents like this.
28AP said that he did not want any of the sexual activity to occur. He did not consent to it. He went along because he was afraid of KK. KK was very muscular and was the bully of the unit. He was known to have threatened and assaulted other inmates who didn’t follow his orders.
29AP further said that KK threatened that if he told anyone about these incidents, he would “fuck him up” or get someone else to do so. KK also went through his mail and wrote down AP’s grandmother’s address. KK told him that if AP told anyone what had happened, he knew how to find AP’s family.
30According to AP, KK compelled him to write love letters to him. Letters shared among inmates are sometimes referred to as “kites”. AP says that at KK’s insistence he wrote the letters. KK sent him a kite listing, by bullet points, the things he wanted AP to write back. He instructed AP to flush the bullet point kite down the toilet once he’d read it. AP said KK wanted the kites from him so that no one would believe AP if he told anyone he was sexually assaulted.
DK
31DK made a written statement on July 30, 2021. He gave a video recorded statement to the police on August 6, 2021.
32DK said that he met KK while they were both housed in Unit 2C. He said KK began to write kites to him asking what DK would do to him if they were alone together. DK said he ignored the kites at first, but then KK began to threaten and intimidate him. He was fearful of KK so he wrote kites back to him.
33DK described two incidents when KK assaulted him. The first was in the exercise yard. He said KK punched him in the face and gave him a black eye. The second was in the day room by the television. He said KK punched him in the left shoulder.
34DK described two incidents of sexual assault. On the first occasion, he was coming out of the shower. KK stopped him and asked him to masturbate. He attempted to do so but was unable to get an erection. On the second occasion, DK was on the toilet and KK was across from him at the urinal area. KK told DK to begin masturbating. KK then performed fellatio on DK, but again DK was unable to get aroused. KK then instructed DK to perform fellatio on him, which DK did.
35Some of the incidents described by DK as sexual assaults were partially captured on video by a security camera. KK’s counsel asserts that the video recording supports a finding that any sexual contact between KK and DK was consensual.
36KK is also charged with mischief in relation to DK. The circumstances said to support that charge involve KK using his influence on the inmates who acted as “servers” to the unit to refuse to provide DK with toilet paper, paper or envelopes. KK is alleged to have used his influence to impair DK’s lawful enjoyment of his property unless and until DK starting writing kites to KK.
DL
37DL provided a written statement on July 31, 2021 and a video recorded statement on August 16, 2021.
38DL said he was in Unit 2C for approximately two weeks in July 2021. He met KK on the first day. DL was housed in a cell with DM.
39DL said KK began to write him sexual letters and asked that he respond in kind. KK instructed that he rip up KK’s kites and flush them down the toilet, which he did. He said he did not want to write kites to KK, but KK threatened that if he did not do so, he would hurt him. He said he was extremely fearful of KK.
40DL described an incident where he was in his cell with DM. KK approached from outside. He reached into the cell through the meal hatch and fondled DL’s penis for about three minutes. He asked that DL suck his penis, but DL pulled away.
41DL was subsequently moved to his own cell. He said KK approached his cell and instructed him to masturbate for him. He threatened that if DL did not do so, he would be hurt. DL complied. According to DL, there was a second incident just like this one.
42DL described another incident when KK called DL to come to KK’s cell. KK proceeded to masturbate. He threatened to hurt DL if DL did not watch. Again, according to DL, there was a second incident involving similar conduct.
43DL was subsequently moved to another unit. He said he got letters from KK threatening his family if he ever told anyone what happened.
AM
44AM provided a written statement dated July 28, 2021. He subsequently gave a videotaped police statement on August 6, 2021.
45AM said that he was housed in C range for a month. He initially thought he and KK were friends. He said he began to hear about things KK was doing to other inmates and he confronted KK. KK responded by threatening to “beat the shit” out of him if he did not leave the range. KK told him that if he didn’t keep his mouth shut he would “get cut up”. He said he then got “bounced” out of the unit.
46AM said he received a kite from one of KK’s friends, threatening that he’d better keep his mouth shut or he was going to “get it”. He said he saw another kite written by KK in which KK mentioned raping AP. He also said he saw KK staring at DM in the shower one day.
DM
47DM provided a written statement dated July 28, 2021 and a video recorded statement on August 6, 2021.
48DM said he moved onto C range around the end of June 2021. He shared a cell with DL. He said KK appeared at his cell door one day and offered him medication in exchange for sexual favours. He refused. He said KK threatened him that if he did not do what he was asked, he would get punched out. KK then told him to leave the range or he was going to get punched out.
