R. v. Cooper, 2011 ABQB 316

Court of Queen ’ s Bench of Alberta Citation: R. v. Cooper, 2011 ABQB 316 Date: 20110510 Docket: 110103033Q1 Registry: Edmonton Between: Her Majesty the Queen Crown (Respondent) - and - Bruce Alan Cooper Accused (Applicant) Restriction on Publication: By Court Order, information that may identify the persons described in this judgment as L.J, J.L, and B.N. may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.4 _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________

I. Introduction [ 1 ] On January 21, 2011, the Crown charged Bruce Alan Cooper [the “Applicant”] by direct indictment with the following 12 offences under the Criminal Code , R.S.C. 1985, c.

C-46 [“ Criminal Code ”]: 1. kidnapping of L.J. contrary to Criminal Code s. 279(1.1)(b); 2. assault of L.J. contrary to Criminal Code s. 266; 3. sexual assault of L.J. contrary to Criminal Code s. 272(2)(b); 4. unlawful confinement of L.J. contrary to Criminal Code s 279(2); 5. attempting to choke, strangle, or suffocate L.J. contrary to Criminal Code s. 246(a); 6. assault causing bodily harm of L.J. contrary to Criminal Code s. 267(b); 7. threatening to cause bodily harm to L.J. while committing a sexual assault on L.J. contrary to Criminal Code s. 272(2)(b); 8. unlawful confinement of J.L. contrary to Criminal Code s 279(2); 9. attempting to choke, strangle, or suffocate J.L. contrary to Criminal Code s. 246(a); 10. threatening to cause death or bodily harm to J.L. contrary to Criminal Code s. 264.1(1)(a); 11. sexual assault of J.L. contrary to Criminal Code s. 271; and 12. sexual assault of B.N. contrary to Criminal Code s. 271.

Each charge set forth in the indictment is referred to as a “count.” [ 2 ] The Applicant’s trial on these charges is scheduled to begin in the second half of June, 2011. He has elected to be tried by a judge alone. [ 3 ] On May 5, 2011, the Applicant asked this Court to: 1. order the Crown to provide him with transcripts of police interviews with the complainants;

2. adjourn the severance application until he received Crown evidence from a kind of DNA testing called “Y-STR analysis” (the “DNA Evidence”); and 3. sever the counts that involve the three different complainants pursuant to Criminal Code s. 591(3), if hearing that application was appropriate following this Court’s ruling on the second issue. [ 4 ] At the May 2, 2011 hearing, this Court decided not to require the Crown provide the transcripts that the Applicant requested, though the Crown indicated it had voluntarily taken steps to prepare and provide 2 of the 3 transcripts in question. [ 5 ] The parties explained to this Court that the DNA Evidence could only interrelate the counts that involve J.L. and B.N.

Thus, the DNA Evidence was not relevant to whether a joint trial is appropriate for the counts involving L.J. and J.L. Therefore, this Court ordered a partial adjournment of the application for separate trials, and proceeded to hear arguments on whether the counts that involve L.J. and J.L. should be heard together, or in separate trials. [ 6 ] The remaining part of the application for separate trials is scheduled for May 12, 2011.

By that point, the Crown believes the DNA Evidence will be available and the Applicant will be able to proceed with full knowledge of the case against him; at least as it relates to the DNA evidence. The Applicant indicated that he may abandon his application for separate trials of J.L. and B.N. after he receives and reviews the DNA Evidence. [ 7 ] The Applicant argued that a bifurcated severance application is not a correct and proper procedure, as it meant that he was forced to argue a part of that application without full knowledge of whether the DNA Evidence was or was not inculpatory.

This Court rejects that argument, as it intends not to accept or hear any argument at all concerning B.N., until the DNA Evidence is available. The DNA Evidence relates only to B.N. [ 8 ] This decision relates only to this Court’s conclusion on the application for separate trials of counts 1-7, and 8-11. The Applicant applies, pursuant to Criminal Code s. 591(3), to have this Court sever these count sets.

In other words, he asks this Court to order that he be tried separately for the charges that involve L.J. and J.L. [ 9 ] The Crown opposes the Applicant’s motion and argues that the interests of justice require these charges be tried together in a single trial. II. Background [ 10 ] A brief description of the Crown’s theory of the offences involving L.J. and J.L., and the Applicant’s alleged involvement in those offences, will be helpful to evaluate whether severance is appropriate. The Applicant also provided further information that he says will emerge at trial.

