COURT FILE NO.: CRIM J(P) 829/21
DATE: 2022-09-28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: His Majesty the King v. M.P.R.
BEFORE: Stribopoulos J.
COUNSEL: Ms. S. Scully, for the Crown / Respondent
Mr. N. Jackson, for the Accused / Applicant
HEARD: September 27, 2022
The court issued an order under section 486.4(1) of the Criminal Code prohibiting the publishing, broadcast, or transmission of any information that could serve to identify the complainant in this case. This version of the court’s endorsement has been modified to comply what that order.
ENDORSEMENT
Introduction
[1] Mr. R brought an application for an order under section 591(3)(a) of the Criminal Code, R.S.C., 1985, c. C-46, to sever some of the charges he faces and have them tried separately.
[2] The indictment charges Mr. R with five offences. The complainant, LS, is the alleged victim concerning each. Mr. R and Ms. S were in a romantic relationship from August 2018 until February 2019. The allegations span the last two weeks of their relationship and the events over the ten days following their breakup.
[3] Some details concerning the charges and allegations will assist in understanding the parties' competing positions on the severance application.
The Charges and Allegations
[4] Mr. R faces charges of sexually assaulting and assaulting Ms. S on February 15, 2019, respectively, counts one and two. These charges involve allegations that he forced vaginal, anal, and oral intercourse on Ms. S that day and that he also slapped her on the face.
[5] Ms. S further alleges that on February 24, 2019, a disagreement arose between her and Mr. R while they were attending a party, precipitating an argument when they returned to his residence. She alleges that the conflict culminated in Mr. R breaking items in his home, smashing her phone, and slapping her. These allegations are the basis for the charges of assault and mischief in counts three and four.
[6] Ms. S reports that she finally ended the relationship on February 28, 2019. However, after that, she alleges Mr. R began engaging in threatening and menacing behaviour. That included threatening to distribute intimate images he had of her, repeatedly calling, leaving voice messages, texting, suggesting he would come to her workplace, and attending the apartment building where she lived. Finally, after she sent him an e-mail at the suggestion of the police, asking Mr. R to stop, he sent three separate e-mails in reply. The allegations concerning Mr. R's behaviour after the breakup provide the basis for the criminal harassment charge in count five.
Positions of the Parties
[7] Mr. R seeks an order severing the charges of sexual assault and assault (counts one and two) from the remaining counts. He wants those charges to proceed to trial separately because, as defence counsel Mr. Jackson submits, there is a danger the jury will use the evidence concerning the criminal harassment allegations to engage in prohibited propensity reasoning. In particular, by using the complainant's evidence concerning alleged acts of unwanted and menacing contact by the accused to reason improperly that he is the type of person who does not take “no” for an answer. In short, the very kind of person predisposed to commit a sexual assault.
[8] The Crown opposes the application. Ms. Scully, on behalf of the Crown, emphasizes that the allegations all involve the same complainant and span a relatively short period. Beyond that, she argues, the allegations are inextricably interwoven. The sexual assault and assault alleged on February 15, 2019, along with the assault and mischief alleged on February 24, 2019, help explain why the complainant ended the relationship and found Mr. R's conduct between February 28, 2019, and March 8, 2019, so menacing. Finally, they also help to explain why the complainant only went to the police concerning all the allegations when she did.
Law and Analysis
[9] Section 591(3)(a) of the Criminal Code confers authority on the court to sever counts “where it is satisfied that the interests of justice so require.” Ultimately, that determination involves weighing the risk of prejudice to the accused and the public interest in a single trial: see R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 17. Various factors have come to be recognized as relevant when making this determination, which the Supreme Court concisely summarized in Last, at para. 18:
The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a particular case, avoiding an injustice. Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co‑accused persons: ... (citations omitted)
[10] In my view, to the extent that some of these factors are relevant to the circumstances of Mr. R's application, they overwhelmingly favour denying his request. I shall briefly explain why I have come to that conclusion.
[11] To begin, I accept that there is the risk of prejudice to Mr. R of having all the counts charged tried together. To be sure, that danger is inherent whenever an accused faces multiple charges involving different allegations because that necessarily means the jury will learn at the same trial of separate allegations of misconduct by the accused. And, further, I accept that a particular manifestation of that risk, in this case, is that jurors could reason, if left to their own devices, that if Mr. R criminally harassed Ms. S, he is the type of person who would commit a sexual assault and assault.
