R. v. Walters, 2011 ABQB 585

Court of Queen ’ s Bench of Alberta Citation: R. v. Walters, 2011 ABQB 585 Date: 20110927 Docket: 090950411Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Norman Washington Walters Accused Restriction on Publication: By Court Order, information that may identify the complainant may not be published, broadcast, or transmitted in any manner.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 . _______________________________________________________ Memorandum of Decision on the Voir Dire Severance Application of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ Introduction

[ 1 ] Norman Washington Walters faces a six count indictment, alleging three counts of sexual assault with a weapon, one count of robbery, one count of unlawful confinement and one count of theft. The matter is set to be heard by a jury, commencing September 26, 2011. [ 2 ] The three counts of sexual assault involve three women. Mr. Walters applies to sever the counts so that the charges relating to each woman would be tried separately. The Crown opposes the application. [ 3 ] In connection with Mr.

Walters’ severance application, the Crown has given notice that it will apply during the trial to adduce similar fact evidence such that some of the evidence of all three of the complainants may be used against Mr. Walters on the counts relating to each of the complainants individually. Background [ 4 ] The parties are essentially agreed on what the three complainants are likely to testify to. Mr.

Walters’ submission contains the following description (with some slight editing on my part): On July, 2009, M.B. agreed to meet with a “Dave” (who had been identified as Norman Walters) who she had met on a Craig’s List posting looking to have a casual encounter. At approximately 0300 hrs, Mr. Walters arranged to have a Barrel taxi pick up M.B. at Lodge Motor Inn located at 18125 Sony Plain Road and transport her to 6307-34B Street. Mr. Walters arranged to make payment to the cab driver upon his arrival. Upon arrival at 6307-34B Street, M.B. walked to the backyard of the address where Mr. Walters was waiting.

M.B. and Mr. Walters walked to the back alley and ended up directly behind 6403-34B Street. M.B. asked what was going on and “Dave” pulled out a folded switch blade knife with the blade unfolded with his right hand. He grabbed M.B.’s shirt with his left hand and stated “This will be easy and good if you don’t scream.” M.B. struggled and received cuts to her hands. Mr. Walters would not let M.B. leave and stated “This knife to your spine will paralyse you, if you scream, I will stab you”. M.B. then complied with Mr. Walters demands so he would not harm her. Mr.

Walters then had penile/vaginal intercourse with her thus committing the offence of Sexual Assault with a Weapon contrary to section 272(2)(b). On July 31, 2009, K.L. made contact with a “Daryl” later identified as Mr. Walters via the Craig’s List website for a casual encounter. A meeting was set up for August 1 st at 0245 hrs, at 6407-34B Ave. K.L. arrived by cab and met Mr. Walters on the front step. As she approached, Mr. Walters suggested they go to the alley. They stopped by a motor home parked behind a residence. The male asked for a “blow job”, thus committing the offence of sexual assault contrary to

section 271 of the Criminal Code . She was about to leave and the male grabbed her purse. Mr. Walters then produced a knife and began to cut the purse straps. Mr. Walters cut K.L.’s left pinky finger ½ in. deep to the bone and stabbed her on her left wrist ½ in. deep. He thus committed the offence of robbery contrary to

section 344(b). On August 4, 2009 at 0300 hrs, M.J. was contacted by a male named “David” (who has been identified as Mr. Walters) who was responding to her posting on Craig’s List for a casual encounter. They make an arrangement to meet for a sexual encounter for money. M.J.’s driver took her to 6032-38 Ave to meet with Mr. Walters.

The address was a condo under construction and Mr. Walters told M.J. that he was a worker and that they had to go downstairs. M.J. didnot want to go downstairs and Mr. Walters produced a knife and told her she would or else he would hurt her. Mr. Walters forced her downstairs to the furnace area and prevented M.J. from leaving by threatening her with the knife, telling her if sheyelled or was uncooperative he would “slit her throat”, thus committing the offence of forcible confinement contrary to section 279(2). Mr. Walters then forced her to perform oral sex on him by holding the knife to M.J.’s head.

M.J. told him that she did not want to givehim a “blow job” and that she did not want to have sex with him. Mr. Walters held the knife to M.J.’s neck and forced her onto her handsand knees and had non-consensual penile/vaginal intercourse with her, thus committing sexual assault with a weapon contrary to section272(2)(b). Once Mr. Walters was finished he grabbed M.J.’s purse and ran from the location, thus committing the offence of theft under $5000.00contrary to

section 334(b). [5] The Crown’s submission is similar except with respect to the description of the encounter with K.L. The Crown submits thatK.L. will testify that when Mr. Walters asked her for a “blow job”, she asked about payment. It was at that point that Mr. Waltersbrought out a knife and demanded that she “suck his dick”. She screamed, struggled and was cut by the knife during the struggle. Mr.Walters then cut her purse straps and pulled the purse away. K.L. then ran away. Law Severance [6] Mr. Walters’ application is made under s. 591(3) of the Criminal Code, which provides:

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

a) that the accused or defendant be tried separately on one or more of the counts; and (

b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts. [7] The parties are agreed that the law in regard to severance is most recently dealt with by the Supreme Court of Canada in asubstantive way in R. v. Last, 2009 SCC 45 , [2009] 3 S.C.R. 146.