It should be noted that for the purposes of this application, neither the Crown nor the Applicant have presented evidence to this Court. This Court has, at best, theories and arguments as to how this matter will unfold as the trial progresses. A. L.J. - Counts 1-7 [ 11 ] The Crown’s theory is that on August 20, 2009, the Applicant picked up L.J. in downtown Edmonton. He offered her a ride. She asked him to drive her to the Women’s Emergency Accommodation Centre Shelter on Jasper Avenue. Instead, the Applicant allegedly drove her south in Edmonton. The Applicant allegedly refused to let L.J. out from the truck.

He asked her if she was a prostitute, which she denied. [ 12 ] The ride ended in an industrial area. The Applicant allegedly told L.J. to accompany him into a building. When she refused, the Applicant allegedly punched her in the head, and forced her to have vaginal-penile intercourse. The Applicant threatened L.J. by

saying, “I’ll take you to where I took your friends.” [ 13 ] The Applicant allegedly pulled L.J. from the truck to a field, and removed her clothing. At that point, she escaped from the Applicant, but ran into a pile of barbed wire. The Applicant dragged her from the barbed wire. L.J. feared for her life, to the point where she pleaded with the Applicant to leave her body where it could be found.

The Applicant allegedly choked L.J., again forced her engage in vaginal intercourse with him, and told her “You’re dead, bitch.” L.J. then escaped a second time, and fled to a trucking yard where she concealed herself until the Applicant left. [ 14 ] L.J. described her attacker as male, over six-feet tall, with red-grey hair, a mustache and beard. She estimated his age as 45-55 years, and indicated he wore thick metal-rimmed glasses that magnified his eyes. He smelled of tobacco, oil and aftershave.

L.J. says the truck in which she was abducted was an older blue half-ton model with a regular cab, a burgundy interior, running boards, a silver grill, back window louvers, and was messy, with papers thrown about the interior. [ 15 ] The Applicant works at Maple Leaf Metals, whose yard is where L.J. escaped and concealed herself. The Applicant’s truck was also linked via GPS information to that location outside of work hours. [ 16 ] The Applicant indicated that L.J. was unable, in a police lineup, to identify the Applicant as her attacker or identify the Applicant’s truck as the vehicle in which she was abducted.

No DNA evidence linked the Applicant to the person who allegedly attacked and sexually assaulted L.J. B. J.L. - Counts 8-11 [ 17 ] The Crown’s theory was that on September 20, 2009, complainant J.L. was leaving the York Hotel in downtown Edmonton and the Applicant allegedly offered her a ride. J.L. asked the Applicant to drive her to her cousin’s residence. Instead he locked the truck doors and drove south to an industrial area. This was near Maple Leaf Metals. [ 18 ] The Applicant allegedly pulled J.L. from the truck, and took her to a mattress in some shrubs.

He asked J.L. if she was a drug user or prostitute, which J.L. denied. The Applicant allegedly choked her and she and temporarily lost consciousness. When she recovered she was on the mattress with the Applicant on top of her. He said “I’ve killed girls before.” [ 19 ] J.L. resisted and was able to escape. She ran into some nearby trees and when the Applicant followed her, she hit him with a tree branch. The Applicant apologized and persuaded J.L. to return to the mattress, where the Applicant gave her a blanket from his truck to keep her warm. The Applicant then drove away.

Forensic testing identified the Applicant’s DNA on that blanket. [ 20 ] J.L. described her assailant as five foot nine inches tall, white, 150 pounds, with light hair and a mustache and scruffy beard. He had grey eyes and wore oval glasses. The truck was described as an older Dodge or Ford flatbed model with a standard transmission, light blue with no markings, a regular cab, bucket seats, and a messy interior with papers. [ 21 ] The Applicant’s truck was recorded by a video camera outside the York Hotel on September 20, 2009, just after the same camera recorded J.L. leaving that location.

