R. v. Kogvik, 2012 NUCJ 13

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Kogvik, 2012 NUCJ 13 Date: 20120531 Docket: 22-11-52 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Ben Kogvik ________________________________________________________________________ Before: The Honourable Madam Justice Tulloch Counsel (Crown): J. Marin Counsel (Accused): P. Falvo Location Heard: Iqaluit, Nunavut Date Heard: March 7, 2012 Matters: Criminal Code, s. 591(3) ; Ruling on Application for Severance REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document has been edited for publication) I. INTRODUCTION

[ 1 ] An application for severance has been made on behalf of Mr. Ben Kogvik with respect to an indictment containing eight counts of sexually related offences involving five different complainants. [ 2 ] It is clear on the law that in order to succeed, the applicant (also referred to as the accused) has the onus to show the Court “on a balance of probabilities” that the interests of justice demand separate trials with respect to the five complainants who have come forward in this case. [ 3 ] The accused elected to be tried by a court composed of judge and jury with a preliminary inquiry on all charges. [ 4 ] Mr.

Kogvik has now been committed to stand trial with respect to all eight counts following the preliminary inquiry which took place in […] on Feb. 21 and 22 of this year. [ 5 ] I have carefully reviewed the law and the cases submitted by both counsel and turn my mind to the list of factors that must be balanced by the Court when considering an application for severance. [ 6 ] I think it is important to go through each factor separately, keeping in mind the unique circumstances of the case before the Court. II. ANALYSIS A.

Factor 1: the Court must consider any factual or legal nexus between the complainants and the offences [ 7 ] The applicant submits that there is very little nexus in this case, if any.

His argument on this point is that there is little overlap of time between the alleged offences and that there is a considerable gap of time between some of the offences. [ 8 ] He characterizes the charges as eight distinct events and makes the point that it seems unlikely that one of the witnesses would be called on to corroborate the other. [ 9 ] Although he agreed that all allegations involve offences which happened in or around the hamlet of […], he submits that the events are distinct and unconnected to each other. [ 10 ] After careful review of the preliminary inquiry transcript, I find some evidence to suggest that a nexus might exist and some evidence to contradict the submission made that there is no close or meaningful connection between the five complainants and the alleged charges. [ 11 ] All five complainants in this case lived in […] at the time of the alleged offences. [ 12 ] It is most likely that in relation to all five complainants, the accused will be found to have been in a position of trust and/or authority at the time of the alleged offences. [ 13 ] All of the charges allege conduct by the accused involving touching for a sexual purpose.

[ 14 ] Most charges are alleged to have happened some time ago and are historical in nature, with the last allegation taking place in October of 2010. [ 15 ] All allegations are said to have occurred in or around the vicinity of […]. [ 16 ] Four of the complainants are related to each other. [ 17 ] All of the complainants grew up together in […]. [ 18 ] From my review of the preliminary inquiry transcript, discussions have taken place between two of the complainants with respect to the alleged offences which are the subject matter of at least two of the charges. [ 19 ] Two of the complainants indicate that the inappropriate touching arose in the school in […]. [ 20 ] From these findings, I conclude from my review of the materials filed, the case law on point and the preliminary inquiry transcript that there is some factual nexus and, in fact, there may be some legal nexus as well. [ 21 ] Of course I agree with the applicant that this is only one factor to take into consideration.

B.

Factor 2: whether general prejudice to the accused would result from my decision not to sever the counts as requested [ 22 ] On this point, the applicant very fairly indicates that there could be a danger, if all matters are heard together in one trial, that the jury will use the evidence of one complainant to convict on charges involving other complainants. [ 23 ] The risk is that the jury may inappropriately use propensity reasoning if the charges are not severed. [ 24 ] The applicant submits that it would be harder for a jury to hear eight distinct allegations at one time and that there is a real risk of prejudice to the accused that an appropriate charge to the jury could not cure.

The evidence of one may in fact impact the verdict on another. [ 25 ] When I invited the applicant to comment on the risk of propensity reasoning and prejudice if, in fact, the counts were severed and five separate jury trials were to take place, the applicant agreed that given the geography of Nunavut and the reality of holding five jury trials in the hamlet of […] (or in fact in other communities within Nunavut) propensity reasoning could take place whether the counts are severed or not. [ 26 ] The applicant conceded that there could be prejudice to the accused in this case if matters are not heard together.

Holding five separate trials for similar offences involving one accused who is a prominent member of a community the size of […] will put considerable pressure on both the accused and the complainants. [ 27 ] Even if the trials do not attract considerable media attention, getting five impartial and fair juries will be extremely difficult given the fact that news of one will travel quickly and may in fact affect the next and that one could affect the next, and so on. [ 28 ] Be assured that I have carefully considered this factor before coming to my decision in this case because it is an important factor when considering the effect on the administration of justice and the accused’s right to make full answer and defence.

That being said, I

feel that its weight is somewhat diminished as a result of the realities which relate specifically to Nunavut’s justice system. [ 29 ] The applicant tells me that, depending on the outcome today, it is possible that the accused will re-elect to Judge Alone on some or all of the charges. This is speculation and I cannot, in good conscience, put much weight on this submission. [ 30 ] On this point, I agree with the respondent that if I grant severance, the result is that the accused would then be entitled to five separate dates for five separate jury trials. C.

