COURT FILE NO.: CR-21-30470

DATE: 2022/12/02

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

M. Purcell, for the Crown

– and –

ROBERT WALLER

M. Johnson, for the Defendant

Defendant

HEARD: November 23, 2022

REASONS FOR DECISION

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE J.A. PARFETT, SUPERIOR COURT OF JUSTICE, EXCLUDING PUBLICATION IN QUICKLAW OR DISSEMINATION TO JUDGES AND COUNSEL.

PARFETT J.

This matter is an application by Mr. Robert Waller for severance of a five-count indictment, pursuant to s. 591(3)(a) of the Criminal Code.[^1] He seeks to have a separate trial in relation to each of the four complainants.

ISSUES

The principal issue is whether the Applicant will be denied a fair trial if this matter, involving four complainants, proceeds on a single indictment. The subsidiary issues are whether the allegations are sufficiently similar that a count-to-count similar fact application is viable and/or whether that, or other factors, require severance of the counts in the interests of justice.

BACKGROUND

The Applicant is a Lieutenant-Commander in the Canadian Navy. He was also a member of the RCAF pipe and drum band. The four complainants were all either members of, or associated with, the band. The allegations span a two-year period from April 2016 to June 2018.

Counts 1 and 2 relate to one complainant, TR. TR was a member of the pipe and drum band. The Applicant is alleged to have offered the complainant a ride home in his car from a social event involving band members. TR indicated in her statement that the Applicant stopped the car before arriving at her home and kissed her on the lips. TR stated the kiss was unwanted. On a second occasion, the Applicant and TR were both in a bar and the Applicant touched TR’s buttocks.

Count 3 relates to JL. Both the Applicant and JL attended a pub as part of their band activities. The Applicant offered to drive JL home and during the drive, JL alleges the Applicant put his hand on her inner thigh and caressed it.

Count 4 relates to SD. The band members went to an event in Virginia, USA. SD was the daughter of a band member and the designated photographer. The Applicant went to SD’s hotel room to provide some band related information. He asked SD whether she would join him in the

[^1]: Criminal Code, R.S.C., 1985, c. C-46, s 591(3)(a).

hotel’s hot tub. She refused and then the Applicant is alleged to have touched her lip and then placed his finger in her mouth.

Count 5 relates to RH. The band was in Virginia, USA to attend an event. During the event, RH was sitting next to the Applicant. RH alleges the Applicant repeatedly tried to touch her leg with his hand. A short while later, they were both in the hotel’s hot tub. RH stated the Applicant touched her leg with his leg and moved his foot up and down her calf.

LEGAL PRINCIPLES

The relevant portions of s. 591 of the Criminal Code state,

(1) Subject to section 589, any number of counts for any number of offences may be joined in the same indictment, but the counts shall be distinguished in the manner shown in Form 4;

(2) Where there is more than one count in an indictment, each count may be treated as a separate indictment;

(3) The court may, where it is satisfied that the interests of justice so, order

a. that the accused or defendant be tried separately on one or more of the counts;

The words of subsection (3) – “where [the court] is satisfied that the interests of justice so require” – confer a broad discretion on the court.

The Applicant bears the burden of demonstrating on a balance of probabilities that the interests of justice require severance.[^2] As noted in R. v. Last [^3], “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.”

[^2]: R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 24.

[^3]: Last, at para. 16.

R. v. Last is the seminal decision in relation to severance applications. In that decision, the Supreme Court of Canada set out several factors that should be considered in determining whether severance is appropriate. They are a non-exhaustive list and include:

a. the general prejudice to the person on trial;

b. the legal and factual nexus between the counts;

c. the complexity of the evidence;

d. whether the person on trial intends to testify on one count but not another;

e. the possibility of inconsistent verdicts;

f. the desire to avoid a multiplicity of proceedings;

g. the use of similar fact evidence at trial;

h. the length of the trial having regard to the evidence to be called;

i. the potential prejudice to the person on trial with respect to the right to be tried within a reasonable time; and

j. the existence of antagonistic defences as between co-accused persons.[^4]

Only some of the factors listed apply to the present case and several do not. In the present case the following factors do not apply; the possibility of inconsistent verdicts, the complexity of the evidence and the existence of antagonistic defences. The Applicant indicated that if there was severance, he was prepared to waive s. 11(b) from the present trial date to the new trial dates because otherwise, s. 11(b) would have been a live issue in the case.

As noted in R. v. Price, no one factor is determinative of the case, and all relevant factors must be weighed to determine whether severance is appropriate.[^5] The list of factors will be given different weight depending on the circumstances of each case and the court is required to perform a balancing exercise between the Applicant’s right to a fair trial and society’s interest in seeing

[^4]: Last, at para. 18.