Deschamps J., for a unanimous court, described the judge’srole in a severance application as a balancing of the accused’s right to be tried on admissible evidence and society’s interest in seeing thatjustice is done in a reasonably efficient and cost-effective manner (at para. 16). [8] Last and R. v.

Arp, (SCC), [1998] 3 S.C.R. 339, make it clear that the burden is on the accused to prove ona balance of probabilities that the interests of justice require severance (Last at para. 33; Arp at para. 339. [9] At para. 18 of Last, the Court identified a non-exhaustive list of factors to be considered in balancing the interests of justice: [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 nexusbetween the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibilityof inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trialhaving regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonabletime; and the existence of antagonistic defences as between co-accused persons... [10] The approach to the criteria was discussed in para. 17: [17] Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed when decidingwhether to sever or not.

The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to the accusedand the public interest in a single trial. It is important to recall that the interests of justice often call for a joint trial. Litchfield, where theCrown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example. Severance canimpair not only efficiency but the truth-seeking function of the trial. [11] R. v.

Litchfield, (SCC), [1993] 4 S.C.R. 333, involved the ordering of a new trial on a Crown appeal fromacquittal, on the basis of the overturning of a pre-trial severance order which had severed counts against various complainants on thebasis of the areas of the body the accused was alleged to have touched. Similar Fact Evidence [12] The law relating to similar fact evidence has most recently been dealt with by the Supreme Court of Canada in a substantiveway in R. v. Handy, 2002 SCC 56.

As pointed out by the Crown, admissible similar fact evidence is treated essentially an exception tothe exclusionary rules relating to propensity evidence. The general rule is that relevant evidence is admissible at trial, subject to variousexclusionary rules. [13] The starting point is to determine if the proffered evidence is relevant. The burden of establishing relevance is on the partyproffering the evidence.

The party then has the burden of establishing, on a balance of probabilities, that the evidence is admissible (i.e.not subject to an exclusionary rule, or falling within the exceptions to an exclusionary rule). As noted by Binnie J., speaking for aunanimous court in Handy: 27 The contest over the admissibility of similar fact evidence is all about inferences, i.e., when do they arise? What are they intended toprove? By what process of reasoning do they prove it? How strong is the proof they provide? When are they so unfair as to be excludedon the grounds of judicial policy and the presumption of innocence?

The answers to these questions have proven so controversial as tocreate what Lord Hailsham described as a “pitted battlefield”: Director of Public Prosecutions v. Boardman, [1975] A.C. 421 (H.L.), atp. 445. (At para. 27). Recognizing the valid policy reasons for the general exclusion of propensity evidence, or evidence of bad character, the court hasrecognized that “evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truthoutweighs any potential for misuse” (at para. 41). [14] Binnie J. continued by quoting from Sopinka J. in R. v.

B. (C.R.), (SCC), [1990] 1 S.C.R. 717: The fact that the alleged similar facts had common characteristics with the acts charged, could render them admissible, and, therefore,supportive of the evidence of the complainant. In order to be admissible, however, it would be necessary to conclude that the similaritieswere such that absent collaboration, it would be an affront to common sense to suggest that the similarities were due to coincidence . . . .

[Emphasis added.] [ 15 ] He continued at para. 42: 42 The “common sense” condemnation of exclusion of what may be seen as highly relevant evidence has prompted much judicial agonizing, particularly in cases of alleged sexual abuse of children and adolescents, whose word was sometimes unfairly discounted when opposed to that of ostensibly upstanding adults. The denial of the adult, misleadingly persuasive on first impression, would melt under the history of so many prior incidents as to defy innocent explanation. That said, there is no special rule for sexual abuse cases.

In any case, the strength of the similar fact evidence must be such as to outweigh “reasoning prejudice” and “moral prejudice”. The inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence.

Although an element of “moral prejudice” may be introduced, it must be concluded by the trial judge on a balance of probabilities that the probative value of the sound inferences exceeds any prejudice likely to be created. [ 16 ] After affirming the policy basis for this exception, he approved what was said by McLachlin J. (as she then was) in B. (C.R.) : 50 The rule received more extended and comprehensive treatment by McLachlin J. in B. (C.R.) , supra , itself. The accused was charged with sexual offences against his daughter.

The daughter testified that the alleged acts began when she was 11 years old and continued for two years. The accused denied the allegations. In support of the child’s testimony, the Crown sought to adduce evidence showing that 10 years earlier, the accused had had sexual relations with his common-law wife’s 15-year-old daughter, with whom he had enjoyed a father-daughter relationship. Writing for a five-judge majority, McLachlin J. held that the evidence, though “borderline”, was admissible.

