COURT FILE NO.: CR-21-30000216-0000

DATE: 20220907

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D.F.

Applicant

Jonathan Smith, for the Crown

Adam Newman, for the Applicant

Heard: September 2, 2022

SEVERANCE RULING

Schabas J.

[1] The applicant, D.F., is charged with sexual offences involving two complainants. Counts 1 – 3 of the Indictment relate to sexual offences allegedly committed on E.Q. between 2002 and 2007. Count 4 relates to an alleged sexual assault of L.H. in 2007. The applicant submits that there is no factual or legal nexus between Counts 1-3 and Count 4 and that they should be tried separately from one another.

[2] In my view, there are factual and legal connections between the cases involving the two complainants which favour trying all Counts together. A jury is likely to be made aware of both complaints. There is some possibility that the evidence on one complaint may be admissible as similar fact evidence on the other complaint. Balancing these factors against potential prejudice to the accused from a jury hearing about both incidents can be addressed in a limiting instruction by the trial judge. Accordingly, I am not satisfied that the interests of justice require that the Counts be severed.

The Legal Framework

[3] Under s. 591(1) of the Code, R.S.C. 1985 c. C-46, 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.”

[4] The Code gives no guidance as to what factors or criteria should guide a judge in considering a motion to separate Counts in an indictment. 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:

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.

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.

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].

[5] No single 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. The burden of satisfying the court that Counts should be severed lies with the applicant. However, where there is a significant risk of prejudice due to “the dangers of cross-pollination and prohibited propensity reasoning”, Counts should be severed where there is an “absence of compelling countervailing reasons for having a joint trial”: Last at para. 44.

Application of the relevant factors

Factual and legal nexus

[6] The complainants are first cousins of one another and nieces by marriage of the applicant. The allegations involving E.Q. relate to several incidents between 2002 and 2007 when E.Q. was aged 7 – 11 years old. L.H.’s allegation relates to one incident when she had just turned 18, in 2007.

[7] The alleged assaults took place in family homes in Toronto. Events involving E.Q. are alleged to have occurred in the applicant’s apartment, which was in the same building as E.Q.’s grandmother’s apartment which she visited regularly. The alleged assault of L.H. took place in the basement of her home during a family get-together.

[8] Although the allegations involving E.Q. are more serious and span several years, both complaints involve the applicant engaging in inappropriate touching, and talking about or showing sexual material to his nieces. Both complainants were vulnerable to an older uncle in a position of trust as a family member who had access to them in private settings without other adults present.

[9] L.H. told her mother, R.H., about the assault on her shortly after it occurred in 2007. R.H. confronted D.F. and his wife (R.H.’s sister) about it. R.H. testified at the preliminary inquiry that D.F. apologized. D.F. and his wife moved to Kingston following this incident.

[10] The matters were not reported to the police until 2019. E.Q. reported her allegations first, in January 2019 after speaking to R.H. L.H. also learned of E.Q.’s allegations at that time. Soon after, in March 2019, L.H. made her complaint to the police “in support” of her cousin as L.H. “wouldn’t have wanted to do it alone.”

[11] The delay of approximately 12 years in reporting the complaints is likely to be addressed at trial and a jury will be made aware of the two sets of charges given that the reporting of one led to the reporting of the other. R.H., who spoke to both E.Q. and L.H., may be a witness on both complaints.

[12] There is, therefore, a factual and legal nexus between the two complaints and reasons for having the matters tried jointly. There are efficiencies in having a joint trial on similar charges with potential overlapping witnesses and similar legal issues, which will avoid a multiplicity of proceedings.