[^5]: 5 R. v. Price, 2017 ONSC 1077 at para. 18.

that justice is done efficiently and cost-effectively.[^6] In undertaking the analysis, the judge must be mindful of the risk that evidence on one count could influence the verdict on an unrelated count.[^7]

ANALYSIS

The key issue in the present case is the viability of a count-to-count similar fact application, which the Crown has indicated it intends to bring. I note that at this stage, I am not required to rule on any similar fact application, nor am I required to conduct an exhaustive analysis of whether such an application is likely to succeed. All that is required is that I consider whether the application has “some possibility of success, or whether it is reasonable to consider that it might succeed.”[^8]

Given that the Crown will not bring its similar fact application until sometime after the trial has commenced, the analysis of the viability of such an application is complicated. As noted in R.

v. Sahdev,

Assessing the viability of a similar fact 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 fact evidence is on the Crown. The exercise must be approached with great care.[^9]

In the present case, the Applicant argues there are no similarities beyond the generic. In addition, he states there is no legal or factual nexus as the allegations do not occur in the same location, at the same time or in the same manner. He also notes that there are significant differences in the ages of the complainants. He contends that the only unifying factor is the Applicant himself and that as a result, trying the counts together risks cross-pollination and propensity reasoning.

I do not agree. Although the Applicant is correct with respect to some of the differences he points to, the evidence that is presently available indicates there are also significant similarities.

[^6]: Last, at para. 18.

[^7]: Ibid at paras. 16-17.

[^8]: R. v. R.C., 2020 ONCA 159, at para. 39.

[^9]: R. v. Sahdev, 2017 ONCA 900, 356 C.C.C. (3d), at para. 49.

As noted earlier, the context of these allegations is the Applicant’s membership in the RCAF pipe and drum band. All the complainants were also associated in some fashion with this band. All the incidents alleged took place during band events or social events involving the band members.

The actions complained of are similar, but not the same – kissing or touching of the legs or buttocks. It is important to note that ‘similarity’ does not mean identical. Differences are to be expected. However, in the present case, the allegations are similar in several ways. They are all at the same level of seriousness. Apart from the kiss, the allegations are also relatively non- intrusive. None of these observations should be viewed as diminishing the feeling of violation the complainants would have experienced.

Additionally, they all occur within the same context – band activities. And there is a similarity in the approach made by the Applicant.

The Applicant also pointed to the fact that the alleged incidents do not occur in the same location. Two of the allegations alleged occur in the United States. Crown argued – and I agree – there is nothing otherwise important about that fact. The more important factor is that all the allegations involved social interactions within the RCAF pipe and drum band.

While in my view, based on the evidence available to me at this stage of the proceedings, the similar fact application is not overwhelming, it is also not an exercise in futility. There are sufficient contextual similarities such that a judge could find that the test in R. v. Handy is met.[^10]

The primary defence in this case, as outlined by defence counsel, is that the acts as alleged never occurred. The issue in question is therefore the actus reus and the context and similarity in approach may assist in the determination of that question. Consequently, I find there is a legal and factual nexus.

Defence indicated that the defence with respect to the first count may be honest, but mistaken belief in communicated consent. He stated the Applicant may testify with respect to that

[^10]: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.

allegation but not with respect to the other counts. Defence conceded that this consideration should be given less weight in the overall analysis as the decision whether to testify or not is one that is subject to change depending on the evidence adduced. I agree.

There is a risk of the jury engaging in propensity reasoning in a case such as this. As Charron, J. noted in R. v. B.(L.),

…propensity reasoning in and of itself is not prohibited. Indeed, it is usually inevitable, given the nature of the evidence and the reason for its admission…

It is propensity reasoning that is based solely on the general bad character of the accused, as revealed though this evidence of discreditable conduct, which is prohibited.[^11]

Courts accept that prejudice may occur when similar acts are tried together. However, the issue is whether that prejudice can be minimized by a limiting instruction or whether the jury will inevitably engage in reasoning based on general bad character despite any limiting instruction. I do not believe that in the present case, the possible prejudice is such that it cannot be dealt with, with a limiting instruction.

In coming to that conclusion, I note that none of the counts is significantly more serious than the other. While there is little overlap in the evidence, running four separate trials with many of the same peripheral witnesses is not an efficient use of court resources. Furthermore, setting dates for four trials will inevitably cause significant delay. Even if Defence re-elects to judge alone trials, considerable delay will still occur. Defence has indicated the Applicant would waive his right to trial within a reasonable time. However, that right also involves the right of involved parties to have the matter heard within a reasonable time.

[^11]: R. v. B.(L.) (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35 (C.A.), at paras. 45-46.

Consequently, having balanced the competing interests outlined by the Applicant and the Crown, I find that the Applicant has failed to prove on a balance of probabilities that severance is required to ensure a fair trial. The trial judge will have to craft instructions to minimize any potential prejudice.

Released: December 2, 2022

The Honourable Madam Justice Julianne Parfett

COURT FILE NO.: CR-21-30470

DATE: 2022/12/02

ONTARIO SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

ROBERT WALLER

Defendant

REASONS FOR DECISION

Parfett J.

Released: December 2, 2022