R. v. Favell, 2021 MBPC 53

CITATION: R. v. Favell, 2021 MBPC 53 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) K. Basarab ) ) for the Crown - and – ) ) ) Earl Blaine Favell ) ) C. Pauls for the Accused ) ) ) Judgment delivered: ) October 18, 2021 HARVIE, P.J. INTRODUCTION [ 1 ] The accused is charged on a single Information with sexual assault and voyeurism with respect to two separate complainants. There is an additional count of assault with respect to one of the complainants. The charges span identical time frames, being May 25 to June 17, 2020.

The accused brings a motion for severance of the counts with respect to each complainant. Crown counsel opposes the application. [ 2 ] Crown counsel is proceeding by indictment and defence counsel has elected for trial in Provincial Court. Trial dates have not yet been set, although counsel were encouraged to reserve dates pending this decision. [ 3 ] Both Crown and defence agree as to the legal test and the case law. An application of this nature is governed by Criminal Code s. 591(3) which states: T he 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. [ 4 ] Ultimately, the trial judge must decide whether the granting of severance is required in the interest of justice. Both counsel agree that applications of this nature are largely factually driven. BRIEF OVERVIEW OF THE FACTS [ 5 ] On June 19, 2020, the complainant C.W. attended to the Selkirk RCMP Detachment stating that she had been sexually assaulted and the event had been recorded on the accused’s cellphone. At the material time the complainant C.W. was living with the accused.

She provided a video statement to the police indicating that she had found an unfamiliar cellphone in their residence. Because it was not password protected, she was able to access it and determined that it belonged to the accused. She stated that she was unaware that the accused had two cellphones. On the phone she viewed a video of herself being sexually assaulted by the accused while asleep or passed out.

She also discovered that the cellphone contained explicit content relating to other unknown women, including a woman she recognized as being, K.G., a mutual friend/acquaintance who had previously stayed at their residence. K.G. is the second complainant in these proceedings. [ 6 ] After speaking to the police the complainant C.W. returned to the accused’s residence. When he refused to allow her entry there was an altercation between the two.

Police were contacted and the accused was subsequently charged with assault, sexual assault and making visual recordings without consent. [ 7 ] After the arrest of the accused, RCMP obtained a video statement from the complainant K.G. She confirmed that she would frequently spend the night at the accused’s residence and on occasion had consumed alcohol to the point of intoxication. She was unable to provide specific details but stated that she did not consent to sexual contact with the accused.

[8] Police applied for and obtained a search warrant for the accused’s cellphones, and the contents have been analyzed. At trial,Crown counsel intends to rely on evidence from the RCMP Digital Forensic Services who examined both cellphones. APPLICATION OF

SECTION 591 [9] The burden of establishing whether severance should be granted rests with the applicant on a balance of probabilities. Asnoted, pursuant to Criminal Code s. 591(3) the overarching question is whether severance is required “in the interest of justice”.

In R. v.Last, 2009 SCC 45 , 2009 3 SCR 146, the Supreme Court recognized a number of factors that must be weighed in determining aseverance application, stating that the “weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to theaccused and the public interest in a single trial”. [10] The Court identified a “non-exhaustive” list of factors which may be considered in a severance application.

These factorsinclude (at para 18): • The general prejudice to the accused; • The legal and factual nexus between the counts; • The complexity of the evidence; • Whether the accused intends to testify on one count but not another; • The possibility of inconsistent verdicts; • The desire to avoid a multiplicity of proceedings; • The use of similar fact evidence at trial; • The length of the trial having regard to the evidence to be called; • The potential prejudice to the accused with respect to the right to be tried within a reasonable time.

I recognize that there is some overlap between some of these factors, while others are less relevant. The following is an assessment of themost pressing of the factors. The general prejudice to the accused [11] General prejudice to the accused, sometimes referred to as “moral and reasoning prejudice” or “cross-pollination”, relates to thepotential for a trier of fact to inappropriately use evidence adduced with respect to one charge to draw an adverse inference against theaccused on another.

Defence counsel expresses concern that given the nature of these offences the trial Judge may, even inadvertently,use credibility findings with respect to one complainant in the case involving the second complainant. Such prohibited “propensityreasoning” can result in prejudice to the accused. [12] I am not overly concerned with respect to this general ground. Trial Judges are regularly called upon to distinguish evidencebetween particular counts, to ignore evidence which is otherwise inadmissible and to be aware of the risk of cross-pollination oncredibility assessments.

The need for a trial judge to provide reasons provides some protection against any potential prejudice. I alsoagree with the Crown that concerns under this heading are considerably lessened when the case is tried by a Judge alone as opposed to aJudge and jury. The factual and legal nexus between the counts [13] I accept that there is some factual nexus between the offences. The offences allege identical time frames in the Information. They are alleged to have occurred at the complainant’s residence.

Both involve videos recorded on a cellphone that is alleged to belongto the accused. [14] There is also some testimonial overlap. Both counsel acknowledge that if severance were granted, the complainant C.W. wouldlikely be called upon to testify in the trial involving the complainant. However, with respect to the complainant K.G., the reverse is nottrue.

Further, defence counsel suggests that agreements and concessions may well alleviate the Crown’s need to call the complainantC.W. in the trial involving the complainant K.G. [15] While I am satisfied that there is some factual overlap between the two sets of allegations, it is important to avoid anevidentiary analysis under this heading that effectively involves “propensity reasoning”.