Although evidence relating solely to the accused’s disposition will generally be excluded, exceptions to this rule will arise when the probative value of the evidence outweighs its prejudicial effect (at pp. 734-35): This review of the jurisprudence leads me to the following conclusions as to the law of similar fact evidence as it now stands in Canada.

The analysis of whether the evidence in question is admissible must begin with the recognition of the general exclusionary rule against evidence going merely to disposition. . . . [E]vidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule, inadmissible.

Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value of the proposed evidence outweighs its prejudicial effect. 51 The Court thus affirmed that evidence classified as “disposition” or “propensity” evidence is, exceptionally, admissible. McLachlin J. continued at p. 735: In a case such as the present, where the similar fact evidence sought to be adduced is prosecution evidence of a morally repugnant act committed by the accused, the potential prejudice is great and the probative value of the evidence must be high indeed to permit its reception.

The judge must consider such factors as the degree of distinctiveness or uniqueness between the similar fact evidence and the offences alleged against the accused, as well as the connection, if any, of the evidence to issues other than propensity, to the end of determining whether, in the context of the case before him, the probative value of the evidence outweighs its potential prejudice and justifies its reception. 52 McLachlin J. formulated the test for admissibility of disposition or propensity evidence, at p. 732: . . . evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury. [ 17 ] B.(C.R.) was affirmed in R. v.

Arp , some ten years later, before being re-affirmed in Handy . [ 18 ] It is significant to recognize that Handy acknowledges that similar fact evidence is at its inherent nature, propensity evidence (at para. 61) despite whatever “precise” purpose the evidence is proffered for. [ 19 ] Thus, while presumptively inadmissible, it “may exceptionally be admitted where its probative value is so high that it

displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented tothe jury” (B. (C.R.) at p. 732). [20] There still must be an “issue in question” to be identified. It must be relevant to an issue in the crime specifically charged, asopposed to being admissible in itself for propensity purposes. [21] While identification is commonly the identified issue, similar fact evidence may be admissible on other issues.

In Handy, theissue identified was the actus reus of the offence, although the specific issue for the similar fact evidence was that the accused “nevertook no for an answer” (at para. 120). At para. 80 of Handy, Binnie J. discussed “animus of the accused towards the deceased” asanother issue where similar fact evidence might be relevant. These issues are not suggested as being exhaustive of issues where similarfact evidence might be relevant. Indeed, similar fact evidence has been found relevant to possession of drugs (R. v.

Lepage, (SCC), [1995] 1 S.C.R. 654), and a propensity to sexually abuse children to whom the accused stood in a parental relationship (B.(C.R.)). [22] The next step in the analysis is to analyze the degree of similarity between the similar fact evidence and the offence oroffences alleged. B. (C.R.) referred to the “degree of distinctiveness or uniqueness” (at p. 735). Cory J. referenced the need to evaluate“the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established.” (Arp, atpara. 48). [23] Binnie J. referenced R. v.

Scopelliti, (1981), (ON CA), 63 C.C.C. (2d) 481 (Ont. C.A.) at para. 43, whichrequired the propensity to be “so highly distinctive or unique as to constitute a signature”, although it is clear from the decision thatuniqueness or “hallmarks” is not a requirement, but illustrate evidence that is at the “admissibile end of the spectrum” (at para. 91). [24] In para. 82, Binnie J. lists a number of factors to consider the degree of similarity, noting as well that the strength of the proofof the similar facts is also something which needs to be considered: 1. Proximity in time of the similar acts; 2.

Extent to which the other acts are similar in detail to the charged conduct; 3. Number of occurrences of the similar acts; 4. Circumstances surrounding or relating to the similar acts; 5. Any distinctive feature(

s) unifying the incidents; 6. Intervening events; and 7. Any other factor which would tend to support or rebut the underlying unity of the similar acts. [25] Countervailing factors are stated in para. 83 to include (

a) the inflammatory nature of the similar acts, (

b) whether the Crowncan prove its point with less prejudicial evidence; (

c) the potential distraction of the trier of fact from its proper focus on the factscharged; and (

d) the potential for undue time consumption (moral or reasoning prejudice). [26] Conclusiveness of the evidence is not a requirement (at para. 97), but the strength of it is a consideration. [27] The Handy analysis requires a review of: 1. Admissibility; 2. The probative value of the evidence (including the potential for collusion between or among witnesses, the proximity of time and

similarities between the similar fact incidents and the charges, and the weight of the similar fact evidence); 3. Assessment of the prejudice (moral prejudice or the inflammatory nature of the evidence and the tendency to infer guilt, andreasoning prejudice or the distraction and time spent dealing with this evidence); and 4.