Police also observed the Applicant’s truck in that vicinity in the following month. [ 22 ] The Applicant indicated that J.L. was also unable, in a police lineup, to identify the Applicant as her attacker or the Applicant’s truck as the vehicle he was driving. III. The Law

[23] The parties agreed generally on the relevant legislation and legal principles. Criminal Code s. 591(1) gives the Crowndiscretion to group criminal charges against one or more accused. That authority is subject to a number of statutory and other limitations,some of which this Court will discuss in this section. [24] Criminal Code, s. 591(3)(

b) gives the court authority to order that co-accused be tried in separate proceedings. CriminalCode, s. 591(3)(

a) gives the Court authority to order that multiple charges against a single accused be addressed in different and separatetrials. The Applicant’s application relates to the latter scenario. [25] Like all legislation, courts must interpret the Criminal Code as a whole. E. A. Driedger in Construction of Statutes (2nd ed.1983) at 87 says, “the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniouslywith the scheme of the Act, the object of the Act, and the intention of Parliament.” See also Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 at para. 21, 154 D.L.R. (4th) 193 and most recently Ontario (Attorney General) v. Fraser, 2011 SCC 20,at para. 281. [26] Criminal Code s. 591(3)(

a) provides a broad, but conditional, authority on the court to order separate trial of two or morecharges: 591(3) The court may, where it is satisfied that the interests of justice so require, order (

a) that the accused ... be tried separately on one or more of the counts; … [Emphasis added.] [27] This authority continues from before a trial through to its conclusion: Criminal Code s. 591(4). The applicant has the onus ofproving that severance is appropriate on a balance of probabilities: R. v. Arp, (SCC), [1998] 3 S.C.R. 339 at para. 22,166 D.L.R. (4th) 296; R. v. Cross (1996), (QC CA), 112 C.C.C. (3d) 410 at para. 39 (Que. C.A.); R. B. (M.O.)(1998), 123 C.C.C. (3d) 270 at para. 26 (B.C.C.A.).

A decision to have two or more charges tried separately, or together, is in thepresiding trial judge’s discretion, and involves a multi-factoral analysis: R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333 at353-54, 86 C.C.C. (3d) 97; R. v. Last, 2009 SCC 45 at paras. 1, 14, [2009] 3 S.C.R. 146. [28] The question as to whether the interests of justice are served by charges against an accused being tried together or separatelyrequires a judge weigh and balance a range of considerations: Last at para. 17.

In Last at para. 18, Deschamps J. identified a number offactors that may relevant when a court considers whether it should sever counts in an indictment: 1. the general prejudice to the accused; 2. the legal and factual nexus between the counts; 3. the complexity of the evidence; 4. whether the accused intends to testify on one count but not another; 5. the possibility of inconsistent verdicts; 6. the desire to avoid a multiplicity of proceedings;

7. the use of similar fact evidence at trial; 8. the length of the trial having regard to the evidence to be called; 9. the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and 10. the existence of antagonistic defences as between co-accused persons. The final factor is not relevant for this particular application. [ 29 ] No factor is determinative. However, if an accused intends to testify on one count but not another, then that fact deserves significant weight: Last at para. 27 . IV. The Parties ’ Positions A.

Applicant ’s Submissions [ 30 ] The Applicant argues that he risks prejudice from a common trial of the L.J. and J.L. charges. This prejudice flows chiefly from the effect on the Applicant if he wishes to testify in relation to one complainant, but not the other. Here, the Applicant says that he may wish only to testify in relation to the L.J. counts, but not those that involve J.L. He argues that there is a very significant difference between those two sets of counts.

For example, he argues that physical evidence links the Applicant to J.L., namely, DNA on the blanket he allegedly provided to J.L. which he took from his truck, and the video recording of the Applicant’s vehicle at the York Hotel. Analogous evidence, he argues, does not exist with respect to the counts involving L.J. [ 31 ] The Applicant noted a strong resemblance between the present offence scenarios and those that the Supreme Court of Canada evaluated in Last . The counts that involve L.J. are not based on any physical evidence that links the Applicant and L.J.

The Applicant, he argues, could plausibly testify that he never had any interaction with L.J. or, alternatively, that their interactions had a very different character than what the Crown outlined. He calls this a “he said, she said” scenario. [ 32 ] On the other hand, the L.J. scenario is different from the J.L. counts, where the Applicant is linked via physical evidence to J.L. and the alleged offences. If the Applicant were to testify in relation to J.L. he would arguably face the much more difficult task of explaining how a blanket with his DNA ended up with J.L. and at the alleged crime scene.