Potential similar fact evidence

[13] The Crown also submits that the evidence of one complainant may be admissible as similar fact evidence on the other complainant’s case. It has been observed that “in sexual assault cases, similar circumstances are often more compelling than similarities or dissimilarities in conduct.”: R. v. S.C., 2018 ONCA 454, 361 C.C.C (3d) 419, at para. 23. In R. v. B. (L.) (1997), 35 OR (3d) 25 (C.A.), at pp. 52-53, the Court of Appeal stated that “in cases of sexual assault, the similarities or dissimilarities between the sexual acts that are alleged are, of course, relevant, but often not as compelling as the circumstances surrounding the incidents”. In S.C., the similarities relied upon included the accused’s position of trust as an uncle/step-father to vulnerable complainants and access to them in the privacy of a family home.

[14] The Supreme Court has addressed the interaction of similar fact evidence and multi-count indictments where a severance motion is brought. 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.

[15] R. v. Arp was decided in 1998. At that time only a trial judge had jurisdiction to sever Counts. Section 551.3 now permits a case management judge to adjudicate the issue prior to trial. Consequently, as a case management judge and not the trial judge, the admissibility of similar fact evidence and its impact, is not before me. However, the potential use of similar fact evidence is nonetheless a relevant consideration on a pre-trial severance motion.

[16] In R. v. Blacklaws, 2012 BCCA 217, 285 C.C.C (3d) 132 rev’d 2013 SCC 8, [2013] 1 S.C.R. 403, the Supreme Court adopted the dissenting reasons of Finch C.J.B.C. in allowing an appeal which resulted in dismissing a severance application involving two separate assaults that involved sex and violence. In addressing the anticipated similar fact application, Finch C.J.B.C. noted that on a severance motion a judge must only assess whether the application “has some possibility of success, based on the submissions that the parties have already made”: para. 43. This is a relatively low test and has been met in this case.

[17] Here, the circumstances have some degree of similarity which may assist in assessing the credibility of the complainants, as was the case in R. v. W.L., 2015 ONCA 123 at para. 8. The Crown may or may not ultimately satisfy the trial judge that the evidence meets the higher standard for admission as similar fact evidence, but there is some possibility that it may succeed.

[18] Even if a similar fact application fails at trial, the danger of prohibited propensity reasoning – that the jury will conclude that the two allegations make it more likely that the events occurred, or that if they find D.F. guilty on one charge they will be more likely to conclude he must be guilty of the others – can be addressed through instructions to the jury. As addressed by Finch C.J.B.C. in Blacklaws at paras. 59-63, the jury can be warned of the dangers of being influenced by evidence on other counts and can be told not to use evidence relating to one complaint, or complainant, in deciding other complaints.

[19] Juries are expected to follow instructions; our criminal justice system relies on it. Indeed, in R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at paras. 66-67, the Supreme Court noted that a jury appeared to follow instructions warning it not to use propensity reasoning in acquitting an accused of some charges and not others. Shearing dealt with a multiplicity of incidents and numerous complainants which made the jury’s task more complicated than this case, which deals with just two complainants.

Other factors

[20] Another factor listed in Last is whether a joint trial will impact detrimentally on the accused’s decision to testify, as the accused may wish to testify on one set of charges but not others. In this case there is no indication from the accused that this is an issue; moreover, the primary focus of the case is likely to be the credibility and reliability of the evidence of the complainants.

[21] Other factors, such as the complexity of the evidence, the possibility of inconsistent verdicts, the right to trial within a reasonable time, and the existence of antagonistic defences do not support severance. On the other hand, the efficiency of having just one jury trial avoids a multiplicity of proceedings which favours keeping the Counts together.

Conclusion

[22] The Supreme Court stated in Last at para. 16, that the “ultimate question” involves considering “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.” In my view, these objectives can be achieved in a trial on the Indictment as framed. Balancing all the relevant factors, I am not satisfied that it is in the interests of justice to sever the Counts involving E.Q. from the Count relating to L.H.

[23] The application is dismissed.

Paul B. Schabas J.

Released: September 7, 2022

COURT FILE NO.: CR-21-30000216-0000

DATE: 20220907

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

D.F.

SEVERANCE RULING

Schabas J.

Released: September 7, 2022