Weighing up probative value versus prejudice (proof of an issue versus trial fairness). [28] Arp also references consideration of the sufficiency of the link between the similar fact evidence and the accused, requiringmore than just opportunity (at para. 54-57). [29] Where there is a jury, the analysis of the probative value of the evidence is in the context of the judge’s gatekeeper role withrespect to the evidence, which is generally done on a prospective basis using assumptions as to what the evidence will be, rather thanafter actually hearing the evidence. [30] Ultimately, in Handy the Supreme Court concluded that the trial judge had erred by admitting similar fact evidence whoseprejudicial effect outweighed its probative value (at para. 153).

Position of Mr. Walters [31] Mr. Walters relies on Last, and also cites R. v. Thompson, 2005 ABQB 335 and R. v. L.(M.), 1998 ABQB 99 ,[1998] A.J. No. 243 (Q.B.). He notes that in Last, the Supreme Court ordered a new trial because it held that the trial judge erred inrefusing severance. There, the accused had been charged in one indictment with counts related to two sexual assaults.

Both assaults hadoccurred in the same city, approximately a month apart. [32] The court noted the unlikelihood a successful similar fact application, and that the risk of prejudice to the accused wassignificant while the countervailing reasons for having a joint trial were not strong. The court expressed concerns over the effectivenessof a limiting instruction to the jury. [33] In Thompson, Veit J. applied the tests in B.(M.O.) in the context of a three count indictment involving drug trafficking,possession of drugs and possession of the property obtained by the commission of crime.

The accused sought severance of the traffickingcharge from the other two, citing prejudice, and the fact that he wished to testify on the trafficking charge but not the other two. [34] Veit J. noted that there was a weak factual and legal nexus between the two sets of counts. The Crown had acknowledged thatif certain evidence could not be introduced as similar fact evidence, the counts should be severed (at para. 5).

She ruled that theaccused’s argument relating to testifying on one count but not others was not relevant, as the accused’s intention was not immutable. [35] The Crown’s argument based on their wish to avoid a multiplicity of proceedings was not persuasive, and Veit J. severed thecounts. [36] In L.(M.), Nash J. severed counts and directed that each of three accuseds be tried separately.

There, three brothers had beencharged with rape and incest involving three of their sisters. [37] She noted at para. 38: 38 In my opinion, the Crown by joining the counts on one indictment, is seeking to bolster the credibility of the Complainants. Commonsense dictates that it is more likely that the jury will believe the testimony of three Complainants than the testimony of just oneComplainant. However, this belief is more likely to be founded upon the number of similar allegations rather than the similarity of the

allegations, which latter basis would be acceptable as it would make it more probable than not that the Complainants were telling the truth. [ 38 ] She held that if similar fact evidence of one count being used on another count, it would “not be possible to adequately instruct the jury that they must not consider the evidence on one count as evidence on another count.” (at para. 39). She noted that there was no nexus in time, as the incidents spanned a 10 year period, although there was a nexus in location. She thus ordered that the accused be tried separately. [ 39 ] Essentially, Mr.

Walters argues that a joint trial of all counts would be prejudicial to him, both as to moral and reasoning prejudice; he may wish to testify in his defence on one or more of the counts but not another (in particular the counts relating to K.L.) Position of Crown [ 40 ] The Crown recognizes that there is the potential for prejudice to Mr. Walters if the counts are not severed among complainants, but argues that issues favouring the proper administration of justice outweigh the potential prejudice. [ 41 ] In particular, the Crown notes that it will seek to have the evidence of all complainants used against Mr.

Walters with respect to the counts relating to each individual complainant on the basis of similar fact evidence. While there is presently no specific application for the admission of similar fact evidence, the Crown argued this application on the basis that there would be such an application and provided the particulars of such an application. [ 42 ] As noted in Last , the Crown’s intention to adduce similar fact evidence is a significant factor in a severance application. Thus the Crown points to the similarities among the counts to satisfy the requirements for the admission of such evidence.

The Crown argues that the similarities are striking and amount to a signature; 1. The incidents occurred over a period of a week; 2. Arrangements to meet for a “casual encounter” were made with each of the complainants; 3. The encounters were all for early morning hours (2:30-5:00 am); 4. All of the arrangements were initiated through the “Craigslist” website; 5. The telephone number used by the male was the same in each of the arrangements - 780-504-9459; 6.

Each of the complainants traveled to a somewhat remote location in South East Edmonton - with M.B. and K.L. to 6403-34B Avenue, and with M.J. to 6032-38 Avenue; 7. A knife was pulled by the male in each incident; 8. In all of the incidents, the first demand for sexual contact was for fellatio; 9. The male was described by all complainants as a black male, with similarities in height, weight and clothing); 11. Mr. Walters’ DNA was identified with respect to M.B. and M.J.; 12. In the incidents with M.B. and K.L, the complainants were led to the back alley behind 6403-34B Avenue; 13.

In the incidents with K.L. and M.J., the male stole the complainant’s purse; [ 43 ] The Crown describes the case for similar fact evidence as strong, characterizing the inference that the same person committed all of these acts as being the “only rational conclusion” and not merely “likely”.