The Applicant argues unfairness would occur if he were forced to face cross-examination on the J.L. blanket DNA evidence, when testifying on his own behalf in relation to the ‘weaker’ L.J. charges. [ 33 ] The Applicant argues the legal and factual nexus between the J.L. and L.J. counts is not particularly strong. These alleged offences did not take place as part of the same transaction or as part of a common enterprise, though the Applicant acknowledges that this is not the test for severance.

The identification evidence of both complainants is weak, though, of course, J.L. and the Applicant are linked by significant physical evidence, being the DNA evidence and the York Hotel recording. [ 34 ] The Crown indicated that if this Court were to sever the L.J. and J.L. counts, it would attempt to have evidence relating to the two complainants entered on a similar fact basis in both trials.

The Applicant argues that joining the counts for these two complainants allows the Crown to bypass the usual similar fact argument requirement, on which the Crown bears the onus. [ 35 ] The Applicant acknowledged that in a judge-alone proceeding, the complexity of evidence and legal arguments are of reduced

importance. Similarly, prohibited propensity-based reasoning is not an issue. While separate proceedings may be more convenient or expedient, that was not a basis on which to trump an accused person’s right to a fair trial. [ 36 ] Finally, the Applicant suggested that since this proceeding was initiated by direct indictment, he has been disadvantaged by the fact no preliminary inquiry occurred during which he could review the Crown’s case. B.

Crown Response [ 37 ] The Crown agreed that the J.L. and L.J. counts are best described as separate transactions, but that this is not the legal test on which a Court must evaluate the legal and factual nexus between two sets of alleged offences. The Crown disagreed that these two complainants were particularly unrelated. Factually, both sets of counts saw a woman picked up in a similar location, confined, taken to an area around Maple Leaf Metals, then sexually assaulted. Both sets of alleged offenses occurred in a one-month period. The abductor acted in a strikingly similar way in both instances.

Legally, both sets of counts involve the same offences, issues, and defences. [ 38 ] The Crown acknowledged it would seek to admit evidence from both the L.J. and J.L. trial in each other’s separate trials on a similar fact basis. That similar fact evidence would be relevant to many issues, including the assailant’s identity. [ 39 ] The Crown disagreed that a joint trial of the L.J. and J.L. counts would change the obligation on the Crown to prove similarities between the two complainants and the alleged offences, before those parallels have any probative weight as similar facts.

The only difference would be the point at which the Crown made its application. With separate trials the application would occur pre-trial, whereas in a joint trial the application would occur at the close of the Crown’s case. In either case, the standard for admission of that evidence would be the same. [ 40 ] Surveying the factors identified in Last , the Crown stresses that separate trials could lead to inconsistent results, and separate trials would inconvenience witnesses.

A single group of police officers investigated the attacks on L.J. and J.L., so separate trials would involve duplicate testimony by largely the same group of witnesses. Separate trials would be an inefficient use of Crown and court resources.

Further, the Applicant might re-elect to have jury trials if this court were to sever the charges. [ 41 ] Like the Applicant, the Crown saw limited relevance to the threat of propensity reasoning or trial complexity given this will be a judge-alone proceeding. [ 42 ] The Crown acknowledges that Canadian jurisprudence makes clear that where the accused intends to testify on one count but not another then that is an important, though not decisive, factor. The accused’s intention to testify in that manner must be plausible and involve a concrete scenario. V.

Analysis [ 43 ] As a preliminary point, it is not relevant in a severance application that the Crown has proceeded by direct indictment, which prevented the accused from having a preliminary inquiry. The Code permits the Crown to prefer a direct indictment. If the Crown so proceeds, this “does not deprive [the accused] of any procedural guarantees”: R. v. S.J.L ., 2009 SCC 14 at para. 36 , [2009] 1 S.C.R. 426.

The court in S.J.L. earlier stated that, “…the incidental function of the preliminary inquiry as a discovery mechanism has lost much of its relevance” (at para. 23, see also the court’s general discussion at paras. 21-23). [ 44 ] This Court does not accept the Applicant’s concern that a common trial of counts 1-11 would provide the Crown an unjust advantage. The Crown would still be subject to its usual obligations for admission of evidence. In R. v.