49DM also said that on one occasion he saw his cell mate, DL, standing by their cell door. KK was on the other side of the door. DL was leaning into the hatch.
JW
50JW provided a written statement on August 3, 2021. He subsequently provided a video recorded statement to the police on August 6, 2021.
51JW said he was housed in Unit 2C at CNCC between July 10 and July 22, 2021. He said that KK was housed in the same unit at that same time.
52According to JW, Mr. King asked him if he was gay and told him he looked good. JW resisted KK’s advances. He said KK then told him he was “the boss” and that JW was going to have to do what he was told.
53KK, he said, began to write him kites and insisted that he write sexually explicit kites back.
54KK appeared at his cell on one occasion with some lotion or oil. He insisted that JW get naked and rub it on himself and masturbate for KK while he did so. Later that same day KK called him to KK’s cell and made JW watch him masturbate. This same routine was repeated on one further occasion.
55JW said he did not want to participate in sexual activity with KK, but he was afraid of KK. JW requested – and received – a move out of the unit.
THE ARGUMENTS
The Position of the Defence
56The defence application seeks to sever the counts into three separate trials as follows:
Trial One: Counts 1-2, involving the complainant JS;
Trial Two: Counts 3-4, involving the complainant, AP;
Trial Three: Counts 5-16, involving the complainants DK, DL, AG, DM and JW (referred to at times as the “residual counts”).
57KK accepts that it is appropriate that counts 5-16 be tried together. Though there are differences in the nature of the allegations of each of the five complainants involved in those counts, KK submits that they all flow from the allegations of DK. They are temporally connected. It was, he says, the allegations of DK that got the other inmates talking and led to a number of other complaints about him. He submits that there is a strong spectre of collusion among these five complainants that supports a joint trial.
58On the other hand, KK argues that there is a substantial risk of prejudice to him should the counts relating to JS and AP not be severed from the balance of the allegations and from each other.
59As Deschamps J. succinctly put it in Last, at para. 16, “the obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.”
60The risk identified by Deschamps J. is at the core of the defence position. KK is gravely concerned that evidence relating to DK, DL, AM, DM and JW will influence the outcome of the trial of the counts relating to AP and JS, even though that evidence is not admissible in relation to the allegations of AP and JS.
61Defence counsel urges the court to conclude that a balancing of the Last factors strongly favours granting the severance as requested.
62KK identifies two principal features of general prejudice that will, he says, infect a joint trial. These features are frequently raised in severance applications.
63First, he argues that trying multiple incidents of sexual assault together will tend to create the risk of improperly bolstering the credibility of each of the complainants. He says that the repetitive nature of the allegations across the various complainants will tend to bolster their credibility. And he is particularly concerned about the impact the video of him engaging in what he says are consensual sexual acts with DK will have on the jury. He fears that if the jury views that video, they will be more likely to believe that DK engaged in sexual activity with each of JS and AP.
64Second, he argues that trying all of the counts together will create a significant risk that the jury will engage in impermissible propensity reasoning. He is concerned that the sheer number of counts will tend to cause the jury to view him as a bad person – one who would likely have committed violent acts – and thus deserving of punishment. He is also concerned that if the Crown meets its burden of proof on any of counts 5-16, the jury may improperly infer that he is more likely to be guilty of the other charges against him, including counts 1-4.
65KK contends that a consideration of the balance of the factors identified in Last, will not overcome the general prejudice he has identified.
66He argues that:
(a) There isn’t a strong nexus, factual or legal, between the allegations made in counts 1-4 and the balance of the allegations. They are not significantly connected temporally or factually;
(b) There is no risk of inconsistent verdicts if counts 1-4 are severed from the balance;
(c) There is a reasonable chance he may wish to testify in defence to some counts, but not others. His ability to control his defence will be enhanced if the severance is granted;
(d) A joint trial will be unduly complex. Granting the severance requested will result in three trials, but each of them will be less complex and more manageable for the jury; and,
(e) While the Crown has raised the prospect of a future application to adduce count to count similar act evidence, that application does not have a reasonable prospect of success.
67On the latter point, KK submits that any similar act evidence application will be doomed to fail for two reasons.