[44] The Crown argues that with respect to K.L., the similar fact evidence is relevant for identity purposes, as well as proving theactus reus.

With respect to M.B. and M.J., the Crown argues that the similar fact evidence is relevant for proving the actus reus as wellas credibility issues for the complainants as consensual versus non-consensual sexual activity may become an issue. [45] Throughout argument, the Crown emphasized the improbability of coincidence as to identity and the character of the acts: thecomplainants’ claims of forced sex. [46] The Crown relies on Last, Litchfield, B.(C.R.), Arp, and Handy, and also refers to R. v. Shearing, 2002 SCC 58 ,[2002] 3 S.C.R. 33, R. v. Nicholas, (ON CA), 2004 CarswellOnt 823 (Ont. C.A.), R. v.

Titmus, 2004 CarswellBC2887 (B.C.C.A.) And R. v. C.(T.), 2005 CarswellOnt 33 (Ont. C.A.). [47] In Shearing, the Supreme Court emphasized that the to overcome moral prejudice to the accused, similar fact evidence musthave “high probative value”. The charges there involved the leader of a religious sect, charged with sexual offences against members andnon-members. Severance between those groups was denied by the trial judge, who also permitted similar fact evidence on all countsrelating to the Crown answering defences raised by the accused.

Those decisions by the trial judge were not interfered with by theSupreme Court. [48] In Nicholas, the Ontario Court of Appeal ordered new trials on the basis of what it concluded were errors on the part of thetrial judge in excluding similar fact evidence because of the absence of a “unique trademark” or “signature”. The Crown had emphasizedthat in each case, the accused had drunk orange juice from the complainant’s refrigerator after committing the offences.

The Court ofAppeal described the trial judge’s error at paras. 67 and 68: His error, in my view, was in his emphasis on uniqueness, rather than on considering whether the cumulative evidence, including theclose timing of the offences, revealed a series of significant similarities sufficient to render the objective possibility of coincidenceimprobable.

I agree that in itself there is nothing unique about the consumption of orange juice, but when taken together with the other similarities, itseems to me to reduce substantially the likelihood of coincidence. [49] Titmus involved four sexual offence charges involving two mentally disabled complainants who lived with the accused’sfamily as foster children. The offences were alleged to have taken place in the shower.

The trial judge had admitted the similar factevidence before a jury on the basis that the evidence “enhanced the credibility of both complainants, diminished the credibility of theappellant’s denial, and with other evidence she accepted, established the actus reus of the “shower incidents” beyond a reasonabledoubt.” (At para 4). The British Columbia Court of Appeal concluded that the trial judge did not err with respect to that ruling. [50] The Ontario Court of Appeal dealt with the “enhancement of credibility” argument in C. (T.).

There, the accused therapist wascharged with sexually assaulting six young patients and a young nephew. The Court of Appeal held at para. 56: [56] It is clear following Handy that the trial judge erred by identifying the issue to which the similar fact evidence was directed as thecredibility of the complainants. The problem with saying the evidence goes to the credibility of the complainant is that anything thatdenigrates an accused will enhance the credibility of the complainant, and therefore it states the issue too broadly.

However, in this case,the error is essentially one of nomenclature rather than substance. The issue in the case was not the identity of the appellant, becauseeach of the six complainants was a patient of the appellant and attended speech therapy with him in his office at the C. General Hospital.Rather the issue was whether the sexual incidents occurred during the speech therapy sessions as alleged.

The similar fact evidence wentto the issue of whether the actus reus of the offence occurred in each case, which turned on the credibility and reliability of the evidenceof the complainants on that issue, as opposed to their general honesty. Therefore, although the matter in issue was the actus reus of theoffences, in this case the trial judge did not err by referring to the matter as the credibility of the complainants, particularly when he didnot yet have the Handy decision. Response of Mr. Walters

[ 51 ] Mr. Walters responds to the Crown’s similar fact argument essentially by pointing out the differences among the counts. While the allegations are similar regarding M.B. and M.J. (DNA linking them, actual sexual contact), the locations are different. There was no theft from M.B.; M.J. was not cut by a knife. M.J. acknowledged that she was a prostitute; M.B. did not. [ 52 ] With respect to K.L., no sexual activity occurred; the location was the same as with M.B. but different from M.J.; she was cut along with M.B. but different from M.J.; her purse was stole which was the same as M.J. but different from M.B.

No DNA links Mr. Walters to her. [ 53 ] For K.L., there is an identity issue as well as an “it didn’t happen” issue; for M.B. and M.J., there are credibility issues as to what happened, and likely consent issues as to the sexual activity that did occur. [ 54 ] Mr. Walters argues that separate trials could be accomplished relatively efficiently, and with little delay based on information from the trial coordinator’s office as to trial availability. Analysis [ 55 ] Fair trial for an accused person is a cornerstone of the criminal justice system.