Even if heard together, there are limits on theuse a trier of fact can make of the evidence of each complainant without offending the rule against “cross-pollination” already discussed.Ultimately, I am not satisfied that there is sufficient factual nexus that would hinder the truth-seeking function if the trials were severed. The use of Similar Fact Evidence [16] Crown counsel very fairly acknowledges that an application for similar fact evidence has not yet been made, and that no finaldecision has been made as to whether such an application will be forthcoming.

The severance motion will therefore be assessed beingmindful that a similar fact motion is a possibility. [17] Also relevant is the fact that even absent a similar fact application, there are circumstances where general evidence related tosuch issues as background and context may allow for consideration of evidence outside a formal similar fact application.

The complexity of the evidence [18] While cases of this nature largely turn on the evidence of the complainant, Crown counsel fairly argues that the evidence willalso include data from the two cellphone extractions, as well as a voir dire respecting the admissibility of the accused’s statement. Defence counsel expresses a willingness to concede that any evidentiary rulings respecting one complainant can apply to the trial of thesecond complainant.

While this concession will certainly be helpful, I am also mindful of the Crown’s concern respecting the bindingnature of such an undertaking if the accused were to switch counsel. The Crown’s concern, although hypothetical at this point, must betaken into account. [19] I am sensitive to the fact that the severance of the counts may result in some extra Court time, I am not satisfied that it is ofsuch an amount as to preclude severance. Right to be Tried within a Reasonable Time [20] In R. v.

Jordan, 2016 SCC 27, the Supreme Court urged all players in the criminal justice system to remember that “timelyjustice is one of the hallmarks of a free and democratic society” and that the Canadian public expects that accused individuals will bebrought to justice expeditiously. Charter s. 11(

b) guarantees the accused the right to a trial within a reasonable time. [21] Crown counsel argues that the severance of these charges will add duplicity to the proceedings and will therefore adverselyimpact timely justice. She argues that if severance is granted, two multi-day trials will be necessary. Defence counsel concedes that thecase involving the complainant C.W. will likely require multiple days, but with agreements he argues that the case involving thecomplainant K.G. may only require one day. [22] The offences are alleged to have occurred between May 25 and June 17, 2020.

The accused did not have a first appearance untilSeptember 25, 2020 on an Information sworn September 17, 2020. Although there is no evidence that the COVID-19 restrictionsimpacted the first appearance of this matter, there is no doubt that the global pandemic continues to have an impact on Courtproceedings.

Crown counsel candidly acknowledged that as of the date of the motion, the earliest multiday trials available in SelkirkCourt were in August, 2022 with single day trials being scheduled in November, 2022. [23] It is difficult to definitively conclude that the severance of these matters will result in a significant or unreasonable delay.Further, while there is generalized public interest in seeing matters dealt with on a timely basis, that interest should not displace the needfor severance if it is necessary in the “interests of justice”.

Whether the accused intends of testifying on both counts [24] In argument, counsel for the accused expressed that the accused intends to testify with respect to the allegations made by thecomplainant C.W. but not by the complainant K.G. He argues that given the very different relationship between the accused and the twocomplainants, such an approach is legitimate and realistic. Crown counsel questions whether such a position is realistic given the natureof the allegations and argues that it is insufficient for the accused to simply state a desire to testify in one case but not another.

I alsorecognize that this factor “is not – and probably should not ever be – determinative” (see R. v. Sahrubsall, (NS SC),[1999] NSJ NO. 496 (NSSC) at para 43). [25] R. v. Laporte (PLR), 2016 MPCA 36 suggested the following approach when assessing this factor (at para 127): The intention to testify should have both a subjective and objective component.

In respect of the objective component the burden [is] onthe accused to satisfy the trial judge that circumstances objectively establish a rational for testifying on some counts but not on others. [26] This is consistent with the comments of the Court in Last, with the Court also noting that the trial Judge should not substitutetheir own view for that of the accused. [27] In R. v. Hanska, 2013 MBQB 295, Martin J. granted severance for a 24-count indictment for a variety of reasons, the mostsignificant being the accused’s intention to testify with respect to some counts but not others.

Martin J. accepted as well that there was nomeaningful prejudice to the Crown given the overall nature of the charges and the evidence. [28] The right to remain silent continues throughout the trial process. When an accused chooses to testify, he not only forfeits hisright to silence, but also forfeits the right to address the trial Judge last.

If severance is not granted, the accused would be deprived of theright not to testify in the matter involving the complainant K.G. and would leave himself open to cross-examination on all counts.However, I am satisfied that the accused has subjectively expressed a desire to testify in respect of one complainant and not the other,and that his intention is objectively justifiable. I find that this is a strong factor in favour of severance.

CONCLUSION [29] Having considered the wording of Criminal Code s. 591, the factors identified by the Supreme Court for consideration, and thespecific nature of the evidence in this matter, I am satisfied that it is in the interests of justice that the motion for severance of the chargesinvolving the two complainants be granted. While I am mindful that this may result in additional evidence being called in the trialinvolving the complainant K.G., I am not satisfied that it is of such a nature that it should preclude severance.

I am mindful of theagreements offered by defence counsel which will assist in streamlining the respective prosecutions and may save Court time. I am alsosatisfied that the desire of the accused to testify against in the case against one complainant but not the other is both subjectively andobjectively supported. [30] I am therefore ordering that the charges involving the complainant C.W. be severed from the charges involving thecomplainant K.G.

“Original signed by” Harvie, P.J.