Arp at para. 52 , Justice Cory stressed that severance and admissibility of evidence on a similar fact basis are discrete, they place different burdens of proof on the parties to a criminal proceeding, and “... the trial judge should be careful not to confuse admissibility with severance.” The Crown cannot

circumvent the usual rule to admit evidence between separate offence scenarios when those offence scenarios are tried at the same time. [45] The parties agree that the trial’s legal and factual complexity and threat of inappropriate reasoning likely are not relevant inthis matter. In a judge-alone trial, the risk that complainant testimony may be erroneously reinforced is reduced: Last at para. 40. [46] Efficiency would clearly be served if this Court were to deny the severance application.

In Last, Deschamps J. at paras. 41-42,observed that the charges in that case shared almost no common witnesses, and admission of similar fact evidence was unlikely. Theother extreme is where offenses are connected by a common causative scheme, and occurred as a continuous or overlapping sequence: R.v. Paré, (SCC), [1987] 2 S.C.R. 618, 45 D.L.R. (4th) 546. The facts, as the Crown presented, fall somewhere in betweenthese two scenarios.

It would appear, however, based on this factor alone, that efficiency would be served if this Court were to deny theseverance application. [47] In relation to witnesses, the Crown has suggested that efficiency is not the only basis on which this Court should attempt toavoid the requirement that a complainant testify repeatedly in several proceedings. It argues the negative effect of repeated testimony andcross-examination on traumatic events can cause harm to certain witnesses, and therefore should be avoided. In R. v.

Thomas, 2010ONCA 662 at para. 4, the Ontario Court of Appeal appears to have confirmed the trial judge’s decision not to order separate trials ofcounts in part to ensure “... a young, vulnerable complainant (on the sexual assault charge) testify, if possible, only once.” Thatcomplainant was a 14 year old girl who testified with the benefit of a screen pursuant to Criminal Code, s. 486.2(1). [48] This court does not reject the negative effect on witnesses as a relevant factor.

However, it has not been informed that eitherL.J. or J.L. are under the age of 18 years, and would presumptively require special treatment as witnesses: Criminal Code, ss. 486.1(1),486.2(1). This Court, therefore, puts less weight on this factor than the court in Thomas. The interests and comfort of witnesses aresecondary to the right of an accused to receive a fair trial.

As the court stated in Cross: 42 Finalement, la décision d'ordonner ou non un procès séparé dans des circonstances données relève de la discrétion judiciaire dujuge du procès et la Cour d'appel ne devrait intervenir que si l'exercice de cette discrétion s'avère injuste pour l'accusé ... [49] In R. v. Henry, 2010 BCCA 462 at paras. 82-88, 294 B.C.A.C. 96, Low J.A. concluded that joint trial of multiple counts ofsexual offences is a reversible error, where identification is an issue and no evidence is admissible between counts. Henry is an exampleof a trial without a factual nexus.

The Crown argues that a legal and factual nexus exists between the alleged offences involving the twocomplainants L.J. and J.L. This Court agrees. There are significant parallels in the manner in which L.J. and J.L. were abducted andassaulted. The descriptions of the assailant and his vehicle are compatible. With the limited information the parties have provided to thisCourt, it appears that evaluation of counts 1-7 and 8-11 will likely involve similar legal issues, such as identification. [50] Nevertheless, does the factual and legal nexus in itself bind these two sets of counts together?

In Last at para. 32, the courtseems to suggest that if two incidents are part of the same transaction, then that indicates a close legal and factual nexus. Inferentially,that is a reason to join two or more counts in a common trial.

The parties agree the attacks on L.J. and J.L. are best characterized asseparate transactions. [51] Justice Deschamps goes on to observe in Last at para. 32 that: “[t]he trier of fact would not need to know about one [offence]in order to understand the other.” This Court interprets that statement as indicating that where alleged offences are so intertwined, then astrong legal and factual nexus exists. However, this Court does not see that kind of link between counts that involve L.J. and J.L.

Eachoffence scenario stands on its own. [52] Justice Deschamps goes on to discuss similar fact evidence and how that favours joint trial as a “truth seeking interest.” Thisappears to be setting a hierarchy of ‘nexus linkage.’ At the highest end are cases where the offences occur within the same transaction, orwhere the alleged wrongdoing can only be understood by a joint trial of the counts.