Nevertheless, the courts have recognized competing interests such as the public interest in the proper administration of justice. The Criminal Code permits the joinder of a number of counts into one indictment, including multiple accused, multiple complainants and multiple counts against an accused. [ 56 ] It is significant that the onus is on the accused to prove on a balance of probabilities that the interests of justice require severance.

That requires a balancing of the accused’s right to be tried only on the evidence admissible against him or her, with the public’s interest in efficiency and cost-effectiveness in the system. This burden means that there is no presumption in favour of the accused, or that fair trial issues will always trump administration of justice issues. [ 57 ] I note that the risk for prejudice to the accused has been recognized as being greater where the trial is before a jury as opposed to judge alone (see for example R. v.

Cooper , 2011 ABQB 316 ). [ 58 ] As set out in Last , the court’s analysis focuses on a number of identified factors, together with any other relevant considerations: 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 or among co-accuseds. ( Last at para. 17 ).

[ 59 ] I will deal specifically with each of these factors. 1. The general prejudice to the accused [ 60 ] Essentially, this is a given. Both moral prejudice and reasoning prejudice are engaged here. This is a factor that clearly favours Mr. Walters. 2. The legal and factual nexus between the counts [ 61 ] Mr. Walters is charged with sexual assault using a weapon regarding each complainant. So there is a legal nexus among all three complainants there.

There are additional counts regarding K.L. and M.J. relating to robbery or theft of their purses, so there is a legal nexus between those two complainant regarding the purse thefts. The unlawful confinement charge relating to M.J. is unique to her, but it arises out of the same incident. [ 62 ] There are also similar legal issues relating to Charter , Vienna Convention and sentencing considerations ( R. v. Nasogaluak [1] ). [ 63 ] Mr.

Walters argues that there are likely different defences regarding each complainant: consent and circumstances with M.B., identity and circumstances with K.L., and consent and circumstances with M.J. In particular, M.J. acknowledged being a prostitute, which was denied by M.B. [ 64 ] Factually, there are common elements or a nexus to each: mode and method of contact, incidents happened in relatively close proximity time-wise and location-wise; DNA links Mr.

Walters to two complainants; descriptions of accused are similar by all complainants; same phone number used to make arrangements for meeting; knife produced or used in all incidents; identical locations for two complainants and similar sexual acts for two complainants. [ 65 ] Mr. Walters highlights the differences, in particular the different locations for M.B. and M.J., that no sexual activity occurred with respect to K.L.; that no DNA links the accused to K.L. [ 66 ] I find that there is sufficient legal and factual nexus among the counts and complaints to support joinder.

This is a factor favouring the Crown. 3. The complexity of the evidence [ 67 ] The evidence is not complicated as it relates to the various complainants. There is limited expert evidence, much of which (DNA) has been agreed to. There is nothing about this trial that suggests that a jury would be unable to make factual decisions because of complex evidence. This is a factor that favours the Crown and supports joinder. 4. Whether the accused intends to testify on one count but not another [ 68 ] Mr. Walters may wish to testify in his own defence. He may have different defences regarding the different complainants.

I recognize that he has not committed to testify and in my view (despite Veit J.’s conclusion in Thompson ), I do not think the accused must unconditionally agree to testify before being able to raise potential prejudice in this area. Whether an accused testifies or not is

undoubtedly informed in most cases by what happens during the Crown’s case and how the Crown’s witnesses may have fared on cross- examination. At the end of the Crown’s case, the accused may be content to stay silent, believing that reasonable doubt has been left with the trier of fact. [ 69 ] Here, it is certainly conceivable that Mr. Walters may not testify regarding K.L., as an obvious area of defence is identity. He may at this stage feel somewhat compelled to testify regarding M.B. and M.J. because identity and sexual activity are not in issue.

At this juncture, it appears that credibility of those complainants, and consent are the most likely issues with them. It is also conceivable that depending on what happens during the Crown’s case, Mr. Walters may wish to testify about the circumstances involving one of them but not both, although that is more speculative at this stage. [ 70 ] The right to silence is a fundamental, Charter -protected right. If the counts are not separated by complainant, Mr.

Walters faces losing that right if he eventually wants to testify in his own defence against one or two of the complainants, but not the third. [ 71 ] This is a factor that favours Mr. Walters, albeit in a somewhat speculative way. 5. The possibility of inconsistent verdicts [ 72 ] Since there is a likely credibility issue with respect to each of the complainants, the possibility of inconsistent verdicts exists. Credibility is likely only in issue regarding the complainants. If there is one trial, the same trier of fact will assess the credibility of all of the complainants.

If there are separate trials, different triers of fact will assess credibility. Depending on the success of the Crown’s application for similar fact evidence, it is possible that a jury in relation to M.B. might believe her, but in relation to her evidence at the trial of M.J., she might be disbelieved.