68First, he argues that the allegations across counts are not sufficiently similar to justify admission as similar act evidence. For instance, the allegations involving AP and JS each involve oral sex and mutual masturbation within a shared cell, but the other allegations include a wide variety of other conduct. Some, not all, involve “watching” and “showing” from within a cell. Some, not all, involve physical contact. Some, not all, involve wooing and relationship-building. Some, not all, involve the exchange of kites. Some, not all, involve allegations of threats against family members. And some involve allegations of actual violence, while others do not.
69Second, he argues that the Crown will be unable to establish that there was no collusion amongst the complainants.
70The defence submits that, on balance, the truth-seeking function of the process will not be enhanced by a joint trial and a severance is justified as sought.
The Position of the Crown
71The Crown takes the position that the severance application should be dismissed. Three principal reasons are advanced in support the Crown’s position.
72First, the Crown submits that judicial economy – the avoidance of a multiplicity of trials – always favours a joint trial. This concern is particularly acute at present given the backlog of cases to be tried as a result of the impact of the COVID-19 pandemic on the courts. The Crown also asserts that a number of witnesses would be required to testify multiple times should the counts be severed as requested by the defence.
73Second, the Crown anticipates bringing a count to count similar act application in the future. It contends that its application is not only viable, but compelling, in all the circumstances. The presence of strong similar act evidence fatally undermines the severance application, in the submission of the Crown. It also means that if the counts are severed, as requested by the defence, very similar evidence will have to be tendered across three separate trials. There will be little, if any, reduction in alleged prejudice to the accused and gross inefficiency in the process.
74Finally, the Crown submits that there is a strong factual nexus that favours the hearing of all counts in one trial. The counts are, the Crown says, connected by narrative, chronology, context (including the setting in which the events took place) and the timing of events.
75Crown counsel discounts the defence assertion that a joint trial would be too complex for the jury to manage. In her submission, a modern-day jury, properly instructed on admissible evidence, would be well-equipped to determine all counts individually, as it must do. In any event, even if the counts involving JS and AP are severed, the Crown will likely advance similar act evidence applications in the separate trials involving those complainants. The result may well be three equally complex trials, rather than one.
76The Crown also discounts the defence assertion that KK may wish to testify on some counts and not others. The Crown views this assertion as tenuous. Moreover, even if the severance is granted as sought, there will still be one trial involving five complainants. KK will still be faced with the dilemma of wishing to testify in relation to some counts but not others. In other words, a severance will not completely solve that dilemma.
77In the Crown’s submission, KK is unable to meet the burden of demonstrating that the interests of justice require a severance. Society’s interest in judicial economy and the truth-seeking function of the trial both support a joint trial.
DISCUSSION
78It is KK’s onus to establish that a severance should be granted in the interests of justice. The assessment of whether he has met that onus requires a careful consideration of the factors identified in Last as being germane to severance applications. I acknowledge that Deschamps J. did not intend to provide, in Last, an exhaustive list of relevant factors to be considered. The governing test – the interests of justice – is very broad and certainly capable of engaging a wide range of issues. Having said that, the parties’ submissions in this instance were generally tethered to the factors identified in Last. In the result, I will canvass and, ultimately, balance those factors.
79To recap, the Last factors include:
(a) The general prejudice to the accused;
(b) The legal and factual nexus between the counts;
(c) Whether the accused intends to testify on one count but not another;
(d) The possibility of inconsistent verdicts;
(e) The desire to avoid a multiplicity of proceedings;
(f) The use of similar fact evidence at trial;
(g) The length of the trial having regard to the evidence to be called;
(h) The potential prejudice to the right of an accused to be tried within a reasonable time; and,
(i) The existence of antagonistic defences as between co-accused persons.
80Not all of the Last factors are engaged in this instance. There are no co-accused and accordingly no antagonistic defences to grapple with. There is also no suggestion that the decision on whether to sever one or more counts will impact on KK’s right to be tried within a reasonable time.
81I will consider the balance of the enumerated factors, one by one.
General Prejudice
82I have already set out KK’s concerns in terms of prejudice. I will not repeat them here, other than to say they generally relate to the fear that the jury will engage in impermissible propensity reasoning.
83In Last, Deschamps J. observed that the risk of propensity reasoning to Mr. Last by trying two unrelated allegations of sexual assault together “cannot be understated”. The jury would inevitably wonder, he noted, why two complainants who did not know each other would independently accuse Mr. Last of sexual assault. Moreover, if the jury were satisfied beyond a reasonable doubt that Mr. Last had sexually assaulted one of the complainants, they may well be inclined to reason that he had the propensity to commit sexual assault and convict on the other.
