minicounsel

CITATION: R. v. T.G., 2024 ONSC 6554

COURT FILE NO.: CR-23-122

DATE: 2024/11/25

BETWEEN:

HIS MAJESTY THE KING

Respondent

– and –

T.G.

Applicant

A. Agich, for the Respondent

I. Bingham, for the Applicant

HEARD: September 19, 2024

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, no information that could identify the person(s) described in this judgment as the complainants may be published, broadcast, or transmitted in any manner. These reasons have been anonymized to permit their publication.

REASONS FOR DECISION

Ellies J.

OVERVIEW

1T.G. is accused on a single indictment of committing sexual offences, including sexual assault, against three complainants. Two of the complainants are his sisters. They allege that they were sexually assaulted by the accused between 1983 and 1996. The third complainant is the accused’s granddaughter. She alleges she was sexually assaulted by the accused between 2012 and 2020.

2The accused applies under s. 591(3) of the Criminal Code, R.S.C. 1985, c. C-46, for an order severing the charges into three separate trials or, in the alternative, into two trials, one relating to the older charges and one relating to the newer ones.

3For the following reasons, the application is dismissed.

BACKGROUND

4The accused is now 70 years of age.

5In April 2022, his granddaughter, J.M., and his daughter, T.M. (J.M.’s mother) attended a police station in New Brunswick to report that the accused had sexually assaulted J.M. According to the Crown, although T.M. did provide a statement to the police at that time, she did not disclose that she herself had been assaulted. Instead, one month later, T.M. advised the police that she had also been sexually assaulted by the accused and that her sister, C.R., might also have been a victim.

6About one week later, C.R. provided a statement to the police that she had also been sexually assaulted by the accused. T.M. provided a statement to the same effect a few days after that.

The Allegations

7The details of the allegations are relevant because they bear on several of the factors the court must consider, as I will set out later in these reasons. Unfortunately, I have only an outline of those details.

J.M.’s Allegations

8J.M. alleges that, when she was seven years old, the accused would bring her into his bedroom, pull off his pants, and make her touch his penis. She alleges that, on two such occasions, the accused also undressed her. J.M. alleges that on one of those occasions, the accused also licked her ear.

9Although it is not clear from the materials on which occasion or how many times it happened, J.M. recalls that the accused rubbed his penis on her stomach and vagina during these assaults in the bedroom.

10J.M. also alleges that, when she was nine years old and they were in a pool house, the accused took off her pants, bent her down, and rubbed his penis on her buttocks.

11The most recent of J.M.’s allegations occurred when she was in middle school and involved the accused massaging her buttocks while she was laying down.

12J.M. alleges that the accused told her not to tell anybody, otherwise he would hurt or kill others, and it would wreck the family.

C.R.’s Allegations

13C.R. alleges that she was sexually assaulted in increasingly invasive ways.

14C.R. alleges that, when she was in grade one, the accused would rub her buttocks at nap time. She alleges that, when she was in grades two or three, the accused took out his penis and made her rub it. She also alleges that the accused would make her lie down on a bed, pull her pants down, and rub her vagina.

15C.R. further alleges that, when she was in grade seven or eight, the accused took his underwear off and rubbed her up and down on his body until he ejaculated. She also recalls an incident during which the accused came into the bedroom she shared with her sister and touched T.M. while T.M. was in the top bunk.

T.M.’s Allegations

16T.M. alleges that the accused also began to assault her when she was in grade one, or thereabouts. She alleges that the accused made her take off her clothes, touched her vagina, rubbed her with his penis, and touched her all over.

17T.M. also alleges that the accused inserted his fingers and the tip of his penis into her vagina. On other occasions, she says that he would rub his penis on her vagina and ejaculate on her. On others, he would rub his penis on her lips and face, trying to get her to give him oral sex.

18T.M. alleges that the accused would make her sit on him while she was wearing a nightgown and make her rub back and forth until he ejaculated.

19T.M. also says that the accused would come into her bedroom at night and digitally penetrate her. He would also pin her down at times and insert his tongue into her vagina.

20Finally, T.M. alleges that the accused told her that, if she told anybody about what he was doing, she would be disowned by the family and never be loved by anyone again.

ISSUES

21The accused submits that the interests of justice weigh in favour of either severing the charges involving each complainant into a separate trial or, in the alternative, severing the counts involving J.M. from the counts involving C.R. and T.M.

ANALYSIS

22Under s. 591(1) of the Criminal Code, the Crown has wide latitude to join counts in an indictment: R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 1. Trying an accused on more than one offence or set of offences on one indictment has the potential to save time and deliver justice in a cost-effective way. However, joining such counts runs the risk that evidence admissible on some counts will influence the verdict on unrelated counts: Last, at para. 16. For that reason, s. 591(3) of the Criminal Code gives the court broad discretion to sever counts “where it is satisfied that the interests of justice so require”. The onus of showing that a severance is required in the interests of justice is on the accused, who must satisfy the court on a balance of probabilities: R. v. Jeanvenne, 2010 ONCA 706, at para. 26.