With jury trials, of course, the jury’s reasons for conviction or acquittal are not made known, although there is no certainty that separate trials would all be jury trials. [ 73 ] Because of the Charter , Vienna Convention and Nasogaluak arguments, it is possible that if the counts are tried separately by complainant, different judges could make different rulings. That may have the effect of having statements by Mr. Walters admitted in some trials and excluded in others. That could result in inconsistent rulings and results. [ 74 ] On balance, this is a factor that favours joinder and against severance. 6.

The desire to avoid a multiplicity of proceedings [ 75 ] This is obviously a factor favouring the Crown. This trial has been set for five weeks. Only a portion of the trial will focus on the evidence of the complainants and witnesses specific to their allegations. Otherwise, there are a large number of police witnesses who will testify on Charter , Vienna Convention and Nasogaluak issues, presumably in connection with the investigation, detention, arrest and questioning of Mr. Walters.

Two weeks of this trial have been set aside for legal arguments common to all three complainants, including some voir dire evidence. [ 76 ] Were severance to occur, it is possible if not likely that the same legal arguments and related evidence would have to be duplicated at least in

part if not in whole. Because of common arguments relating to all three complainants (essentially as to all of the counts), this is a factor that strongly favours the Crown. 7. The use of similar fact evidence at trial [ 77 ] An analysis of this factor requires an analysis as to the likelihood that similar fact evidence would be allowed to be adduced at trial, as well as the probative value of such evidence.

[ 78 ] The starting point is to determine the issue or issues similar fact evidence is argued to be relevant to. In relation to K.L, it is clearly relevant to identity. Identity issues do not appear relevant to the counts related to M.B. and M.J. [ 79 ] As regards K.L., it is argued to be relevant to the actus reus: did the accused lure K.L. to an alley, threaten her with a knife if she did not perform oral sex on him, and then cut her with the knife as he stole her purse? Is proof that an incident such as this occurred more or less likely because of what had happened to M.B. (and what later happened to M.J.)?

Was this occurrence part of a “common causative scheme” (as per Yamauchi J. in Cooper at para. 46 ) and thus at the end of the spectrum favouring joinder, or will there be separate witnesses and little in common with the other counts, which would favour severance? [ 80 ] The court is not being asked to rule now on the admissibility of similar fact evidence; what the court must do is consider the likelihood that and application for admission would be successful, and the likely strength or probative value of such evidence.

Comments in this area do not make the matter res judicata when an application is actually made. [ 81 ] At the outset, there is no present suggestion of collusion among the complainants, so that is not a consideration for the purposes of severance. [ 82 ] I will deal with each of the factors identified in Handy to test the possible admissibility of similar fact evidence here: 1. Proximity in time of the similar acts [ 83 ] The acts all occurred in a similar location (the same as to two of the complainants) over a one week period, so this factor would appear to be satisfied. 2.

Extent to which the other acts are similar in detail to the charged conduct [ 84 ] There are common elements: the use of Craigslist, the common telephone number used to make arrangements for the meetings, all “casual encounters”; the time of day (early morning hours); the use of a knife; demands for fellatio; common descriptions of the assailant. There are common elements between two of the three complainants: DNA matches identifying Mr.

Walters; exactly the same address; theft of purses; cutting of the complainants by the knife. [ 85 ] Dissimilarities are that there was no attempt to rob or steal from M.B.; M.J. went to a different address than did the others; there was no sexual contact with K.L.; M.J. was not cut. [ 86 ] Clearly there are more similarities than differences among the incidents involving the three complainants. The incidents are not identical, but there are certainly common elements. 3.

Number of occurrences of the similar acts [ 87 ] The Crown seeks to lead evidence of three similar acts, which tends to establish more of a pattern than just two incidents. 4. Circumstances surrounding or relating to the similar acts [ 88 ] The circumstances appear to be similar: late night or early morning encounters arranged using Craigslist, likely for the purposes of sexual activity, where the female travelled to an address provided by the male. Once at the destination, the male demanded

fellatio brandishing a knife. What ensued thereafter differs with each complainant depending on the reaction of the female, but to the point of the demand for fellatio, the circumstances are similar. 5. Any distinctive feature(

s) unifying the incidents [ 89 ] Unifying features are the use of Craigslist, the common telephone number, and the use of a knife; Craigslist and the common telephone number being the most obvious. 6. Intervening events [ 90 ] There are no intervening events that appear relevant to the analysis. 7. Any other factor which would tend to support or rebut the underlying unity of the similar acts [ 91 ] The factors suggested by Mr.

Walters as rebutting unity are the differences an in particular that no sexual activity proceeded with K.L. [ 92 ] In viewing all of the factors, my conclusion is that it is likely that similar fact evidence would be admitted with respect to all of the complainants. The expected evidence demonstrates a pattern, making it unlikely that any of the acts was performed by a different person.

Essentially, it is an improbable coincidence that different black males would make arrangements over Craigslist for casual encounters using the same telephone number and having the females travel to similar locations in South East Edmonton to be immediately demanded to perform fellatio at knifepoint. 8.