84It is impossible not to recognize that the same risks of prejudice present in Last are present here. Only they are magnified here because there are so many more counts and so many more complainants.
85In R. v. Handy, 2002 SCC 56, Binnie J. described the prejudice associated with propensity evidence in two broad categories: moral prejudice and reasoning prejudice.
86Moral prejudice reflects the concern that the jury may wrongfully convict based on a finding that the accused is a bad person deserving of punishment. Reasoning prejudice describes the risk that the jury may use propensity evidence for a reason other than its permitted purpose. The jury may reason improperly, for instance, that if the accused conducted himself disreputably on one occasion, he is more likely to have done so on another. Reasoning prejudice also captures the concern that an unwarranted amount of time, effort and resources may be directed at the propensity evidence relative to its value in the trial.
87The concerns about general prejudice raised by KK have elements of both moral and reasoning prejudice to them. His fear that the sheer volume of counts may cause the jury to view him as a bad person reflects a concern about moral prejudice. His fear that the jury may improperly use evidence on one count to convict on others is a concern about reasoning prejudice.
88In my view, the concern about moral prejudice is less compelling than the concern about reasoning prejudice.
89KK seeks only to sever off the allegations involving AP and JS (counts 1-4) from the balance of the counts (5-16). The residual trial will continue to have a significant number of counts and allegations. To the extent that he is genuinely concerned about the number of counts on the indictment, his proposed severance offers a tepid solution. In my view, any concern about moral prejudice is likely to be more effectively attenuated through a proper jury instruction than a severance of only 4 of 16 counts.
90The concern about reasoning prejudice is genuine. In a joint trial, the jury will inevitably hear a whole lot of evidence admissible on one count (or some counts) but inadmissible on other counts. There is a real risk that the jury may use evidence admissible on one count to support a guilty verdict on another count. There is also a real risk that if the jury concludes that the Crown has proven KK’s guilt beyond a reasonable doubt on one count, that he is more likely to be guilty of the acts alleged on other counts.
91In Last, Deschamps J. concluded that there was a real risk of prejudice to Mr. Last in a joint trial, manifested by concerns about credibility cross-pollination and prohibited propensity reasoning. There was an absence of compelling countervailing reasons for having a joint trial. There was no risk of inconsistent verdicts and no substantial overlap in witness testimony. There was no compelling factual or legal nexus between the counts. And the circumstances were not sufficiently similar in character to support a similar act evidence application – indeed no such application was contemplated. There was, in short, no truth-seeking interest in trying the counts together.
92One of the key factors distinguishing this case from Last is, of course, the spectre of a similar act evidence application. As Deschamps J. observed at para. 33 of Last, “In many cases a ruling allowing similar fact evidence will favour a joint trial since the evidence on all incidents would have to be introduced in any event.”
93The Crown does not suggest that there is no risk of propensity reasoning here. Indeed, quite the opposite. It is the Crown’s position that in the circumstances present here, the jury may engage in permissible propensity reasoning. Crown counsel intends to advance an application to rely on count to count similar act evidence. Where admitted, that evidence will be offered to not only bolster the credibility of each of the individual complainants, but to demonstrate that KK was, as she described him in paragraph one of her factum:
[A] smart and controlling predator…[who] capitalized on a jailhouse culture of silence and toughness, and used violence, threats of violence, intimidation, and manipulation to gain power and authority over others. With that power and authority, he sexually victimized five inmates with impunity.
94In other words, it is the Crown’s position that KK had a specific propensity to utilize his strength and willingness to commit violence against weaker inmates in order to abuse them for his own sexual gratification. According to the Crown, he also had a particular modus operandi, which involved the use of kites. Specifically, he forced his victims to write him sexualized notes as “insurance” should anyone allege that the sexual activity he engaged in with them was non-consensual.
95The Crown argues that its similar act application is very viable. And that viability fatally undermines the severance application. Any residual prejudice to Mr. Last can be attenuated by an appropriate jury instruction.
96By way of summarizing this factor, I find that there is a genuine risk of significant prejudice to KK if all 16 counts are tried in one trial. That prejudice is associated with the risk of impermissible propensity reasoning and credibility cross-pollination. It remains to be determined if there are other, countervailing factors that must be balanced against that risk of prejudice, including the prospect of an application by the Crown to rely on count to count similar act evidence.