23In Last, at para. 18, the Supreme Court of Canada provided the following helpful non-exhaustive list of factors that courts can consider when determining whether the interests of justice require that counts be severed where there is a single accused:

(a) the general prejudice to the accused by trying the counts together;

(b) the legal and factual nexus between the counts;

(d) whether the accused intends to testify on some counts, but not on others;

(e) the possibility of inconsistent verdicts if the counts are severed;

(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; and

(i) the potential prejudice to the accused with respect to the right to be tried within a reasonable time.

24The court is required to consider the cumulative effect of these factors: Last, at para. 44.

25Counsel have based their submissions on the list of factors set out above and I propose to do the same in my analysis before returning to consider the factors as a whole.

General Prejudice to the Accused

26As mentioned earlier, trying different sets of offences in one indictment gives rise to the risk that evidence on some counts will influence the verdict on unrelated counts. This risk arises from two types of prejudice: “reasoning” prejudice and “moral” prejudice: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31. Reasoning prejudice refers to the risk that a trier of fact will place unjustified weight on evidence relating to the offence in question because of the presence of evidence relating to another offence; moral prejudice refers to the risk that the trier of fact will use the evidence on one count as propensity evidence in support of another: Handy, at para, 31.

27The accused concedes that the risk of either type of prejudice is significantly attenuated by the fact that this case will be tried by a judge alone and not by a jury: R. v. M. (J.), 2010 ONCA 117, at para. 88; R. v Norris, 2020 ONCA 847, at para. 24. However, on behalf of his client, Mr. Bingham submits that there is still a possibility of “credibility cross-pollination”: Last, at para. 44.

28That may be true. However, unlike the situation in Last, as I will develop in the analysis that follows, there are compelling countervailing reasons for having a joint trial.

The Legal and Factual Nexus

29The concept of legal nexus refers to whether there are substantially overlapping transactions or essential elements in common as between counts, so as to give rise to the risk of inconsistent verdicts or the possible application of the principle of res judicata if the counts are severed: R. v. Ticknovich, 2003 ABQB 597, at para. 70.

30Neither the Crown nor the accused contend that there is any legal nexus between the counts. I agree.

31The Crown submits that there is a factual nexus relating to the substance of the historic allegations of C.R. and T.M., which I will call the “sisters’ allegations”, and the manner in which they came to make those allegations. I agree with this submission, as well.

32As the allegations relate to the sisters, C.R. was a witness to T.M. being touched. C.R.’s evidence in this regard overlaps with that of T.M. As the allegations relate to J.M., which I will refer to as the “granddaughter’s allegations”, T.M.’s evidence as to how J.M.’s allegations came to the attention of the police is potentially admissible as narrative. The evidence of how J.M.’s allegations came to the attention of the police is also potentially admissible as narrative evidence relating to how the sisters’ allegations came to be made.

33The factual nexus between the counts, therefore, weighs in favour of trying them together, especially as the evidence relates to the counts involving the sisters’ allegations.

The Complexity of the Evidence

34The parties agree that there is no particular complexity to the evidence associated with any count. Again, I agree.

35Therefore, this factor is neutral.

Whether the Accused Intends to Testify on Some Counts, But Not on Others

36On behalf of the accused, Mr. Bingham advises that there is a “very real possibility” that his client will testify on some counts but not on others. As I understand Mr. Bingham’s submissions, Mr. G. might not wish to testify regarding the sisters’ allegations because of the effect of the passage of time on the strength of the Crown’s case.

37Of course, an accused cannot be forced to testify at his own trial. Therefore, he cannot be held to his stated intention to testify. For that reason, in Last, the Supreme Court of Canada held that an accused’s stated intention on a severance application to testify on some counts but not on others must be both subjectively and objectively rational. An objectively rational basis for the accused’s stated intention gives the court some degree of confidence that the accused's stated intention will become reality at the trial. In Last, the court held, at para. 26:

The burden is on the accused to provide the trial judge with sufficient information to convey that, objectively there is substance to his testimonial intention.

38I accept that the accused’s intention to testify on the granddaughter’s but not on the sisters’ allegations has both a subjective and an objective rationale. However, as the Supreme Court held in Last, at para. 27:

An accused’s stated and objectively justifiable intention to testify on some but not all counts is not necessarily detTerminative of a severance application. It can be counterbalanced by other circumstances that the judge finds may prevent the accused from testifying or be outweighed by factors that demonstrate that the interests of justice require a joint trial.

39As I will come to, there are several other factors that weigh significantly in favour of a joint trial.

The Possibility of Inconsistent Verdicts

40Neither party submits that this is a relevant factor in this case. Again, I agree.