Factor 3: complexity of the evidence [ 31 ] I think it is fair to come to the conclusion from the submissions made during this application that the evidence in this case will not be complex in nature. The allegations are all sexual in nature, most involving incidents that are alleged to have occurred when the complainants were under the age of consent. D.

Factor 4: whether, in fact, the accused is likely to testify with respect to some of the alleged incidents and not others [ 32 ] On this point, it appears clear that the applicant has not made a decision on whether or not the accused will testify on some incidents and not others. [ 33 ] This is understandable as trials have a tendency to take on a life of their own and, at this point, no one can predict what the evidence will be at trial.

That being said, the accused has elected trial by jury on all counts and a preliminary inquiry has been conducted. [ 34 ] I am of the opinion that it is just as likely that the accused will testify as it is that he will not testify and the applicant has not convinced me on this factor alone that the charges must be severed in order to satisfy the onus he bears in favour of severance. E. Factor 5: possibility of inconsistent verdicts [ 35 ] The evidence at trial may well result in different verdicts with respect to different complainants.

If matters are kept together, those findings would be made on the evidence as a whole and would not be made independent of each other. [ 36 ] On this point, I am somewhat swayed by the respondent’s argument and the applicant’s agreement that both propensity reasoning and the possibility of inconsistent verdicts could in fact happen whether the charges are severed or not; and if they are severed, there would be no jury charge or instruction given that could actually assist to avoid this from occurring.

It is therefore possible that a proper charge may in fact be able to limit this unwanted result. [ 37 ] I will pause here to comment briefly on the applicant’s argument that section 591(3) of the Criminal Code demands that the accused be tried separately with respect to each complainant. [ 38 ] This

section clearly indicates that the Court MAY, where it is satisfied that the interests of justice so require, order pursuant to 591(3)(

a) that the accused be tried separately on one or more counts. Section 591(1) is clear also that “any number of counts for any number of offences may be joined in the same indictment and tried together…”. F. Factor 6: the public interest to avoid multiplicity of proceedings.

[ 39 ] Everyone agrees that to have five jury trials would impose an impossible and incredible hardship on the community of […]. [ 40 ] Even if one could get five separate juries to hear charges on five different complainants over time, the cost to our system of justice would be great to everyone, including the accused. [ 41 ] This factor involves a consideration of society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner. [ 42 ] It stands to reason that the issue of possible collusion should be considered and if there is a possibility that collusion may be an issue at trial, inconvenience to complainants who will have to testify in more than one trial should be taken into account. [ 43 ] The applicant indicates that this is not likely but from my review of the preliminary inquiry transcript, at least two of the potential complainants have admitted that they discussed the alleged charges relating to their particular experiences with Mr.

Kogvik. This seems to suggest that the potential for collusion may still exist. [ 44 ] It is clear from the applicant’s argument. and from the case of R v Last, 2009 SCC 45 , [2009] 3 SCR 46, that public interest must not trump the other factors. It is simply something that must be taken into account. [ 45 ] In this case, it is not hard to find that it is clearly in the public interest to maintain a single trial. I also find that the cost of having five separate trials - whether jury trials or judge alone trials - would place an increased burden on the Court, both in terms of trial time and cost. G.

Factor 7: issue of similar fact evidence [ 46 ] I will not give this factor much weight in my decision as it seems fairly clear that the allegations will likely not meet the test for similar fact evidence. [ 47 ] The Crown, however, does reserve the right to pursue such an application at trial, although at this point there has been no indication that they will do so, and therefore, this does not figure very strongly in my overall decision with respect to severance. H.

Factor 8: length of the trial, having regard to the evidence to be called [ 48 ] It is, of course, difficult to assess how long the trial will be if charges are not severed but it is possible to conclude that the overall time to complete matters will be much longer if we hold five separate trials with respect to five different complainants. I. Factor 9: potential prejudice to the accused with respect to the right to be tried within a reasonable time [ 49 ] This is an important consideration and common sense tells us that more time would be required for five separate trials.

The Court in this jurisdiction is already backlogged and setting five trials would mean that Mr. Kogvik’s matters would not be completed until late 2013 or even later than that. J. Factor 10: potential existence of antagonistic defences as between co-accused persons [ 50 ] There are, of course, no co-accused and, therefore, I need not consider this factor which exists in the law on severance.

III.

CONCLUSION [ 51 ] As I said at the beginning of my reasons, for this Court to order the requested severance, the applicant must show on a “balance of probabilities” that the interests of justice demand separate trials with respect to the five complainants that have come forward in this case. [ 52 ] In balancing all of the factors that I have just gone through one by one, I find that the onus has not been met and I am therefore going to dismiss the application for severance in this matter and order that all counts be tried together. [ 53 ] The matter will go to July 16th at 1:30 pm to set a date for trial in Assignment Court.

Thank you to counsel for their excellent arguments. Dated at the City of Iqaluit this 31st day of May, 2012 ___________________ Justice B. Tulloch Nunavut Court of Justice