The Legal and Factual Nexus
97In Last, Deschamps J. agreed with a dissenting opinion from the Court of Appeal to the effect that the factual and legal nexus between the two allegations of sexual assault were “exceptionally weak”. He noted that the cases involved different complainants, occurred in different locations and about one month apart. Though both related to sexual assault, they raised different legal issues. One involved an assertion of consent. The other was an identification case. Finally, none of the evidence tendered on one set of charges was admissible on the other. There was, as I noted, no similar act evidence application.
98In my view, this case is readily distinguishable from Last in terms of the strength of the factual, if not the legal, nexus.
99Earlier in these reasons I set out a list of the ways defence counsel says the counts before the court are factually different. Some, for instance, are allegations of sexual assault, while others are not. Some include physical contact, while others include only watching. Some include the exchange of kites, while others do not.
100There are no doubt differences in the character and severity of the various counts on the indictment. These are not 16 identical counts. Nevertheless, there is a good deal of connectivity in the factual matrix underlying all of the counts.
101The alleged offences all took place within about a seven-month time frame and all while KK was housed in a particular range at CNCC. KK’s counsel submits that the location of all of the alleged offences is not probative in any way because KK was an inmate – he had no choice but to be in the range where he was assigned. In my view, however, the location is just a necessary backdrop to the culture in which the alleged misconduct occurred.
102Each of the alleged offences took place within a prison culture which the average juror is going to know little, if anything, about. Prosecuting each of the charged offences is going to require the Crown to tender evidence about that culture; about KK’s place at the top of the physical hierarchy; and about KK’s use of his dominant stature to get what he wanted.
103Each of the alleged offences is, in some way, a manifestation of KK’s dominance over the other inmates on his range. In relation to each complainant, KK is alleged to have used violence, or the threat of violence, to get what he wanted:
in the case of JS, AP and DK, mutual oral sex;
in the case of AP, DK, DL and JW, exculpatory kites;
in the case of DL and JW, each watching the other masturbate;
in the case of AM, his silence; and,
in the case of DM, the threat of violence was used in an unsuccessful attempt to persuade DM to engage in sexual activity.
104The jury is necessarily going to need to know, in relation to all counts, how housing is structured at the CNCC; how inmates communicate with one another; how inmates might go about making a complaint; and how prison culture works, amongst other things.
105In my view, there is a reasonably strong factual nexus amongst all counts.
The Intention to Testify
106I confess that I find the intention to testify issue to be a singularly murky factor in the circumstances of this case.
107It is not necessary, of course, for KK to unequivocally commit to testifying on one or another count, while committing not to testify on others. In other words, he need not make a binding election at the time of the severance application.
108What he does need to do is demonstrate that there is an objective rationale for testifying on some counts but not others. See Last, para. 26.
109In his factum, defence counsel notes the following, in terms of the intention to testify issue:
(a) The counts in relation to AP and JS will depend almost exclusively on the testimony of AP and JS. In other words, he does not believe there will be any significant corroborative evidence apart from their testimony. In these circumstances, he thinks there is “considerable probability” that KK will have to testify to challenge the allegations (para. 33);
(b) That said, given specific inconsistencies in the evidence of JS and AP, it may not be necessary for KK to testify on those counts (para. 34);
(c) Given the video of arguably consensual sexual contact between KK and DK and what he asserts is significant collusion among the complainants apart from AP and JS, it is possible that KK will not need to testify on any of the residual counts (para. 35);
(d) On the other hand, given that many of the residual counts depend almost entirely on the veracity of the individual complainants, KK may need to testify to challenge their allegations (para. 35).
110I conclude from counsel’s submissions that, depending on how the evidence rolls out, KK may wish to testify on all, some or none of the counts against him. He has covered all of the bases.
111I accept, based on the position articulated by defence counsel, that there is an objective rationale for why KK might want to testify on some counts but not others. That said, this remains, for me, an uncompelling factor either way. I say this for two reasons:
(a) While, in theory, KK’s ability to control his defence increases with each count severed, even in his proposed future he will still be faced with one trial involving 12 counts. He will still have a significant dilemma to contend with regarding his election to testify; and,
(b) The defence position on this issue has not taken into account a huge elephant in the room. In particular, KK is presently serving a lengthy penitentiary sentence. He has been classified as a long-term offender. He has an unenviable criminal record. Such a record may pose a serious disincentive to testify at any time, on any count.