[12] However, in my view, there is no reason to believe that the standard limiting instruction given in cases involving multi-count indictments would not be adequate to ameliorate these risks. First, the trial judge will instruct the jury to consider their verdict on each count separately. Further, jurors will receive a specific caution that even if the Crown has proven that Mr. R committed an offence charged in one count, they are not to reason he is more likely to have committed an offence charged in another. Ultimately, I do not believe the criminal harassment allegations are so incendiary that they are likely to provoke the jury's hostility to such an extent that a limiting instruction would not have the desired effect.
[13] Each of the other relevant factors unquestionably points away from granting the severance application.
[14] First, there is a significant legal and factual nexus between each charge. All involve the very same complainant, Ms. S. They span the last two weeks of her relationship with Mr. R and the ten days following their breakup.
[15] According to Ms. S, an argument concerning Mr. R “raping” her precipitated their breakup. And in some of the unwanted recorded telephone messages left by Mr. R after the relationship ended, the Crown contends that he admitted that he raped Ms. S but advised that he did not like the word “rapist.” He reportedly said, “I guess I'm begging you not to just call me that again. Like I, I, I know it's true. I know I did it, and I know I hurt you, but please don't call me that again.” He then reiterated his earlier threat, warning Ms. S that if she told other people that he is a rapist, “if that comes around to me, I will have no hesitation ... but use all the videos of you and show it to fucking everyone you know.” As a result, there is an unavoidable interwovenness to the evidence concerning the rape and criminal harassment allegations.
[16] Further, without knowledge of the alleged sexual assault on February 15, 2019, there is a real danger that the jury might not fully appreciate why Mr. R’s behaviour in the aftermath of the breakup was so frightening to Ms. S.
[17] Second, this is not a case where the evidence concerning the different counts is complex. There is no risk of the jury becoming confused by the evidence concerning the various counts and being unable to judge the case against Mr. R on each count fairly. On the contrary, severance would bring that risk by requiring the jury to evaluate the allegations without the context necessary to make sense of the relationship, its breakdown, and its aftermath. The various charges and allegations are closely intertwined. As a result, severance would tend to decontextualize the relevant events and not assist the jury in properly assessing what will likely be the critical issue at trial, credibility.
[18] Third, this is not a situation where an accused has suggested that he wants to testify concerning some of the charges but not others. That can be an important factor weighing in favour of ordering the severance of counts. However, it is not a relevant factor in this case and, therefore, it carries no weight on this application.
[19] Fourth, whether or not the court grants the application for severance, the parties agree that there is no potential for inconsistent verdicts in this case. Ultimately, the jury could return guilty verdicts on none, some, or all the counts, at a single or separate trials.
[20] Fifth, the desire to avoid multiple proceedings weighs heavily against granting the application. To lessen the impact of that consideration, Mr. Jackson suggested that the charges relating to February 15, 2019, could proceed to trial before a jury. He advised that Mr. R would be content to have evidence from the first trial admitted at a judge-alone trial on the remaining counts. And he also suggested that the second trial could proceed immediately after the first before the same judge.
[21] Although this proposal is innovative, to be sure, it would mean that Ms. S would be required to prepare to testify and then actually testify twice. Further, it is not without the potential for scheduling complications should the jury trial run long, as they often do. For example, suppose the judge who presided over the jury trial does not continue to be available. In that case, there could be an inordinate delay in the commencement of the second trial. Assigning a different judge, at that point, would not be an efficient solution as it would mean yet another judge would have to absorb the same evidence heard at the first trial.
[22] Severance would necessarily mean two trials rather than just one. In a jurisdiction as busy as Brampton, especially as this court works through the considerable backlog of cases created by the Covid-19 pandemic, that is no small matter. At this point, avoiding multiple proceedings is a factor that weighs heavily against granting Mr. R’s severance application.
[23] Finally, the Crown has suggested that it may bring a so-called “D.S.F” application, to permit the jury to consider the evidence from one count in deciding the case against the accused on another. I refrain from expressing a view on the merits of such an application. However, I remind the Crown that although the trial judge will direct the jury not to consider the evidence concerning one count as proof that Mr. R committed the offence charged in another, that instruction does not preclude the jury from using credibility determinations across counts: see R. v. P.E.C., 2005 SCC 19, [2005] 1 S.C.R. 290.
[24] In the end, as mentioned before, this is undoubtedly a case that will turn on the credibility of the complainant’s evidence about the events surrounding the last two-weeks of her relationship with Mr. R and its aftermath. In my view, that determination is best made by a jury that has the benefit of hearing the entirety of her evidence concerning all her allegations at a single trial.
Conclusion
[25] For all these reasons, I have concluded that it would be contrary to the interests of justice to grant Mr. R’s application for severance.
[26] Accordingly, the application is dismissed.
Signed: “J. Stribopoulos J.”
Released: September 28, 2022