Avoiding a Multiplicity of Proceedings

41The accused submits that this factor is neutral because there is little overlap in the evidence between witnesses and, therefore, roughly the same amount of time would be spent in separate trials as would be spent on one trial. I am unable to agree.

42I have already explained that the evidence of the witnesses overlaps as it relates to how the allegations of the complainants came to light and as it relates to T.M.’s allegations of being touched by the accused while she was in bed. On this basis alone, this factor weighs in favour of joinder.

43I turn now to how the evidence might overlap in other ways.

The Use of Similar Fact Evidence at Trial

44The possibility that the evidence in support of one or more counts might be admissible in support of one or more other counts is a significant factor in favour of keeping the counts together: Last, at para. 33.

45In response to the accused’s application to sever, the Crown filed a similar fact application (“SFA”). I do not understand the Crown to be asking for a ruling on the SFA at this stage. Nor would I be inclined to give one in the absence of more evidence or information about the evidence: Last, at para. 34. The question at this stage is whether the anticipated SFA has some possibility of success or whether it is reasonable to consider that it might succeed: R. v. R.C., 2020 ONCA 159, citing R. v. Blacklaws, 2012 BCCA 217, at paras. 43-44, per Finch C.J.B.C. (dissenting), aff’d. at 2013 SCC 8, [2013] 1 S.C.R. 403 (SCC).

46Notwithstanding Mr. Bingham’s able argument to the contrary, I believe that there are sufficient similarities between the evidence of the three complainants to give the SFA a real possibility of success. Those similarities include the ages of the complainants at the time the sexual touching began (all pre-pubescent), the fact that the accused was in a position of trust in relation to all three complainants, and the fact that the accused either rubbed himself on the complainants or rubbed the complainants on him as one means of satisfying himself. Another similarity, although not uniform throughout all three sets of allegations, is the evidence of J.M. and T.M. that the accused threatened their relationships with the family if they told anyone about his conduct.

47On behalf of the accused, Mr. Bingham submits that the SFA is not likely to succeed given the possibility of collusion among the complainants. Although I do not have the transcript before me, Mr. Bingham read from the cross-examination of J.M. at the preliminary hearing to the effect that the accused had “groomed” both her mother and her aunt. While I agree that the fact that J.M. would know this shows that she has acquired knowledge of the allegations of T.M. and C.R., it also seems from the materials I have before me that J.M. told her mother about the alleged abuse before J.M. learned about the allegations of T.M. and C.R.

48It must be borne in mind that, although the onus is on the Crown in an SFA, the onus is on the accused in this severance application: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 52; Last, at para. 33. At this stage, given the similarities to which I have referred, I am not persuaded that the SFA has no chance of success.

49Therefore, this factor weighs rather strongly in favour of joinder.

The Length of the Trial

50The accused submits that this factor is a neutral one in the analysis. Again, I am unable to agree.

51At present, the trial is scheduled to take four days. If a severance was granted and the evidence that I view as overlapping has to be called on more than one occasion, the trials will take longer in total, although only marginally.

52As such, this factor weighs slightly in favour of joinder.

The Potential Prejudice to the Accused’s Right to be Tried Within a Reasonable Time

53As anyone who has appeared in North Bay’s criminal assignment court over the past four years or so knows, we have a very significant backlog of criminal cases. This backlog began because of the COVID-19 pandemic, but has been perpetuated by an unprecedented rise in the number of criminal charges laid in our region since 2022 and the lack of judicial resources needed to meet that increase: https://www.ontariocourts.ca/scj/news/annual-reports/2019-2023-EN.pdf.

54Our criminal sittings for 2025 were filled in January and February of 2024. We will not be able to schedule any further criminal jury trials until January 2025, once our 2026 sittings are set. While it is easier to schedule a judge-alone trial of less than five days, as the trials would be in this case, there would still be a significant delay. As of November 15, 2024, we had only 3.5 judge days left for 2025. Therefore, it is a certainty that the accused’s right to be tried within a reasonable time under s. 11(b) of the Charter of Rights and Freedoms would be negatively impacted if there was a severance.

55Mr. Bingham advises that his client is prepared to waive his s. 11(b) rights with respect to a second or third trial on the charges presently included on the indictment. However, although it does not rise to the level of a constitutional right, society in general, and the complainants in particular, also have an interest in a timely trial of the allegations in this case: R. v Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 22-28.

56For this reason, I do not place much weight on the accused’s willingness to waive his s. 11(b) rights in my analysis on the issue of severance.

CONCLUSION

57Having considered all of these factors cumulatively, I am not persuaded that a severance is required in the interests of justice in this case. The admissibility of C.R.’s evidence relating to the abuse of T.M., the potential admissibility of T.M.’s and J.M.’s evidence as narrative, and the possibility of a successful SFA making the evidence of each complainant admissible in support of the evidence of the others all weigh strongly in favour of trying the allegations together.

58For that reason, the accused’s application is dismissed.

M.G. Ellies J.

Released: November 25, 2024