The Risk of Inconsistent Verdicts
112There is no suggestion that there is any likelihood of inconsistent verdicts if the counts were to be severed as requested by KK.
The Length and Complexity of the Trial
113It is difficult, from the court’s current vantage point, to assess what a single trial will look like in terms of complexity and length and compare that to what the three trials proposed by KK will look like on similar metrics. This difficulty is largely a function of the unclear status of the Crown’s expected similar act evidence application.
114On one level the joint trial is not terribly complicated. The Crown’s position is that KK dominated the range through the use of intimidation and violence. He then used that position of dominance to assault and sexually assault a number of his fellow inmates. The complainants are all individuals who allegedly fell victim to KK’s intimidation, violence and sexual violence.
115Two factors will add layers of complexity to the case.
116The first is the nature of KK’s defences. He may advance different defences to different counts. On some, he may take the position that the conduct complained of was consensual. On others he may deny that it occurred at all. The spectre of collusion will loom large in his defence.
117The second is the Crown’s application to adduce count to count similar act evidence. Should that succeed, in whole or in part, the jury may have to grapple with a consideration of that evidence on some counts and not others. And they will have to factor in the possibility of collusion. It would not be an easy task for an experienced jurist, let alone an inexperienced juror.
118It is impossible to say, with any exactitude, how long a single, joint trial would take to complete. My best guess from this vantage point is probably about three weeks.
119There is no doubt that three separate trials would take longer to run. Assuming that KK maintains his current election to be tried by judge and jury in all three cases, there would be three sets of jury selections, three pre-charge conferences, three final jury charges to be delivered, and three sets of deliberations.
120In addition, there will necessarily be some repetition of evidence. In each trial, the Crown will seek to tender evidence about the physical layout of CNCC and about jailhouse culture. In at least two of the three trials, the Crown will seek to tender evidence about inmates’ use of kites. And in all three trials, the Crown will seek to tender evidence from a number of KK’s fellow inmates (presumably the other complainants) about KK’s propensity for violence in order to demonstrate his position of dominance on the range and, in turn, to bolster the credibility of the complainants on the issue of consent (or the absence thereof).
121One or more of the complainants may be called to testify in one or the other of the severed trials. AM, for instance, is expected to testify that he observed a kite authored by KK in which KK referred to “raping AP”.
122In addition, AP, and possibly other complainants, may become necessary witnesses in the trial involving JS if the defence takes issue with the timing of JS’s complaint. The investigation into KK was initially triggered by a complaint made to the institution in February 2021 by AP’s mother. She told a sergeant at CNCC that her son had been sexually assaulted. The police were contacted. AP provided a statement. He told the police that JS may also have been assaulted. JS declined to give a statement. Further inmates came forward, however, in July 2021 and reported further incidents of assault and sexual assault. JS was re-contacted and agreed to make a statement. AP may be tendered as a witness in JS’s trial, should the defence advance an assertion of recent fabrication.
123In any event, in each of the severed trials, the Crown will undoubtedly advance applications to adduce extrinsic evidence of bad character. As I said, that bad character evidence will include evidence about KK’s use of intimidation and assaultive behaviour to maintain a position of dominance and authority on the range. And in relation to AP, it will include evidence about his use of kites as a sort of modus operandi.
124In the residual trial, the Crown will undoubtedly advance an application to rely on count to count similar act evidence.
125AP and JS may, in the result, be called to testify in their own trials, each other’s trials and in the trial of the residual counts, depending on the success of the Crown’s similar act evidence applications.
126I accept that each trial will be somewhat less complex, given that there will be fewer counts for each of the three proposed juries to deal with. Each jury may still have to manage different defences, however, since both of the severed trials will include at least two counts. Consent may be advanced as a defence to one count, while a denial of the alleged conduct may be advanced as a defence to the other. And of course, on the residual counts there will still be five complainants and the prospect of different defences to each of the counts.
127I expect that each of the severed trials would take 7 to 10 days to complete.
128In summary, my view is that the time to complete the trials will considerably longer (5 – 6 weeks instead of 3) if the requested severance is granted. There may be some reduction in the complexity of the trials, at least the severed trials, but only marginally so.
Avoiding Multiple Proceedings
129There can be no question that the desire to avoid multiple proceedings tilts in favour of a joint trial. This factor has never been more compelling than at present, when the court faces substantial backlogs of criminal cases as a result of the COVID-19 pandemic. Nevertheless, KK is entitled to a fundamentally fair trial. He is entitled to a severance if it is in the interests of justice that it be granted. In terms of the mix of factors to be balanced, however, this one undoubtedly points towards a single trial.