If those criteria are not met, then the question iswhether the offence scenarios are relevant to one another, such that the evidence in one may support a conclusion in the second on asimilar fact basis. [53] Identification is clearly an issue in this case. The court in R. v. Handy, 2002 SCC 56 at para. 78, 164 C.C.C. (3d) 481, citedwith approval the statement from R. v. Carpenter (1982), (ON CA), 142 D.L.R. (3d) 237 at 244 (Ont. C.A.), whichsaid:

The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to beintroduced and the other evidence. [54] Justice Binnie in Handy at paras. 77-79, reviewed the stringent conditions to admit identification similar fact evidence andconcluded that evidence is only admissible where the parallels are “peculiar and distinctive” as to amount to a “signature.” In Last atpara. 34, the Supreme Court of Canada confirmed that this standard is also used in a severance application to test whether similar factevidence is a relevant consideration. [55] Here, the alleged parallels between the two offences are striking, even though the witness identification of the Applicantseems weak.

Therefore, it is plausible that similar fact evidence could be admitted for identification purposes, or to provide moreconfidence that a particular witness ought to be believed, as that witness’s account parallels the account of another witness: R v. B.(C.R.), (SCC), [1990] 1 S.C.R. 717 at 739, 107 N.R. 241; R v. Carpenter (No. 2) (1982), (ON CA), 142D.L.R. (3d) 237, 1 C.C.C. (3d) 149 (Ont. C.A.).

Thus, the possible introduction of similar fact evidence between the L.J. and J.L. countscreates a significant legal and factual nexus between the two offence scenarios. [56] The final relevant factor is whether the Applicant would be unfairly prejudiced if he were deprived of the opportunity totestify in relation to one set of charges but not the other. Here, the Applicant informed this Court that he might testify in a separate trial ofthe L.J. charges, but he will not likely testify in any trial of the J.L. counts.

Thus, the Applicant argues that he would be prejudiced if thisCourt did not grant his severance application. The Crown stressed that there must be an objective basis for the Applicant to testify: Lastat para. 26. That said, the Crown was not able to provide a reason why the Applicant’s explanation for his planned, but selective,testimony is unreasonable or implausible. [57] The Applicant’s stated intention to testify on one count but not another is a fact that deserves significant weight. However, itis not determinative in a severance application: Last at para. 27.

This Court must decide whether that stated intention is objectivelyjustifiable or, even if it is, whether this stated intention is outweighed by other factors that show that the interests of justice require a jointtrial: Cross at paras. 49-54. Last at para. 26, reminds us that “[t]he burden on the accused is to provide the trial judge with sufficientinformation to convey that, objectively, there is substance to his testimonial intention.” The Applicant has met that requirement. [58] This leaves this Court with a balancing exercise. A joint trial offers efficiency.

The offences involving the two complainantsL.J. and J.L. are not related but are plausibly interconnected by identification similar fact evidence. Some of the same witnesses would beinvolved in separate proceedings. [59] In Last at para. 44, the court concluded severance was the appropriate remedy when: ... [A] joint trial in the circumstances of this case did not serve any truth seeking interest, and brought few if any benefits to theadministration of justice. [60] Here, the benefits of joint trial are much more tangible.

Nevertheless, this Court concludes in this case that the interests ofjustice require separate trial of counts 1-7 and 8-11. Though the L.J. and J.L. offence scenarios show similarities that may be relevant attrial, the alleged wrongdoing in both occurred in what are acknowledged to be separate transactions.

As well, “[t]he trier of fact wouldnot need to know about one in order to understand the other.” In the light of that observation this Court concludes that the kind of legaland factual nexus between the two sets of counts is not sufficient to displace the prejudice to the Applicant which would result if he didnot have the opportunity to testify in response to the allegations by L.J. VI. Conclusion [61] This Court grants the Applicant’s application in relation to charges 1-7 and 8-11. These two sets of charges will be tried in

separate criminal proceedings. The correct treatment for count 12 remains the subject for additional submissions and a future hearing, if necessary. Heard on the 2 nd day of May, 2011. Dated at the City of Edmonton, Alberta this 10 th day of May, 2011. K.D. Yamauchi J.C.Q.B.A. Appearances: Carrie-Ann Downey and Avril Inglis Attorney General of Alberta for the Crown Peter Shipanoff Knisely Shipanoff LLP for the Accused