COURT FILE NO.: CR-19-10000046-0000

DATE: 20220207

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. EZE, Gregory Obi

BEFORE: J. R. Presser J.

COUNSEL: David Parry, for the Crown Alonzo Abbey, for Mr. Eze

HEARD: February 4, 2022

RESTRICTION ON PUBLICATION

An order has been made pursuant to s. 486.4(1) of the Criminal Code directing that any information that could identify the complainant shall not be published in any document or transmitted in any way. This endorsement complies with that order and may be published.

ENDORSEMENT

[1] Gregory Obi Eze was charged with two counts of sexually assaulting J. K. He testified and admitted that he committed two common assaults on J. K. He denied that these assaults were sexual in nature or that they were committed for a sexual purpose.

[2] Mr. Eze was tried before me, without a jury, on August 30, 31, 2021; September 1, 2, 2021; and October 21, 2021. Because Mr. Eze admitted that he committed two common assaults, the only issue for my determination at trial was whether the Crown had proven that the two assaults were sexual in nature beyond a reasonable doubt.

[3] For reasons given in R. v. Eze, 2022 ONSC 277 ("Eze #1"), I concluded that the Crown had proven that both assaults were sexual in nature beyond a reasonable doubt. I found Mr. Eze guilty of both sexual assaults. But I did not enter convictions at that point. Instead, I asked counsel to make further submissions on the issue of whether convictions should be entered on both counts, or whether one conviction should be stayed under the rule prohibiting multiple convictions for the same act established in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 and R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480.

[4] It was my conclusion in Eze #1 at para. 116, in considering the admissibility of evidence across counts, that the two assaults charged constituted a single transaction:

In this case, the two assaults charged both occurred within a very short time, approximately two minutes in total. They occurred in rapid succession, between the same two parties, in different parts of the same place (the PATH level of the TD Centre), with virtually uninterrupted contact between the two parties for the entire duration. They could be characterized as forming part of a continuing course or pattern of conduct, in that there are no major intervening events or passage of time between them. And each alleged sexual assault is substantially similar to the other. On both occasions, Mr. Eze is alleged to have forced J. K. to the ground and forcibly kept her down while he used his hands to pull down her pants and touch her private parts, or attempted to do so. For these reasons, I conclude that the two assaults charged do constitute a single transaction. The evidence on each count is therefore admissible in relation to the other without resort to a formal application for admission of cross-count similar fact evidence.

[5] However, at para. 115, I declined to consider at that point whether entering convictions for both counts of sexual assault would violate the Kienapple rule against multiple convictions. It was my view that this was a separate issue for determination with the benefit of full argument from counsel.

[6] The case returned before me in zoom court on February 4, 2022 for counsel to address this issue. At that time, counsel advised that both parties agreed that the second count of sexual assault should be conditionally stayed under the Kienapple rule. In particular, the Crown indicated that its decision to consent to a conditional stay of conviction on the second count was influenced by my holding in Eze #1 that the two counts constituted a single transaction. I note also that at trial the Crown took the position that the two assaults arose from a single transaction when it submitted that I could consider the evidence on each count across counts (see Eze #1, paras. 103, 107).

[7] In addition to considering the joint position of the parties, I also considered and instructed myself as to the legal requirements for a count to be conditionally stayed pursuant to the Kienapple rule. I am satisfied that in all the circumstances of this case, there is both a factual nexus (Prince, para. 20) and a legal nexus (Prince, paras. 22 – 24) between the two counts of sexual assault. There is a relationship of sufficient proximity here as between the facts and as between the offences which form the basis of the two charges that entering two separate convictions for two separate sexual assaults would offend the rule against multiple convictions.

[8] For all of the foregoing reasons, conviction on count #2 (the second count of sexual assault) on the indictment is conditionally stayed pursuant to the rule in Kienapple. A conviction is entered on count #1 (the first count of sexual assault).

J. R. Presser J.

Date: February 7, 2022