The Use of Similar Act Evidence
130I have used the phrase “similar act evidence” throughout these reasons to describe a particular type of evidence the Crown has flagged an intention to adduce. “Similar act evidence” is how the Crown has described the evidence in issue.
131The phrase “similar act evidence” is a little misleading because it captures only one particular form of propensity or bad character evidence. It is apparent to me, however, from the way in which the Crown has described its position, that there are, in fact, two distinct types of propensity evidence the Crown seeks to introduce into evidence in the trial(s) against KK. I have alluded to both types already.
132The first is KK’s propensity to use violence and intimidation to control other inmates. The Crown will seek to utilize the count to count evidence of a broad range of intimidation and violence against multiple complainants to bolster the credibility of each complainant that they were the victim of KK’s threats and assaultive behaviour and to bolster the credibility of JS, AP, DK, DL and JW that they did not consent to engage in sexual activity with KK.
133The second is KK’s propensity to utilize kites either as a prelude to sexual interaction, as fantasy material, or as “insurance” to rebut any future allegations of an absence of consent. He is alleged to have utilized kites for one or more of those reasons with AP, DK, DL and JW. The use of kites is, the Crown asserts, a distinctive mark. It is a part of a particular pattern of behaviour utilized by KK to control and sexually abuse his victims.
134The Crown’s application has not yet been initiated. In terms of the use of count to count similar act evidence, it need not be initiated until the end of the Crown’s case. At this stage of the proceedings, the Crown need only establish that its application is viable. In other words, that it is reasonable to believe that it might succeed.
135Bad character evidence – whether in the form of extrinsic disreputable conduct or prior similar acts – is presumptively inadmissible. See R. v. Handy, as above. It is exceptionally admitted where its probative value outweighs any moral or reasoning prejudice that will infect the trial should it be admitted.
136It is not my role to conduct the weighing exercise mandated by the Supreme Court in Handy. It is, as I said, only my role to assess whether the application has a reasonable chance of success.
137The defence asserts the Crown’s proposed application has little, if any, chance of success, largely on the basis that the Crown will be unable to establish, on a balance of probabilities, that there was no collusion between the complainants.
138Where collusion is present, it destroys the foundation of admission for similar act evidence – namely that the events described by the various complainants are too similar to be credibly explained by coincidence. See Handy, para. 104. Collusion presents an explanation for apparent collusion apart from the unlikely possibility of coincidence.
139Binnie J. instructed in Handy that, where there is an air of reality to the suggestion of collusion, the Crown must disprove the possibility of collusion at the admissibility stage. The applicable burden of proof is a balance of probabilities. See also R. v. Wilkinson, 2017 ONCA 756 at para. 30. The air of reality threshold requires that there be evidence of something more than contact between complainants. “If the evidence amounts to nothing more than opportunity, it will usually be best left to the jury.” See Handy, para. 111.
140Defence counsel submitted that the issue of collusion “hangs heavy over these allegations”. He points to the following evidence in support of that assertion:
AP told the police that JS told him that KK had attempted to sexually assault him as well, but he refused and was beaten up in the result;
DK told the police that other inmates had encouraged him to fill out a complaint. He is dyslexic so one of the server inmates helped him write out his complaint. He said he waited to write it out to “make sure he talked to guys, got together talked, having to put an end to this, enough is enough”;
MG told the police that he kept hearing about the things KK was alleged to have done to other inmates. He felt he needed to do something to put a stop to it and he confronted KK;
DM told the police that on one occasion he saw his cell mate, DL, lean into the food hatch in their cell door. KK was on the other side of the door at the time. He said DL told him that KK reached his hands down DL’s pants and fondled his penis; and,
JW told the police that his former cell mate (whose name he could not remember) “knew the situation” he was in. He also said that KK had raped one of his friends, DK. And further that he had shared his story with two other people. Those people told him that they were brought out for questioning and to make statements and so he called his lawyer to tell her what had happened to him.
141The defence position is essentially that there was a lot of talking going on in the jail. Inmates were communicating with one another about what had allegedly happened to them or to others. Then people came forward and started making statements. The spectre of both conscious and unconscious collusion is present and must be disproved by the Crown to the balance of probabilities standard.
142In the submission of defence counsel, the Crown will be unable to disprove collusion, which will be fatal to its application to introduce similar act evidence.