The length of the trial having regard to the evidence to be called [ 93 ] Because of the common elements surrounding the investigation, detention, arrest and questioning, it is not a reasonable assumption that the each trial would take one third of the time the joined counts are expected to take (5 weeks in total).

It is not unreasonable to think that each trial might require the same two week legal argument, application and voir dire process, plus at least a week for the specific evidence relating to each complainant. [ 94 ] The total time for trial would not likely be trebled, but in my estimation would be at least doubled. 9. The potential prejudice to the accused with respect to the right to be tried within a reasonable time [ 95 ] This is not a concern expressed on behalf of Mr.

Walters, and having regard to the reported availability of trial time in Edmonton before the end of 2011, this is not a factor in the present analysis. 10. The existence of antagonistic defences as between or among co-accuseds [ 96 ] This is not applicable to this matter. [ 97 ] While neither counsel referred to the widely publicized proceedings in R. v. Pickton , 2006 BCSC 1448 , 2009 BCCA 300 and 2010 SCC 32 , the trial judge had severed a number of counts of first degree murder based on the six counts (of 26) where the victim’s death was not in issue. The Crown appealed the severance ruling following Mr.

Pickton’s acquittal on the six counts of first degree

murder (he having been convicted of second degree murder instead). The B.C. Court of Appeal ruled that the trial judge erred with respect to severance (as well as with respect to various ruling on similar fact evidence). [ 98 ] At para. 94, the Court of Appeal held that joinder was appropriate in the context of the Crown’s theory that each of the 26 killings was planned and deliberate.

Similar fact evidence was intended to be used primarily to establish identity, by pointing to the perpetrator’s modus operandi. [ 99 ] At para. 96, the Court of Appeal ruled: [96] In my respectful opinion, the learned trial judge erred in law in his assessment of the probative value of the cross-count similar fact evidence by failing to apply the standard for its admissibility as described in Arp and Handy .

That legal error is capable of separation from the factual considerations that informed the trial judge’s decision to sever the six counts from the 20. [ 100 ] Severance and similar fact evidence did not play much of a role in the Supreme Court’s decision, which affirmed the B.C. Court of Appeal decision and affirmed the convictions (on the basis that the Crown did not want to proceed with a retrial in the event Mr. Pickton’s appeal from conviction was dismissed). Result [ 101 ] As noted in the case law, there is no single factor which is determinative.

The analysis is also not completed by totaling the number of factors supporting severance to see if the number exceeds the number of factors supporting joinder. It is not that simple. [ 102 ] Essentially, there remains a judgment call as to whether the interests of justice are best served by severance or not. [ 103 ] I am satisfied from my review of the Last factors and the Handy factors relating to similar fact evidence that the interests of justice are best satisfied by joinder. In other words, Mr.

Walters has failed to satisfy me on a balance of probabilities that the interests of justice require severance. [ 104 ] There is no doubt that there may be some prejudice to Mr. Walters by joinder. Part of the prejudice is the legitimate concern about moral prejudice and reasoning prejudice.

There is also potential strategic prejudice as to whether he might testify in his own defence. [ 105 ] Balancing those factors, however, are the numerous factors favouring one trial: this is not a complex matter for the trier of fact, there are common witnesses for the Charter , Vienna Convention and Nasogaluak aspects, there are common legal issues, trial time is much less by joinder, and there are concerns about inconsistent verdicts if the counts are severed. [ 106 ] What informs my decision most significantly is the likelihood of the admissibility of similar fact evidence.

It relates to identity in one case, and the actus reus in all three. Evidence of the three complainants appears to show a modus operandi , and the likelihood that the acts were all committed by the same perpetrator. [ 107 ] In para. 32 of Last , Deschamps J. observed that “the trier of fact would not need to know about one [offence] in order to understand the other.” That does not mean that the facts must be so intertwined that the narrative for each offence would not make sense without hearing about the other.

As the courts have held, similar fact evidence may be used to establish intent, the absence of consent, as well as the acts themselves. Those element in K.L. may be aided by the evidence of M.B. Similarly, those elements and the change in location with respect to M.J. may be aided by the evidence of K.L.

[ 108 ] When I complete the required balancing exercise, I find that the truth seeking interest and the public interest in the administration of justice more than offset the potential prejudice to the accused and his fair trial interest. [ 109 ] This being said, trials are in themselves a living thing.

Severance applications can be made at any stage of the proceedings, and if circumstances emerge during the trial where the accused’s right to a fair trial is compromised by joinder, or the failure of the Crown’s application to adduce similar fact evidence, a new application might be made on such changed circumstances. [ 110 ] I am indebted to counsel for their able arguments. Heard on the 12 th day of September, 2011. Dated at the City of Edmonton, Alberta this 27 th day of September, 2011. R.A. Graesser J.C.Q.B.A. Appearances: Julie Roy & Lawrence Van Dyke Alberta Justice for the Crown David R.

Willson Law Offices of David R. Willson for the Accused [1] 2010 SCC 6