143From my vantage point, I have to acknowledge that the prospect of collusion certainly impacts on the viability of any Crown application to adduce similar act or other bad character evidence.
144That said, on the present evidentiary record, there is little more than evidence of contact and opportunity. Clearly the inmates were present together in a confined space. Clearly some of them talked to others about what had happened to them, or about what they had heard happened to others. But that contact does not automatically amount to collusion.
145There is scant, if any, evidence that JS and AP colluded with one another or with other inmates. There is some evidence that there may have been discussions involving at least some of the other complainants, but exactly what was discussed and between whom is not entirely clear.
146None of the witnesses has specifically been asked about collusion. None has been cross-examined on the issue. From my present vantage point, I can conclude little more than that collusion is a live issue. At this stage it does not impact significantly on my assessment of the viability of the Crown’s similar act evidence application.
147In my view that application does have a reasonable prospect of success.
148The Crown is not seeking to tender evidence that KK is a generally bad person. Nor is it seeking to argue that he is more likely to have committed the alleged offences because he is a bad person.
149Instead, the Crown is seeking to adduce count to count bad character evidence to establish, in relation to all of the counts, that KK had a specific propensity to use intimidation and violence to control and dominate other inmates – particularly new inmates, younger than him. This evidence goes to the following issues: the actus reus of the offences (whether they took place); KK’s motive; and, in terms of the sexual assault allegations, consent.
150In addition, the Crown seeks to utilize count to count similar act evidence to support the credibility of the complainants who say they were sexually assaulted by KK. That similar act evidence goes to the actus reus of the alleged offences of sexual assault – both in terms of whether sexual activity occurred and whether it was consensual. That similar act evidence includes: the forced writing of sexualized kites; the instruction to flush kites authored by KK down the toilet; and threats of violence in the event of non-compliance.
151The Crown asserts, and I agree, that the use of kites is particularly striking. They were arguably a method by which KK exerted control over his targets and maintained their silence.
152In my view, subject of course to how the collusion issue plays out, the Crown has a reasonably good chance of succeeding on its application to adduce bad character and similar act evidence. The Crown has identified the evidence in issue with specificity. It has identified the live issues the evidence goes to. And it is apparent that the evidence on offer has reasonable probative strength. Since it is count to count evidence, it will be before the jury in any event. Any prejudice to KK can be largely attenuated through proper jury instructions.
153Again, I am not deciding the similar act evidence application. I am only opining that it looks to me to be reasonably viable.
The Balancing
154Balancing the various Last factors applicable to the circumstances of this case ultimately, in my view, weighs in favour of a joint trial.
155The starting point is that a multiplicity of trials is to be avoided unless it is in the interests of justice to sever counts or accused persons. The onus is on KK to satisfy the court that the interests of justice do require a severance of counts in this instance.
156KK has satisfied me that there is a significant risk of prejudice to him if all counts are tried together. That prejudice is primarily associated with the risk of impermissible propensity reasoning. The severance he has suggested will go part of the way to attenuating at least some of the risk. This factor tends to favour a severance.
157There are, however, a number of important countervailing factors. Two are particularly prominent.
158First, I am satisfied that there is a reasonably strong factual nexus across the counts. All of the counts before the court have a common theme. They all occurred at CNCC in one particular range. KK is alleged to have been the principal bully on the range – the dominant male. He is alleged to have utilized intimidation and assaultive behaviour to control and abuse his fellow inmates over a period of about seven months. I appreciate that each complainant describes somewhat different abuse at KK’s hands, but there remains, in my view, a strong factual nexus across all counts. This factor favours a joint trial.
159Second, I am satisfied that the Crown’s proposed application to use count to count propensity evidence in the ways I have described is reasonably viable from my current vantage point. In other words, the truth-seeking function of the process will be served by a joint trial. This factor strongly favours a joint trial.
160A joint trial will not be without its complexities, but both the severed trials and the residual trial would also have their own complexities. Moreover, conducting three trials would take considerably longer than one joint trial.
161I accept that KK would be in a somewhat better position to control his defence if the counts were severed as he has asked. But I am far from persuaded that there is an objectively reasonable prospect of him testifying in relation to some counts but not others. He might. He might not. I consider this a relatively neutral factor.
162On balance, all things considered, I am of the view that it is in the interests of justice that a joint trial proceed, as currently framed. In the result, the application is dismissed.
C. Boswell J.
Released: August 24, 2022