R. v. Baird, 2013 MBPC 11

CITATION: R. v. Baird , 2013 MBPC 11 Date: 2013 03 04 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Cindy Sholdice ) Kusham Sharma ) for the Crown and ) ) ) Marcus Xavier Baird ) Evan Roitenberg ) Laura Robinson ) Vanessa Gama ) for the Accused ) ) Reasons for Decision delivered: ) March 4, 2013 HEINRICHS P.J. INTRODUCTION [ 1 ] Marcus Baird is pending on a number of charges from 3 separate incidents. The allegations from three separate complainants have resulted in a number of charges for alleged incidents on February 26, 2011, April 4, 2011 and April 5, 2011.

Two separate trials by a Provincial Court Judge have been set for March 11 - 14, 2013 (on the February 26, 2011 allegations) and for 10 days between June 3 and 14, 2013 (on the April 5, 2011 allegations). Those dates were set in the spring of 2012. [ 2 ] In October, 2012, charges were laid with respect to the April 4, 2011 allegations and on February 5, 2013, the Crown laid a new information with 13 counts. It includes all three incidents (and has some new counts).

The Crown’s intention now is to proceed on the new information in one trial, 15 - 20 days in length, at which trial they intend to introduce similar fact evidence (the evidence of all three complainants from February, 2011 and April, 2011). If allowed, the March, 2013 trial dates would be cancelled and possibly the June trial dates; the month long trial would likely take place early in 2014. [ 3 ] On February 5, 2013, the same day the new information was laid, counsel for Marcus Baird filed a motion asking this Court to sever counts 1 - 3, 4 - 7 and 8 - 13, in other words, by complainant and date.

As I had been assigned to be judge for the trial scheduled for March 11 - 14, 2013, the motion came before for me. Counsel have agreed that I have the jurisdiction to rule on this severance motion. THE CRIMINAL CODE CHARGES [ 4 ] The charges originally laid with respect to February 26, 2011 are: 1. Break and enter with the intent to commit an indictable offence, contrary to section 348(1)(

a) C.C.C.; and 2. Having a face masked with intent to commit an indictable offence, contrary to section 351(2) C.C.C.

[ 5 ] The charges from February 26, 2011 on the joint information are: 1. Break and enter with intent to commit an indictable offence, contrary to section 348(1)(

a) C.C.C.; 2. Break and enter with intent to commit a sexual assault, contrary to section 348(1)(

b) C.C.C.; and 3. Having a face masked with intent to commit a sexual assault, contrary to section 351(2) CC.C. [ 6 ] The charges originally laid with respect to the April 4, 2011 are: 1. Committing a sexual assault, contrary to

section 271 C.C.C.; 2. Break and enter with intent to commit an indictable offence, contrary to section 348(1)(

a) C.C.C.; and 3. Committing voyeurism by surreptitiously observing or visually recording someone, contrary to section 162(1) C.C.C. [ 7 ] The charges from April 4, 2011 on the joint information are: 1. Break and enter with the intent to commit an indictable offence, contrary to section 348(1)(

a) C.C.C.; 2. Break and enter commit sexual assault cause bodily harm, contrary to section 348(1)(

b) C.C.C. and 348(1)(

d) C.C.C.; 3. Having his face masked with intent to commit a sexual assault, contrary to section 351(2) C.C.C.; and 4. Committing voyeurism by making a visual recording while sexually assaulting someone, contrary to section 162(1) C.C.C. [ 8 ] The charges originally laid with respect to April 5, 2011 are: 1. Committing a sexual assault, contrary to

section 271 C.C.C.; 2. Attempting to choke with intent to enable himself to commit the indictable offence of sexual assault, contrary to

section 246(

a) C.C.C.; 3. Without lawful authority confining someone, contrary to section 279(2) C.C.C.; 4. Committing voyeurism by surreptitiously observing or visually recording someone, contrary to section 162(1) C.C.C.; 5. Having a face masked with intent to commit an indictable offence, contrary to section 351(2) C.C.C.; and 6. Knowingly uttering a threat to cause death or serious bodily harm to someone, contrary to

section 264.1(1)(

a) C.C.C.. [ 9 ] The charges from April 5, 2011 on the joint information are: 1. Break and enter with intent to commit an indictable offence, contrary to section 348(1)(

a) C.C.C.; 2. Break and enter with intent to commit a sexual assault, contrary to section 348(1)(

b) C.C.C. and 348(1)(

d) C.C.C.; 3. Having his face masked with intent to commit an indictable offence of sexual assault, contrary to section 351(2) C.C.C.; 4. Committing voyeurism by making a visual recording of someone while sexually assaulting her, contrary to section 162(1) C.C.C.; and 5. With intent to enable or assist himself commit the indictable offence of sexual assault did attempt to choke, suffocate or strangle someone with his hands in order to attempt to render her insensible, unconscious, or incapable of resistance, contrary to

section 246(

a) C.C.C.; and 6. Knowingly uttering a threat to someone to cause death or bodily harm to her, contrary to

section 264.1(1)(

a) C.C.C. THE ISSUE [ 10 ] Section 591(3) (

a) of the Criminal Code of Canada is the applicable section. The Court, if “it is satisfied that the interests of justice so require”, may order that Marcus Baird be tried separately on any or all of the three alleged incidents that form the thirteen charges in the joint indictment. The Crown and Counsel for the accused agree that the options this Court has for severance in this particular case include: 1. Not to sever any of the counts and have one trial; 2. Sever the counts into three separate trials:

a) the February 26, 2011 allegations (Counts 1 - 3);

b) the April 4, 2011 allegations (Counts 4 - 7); and

c) the April 5, 2011 allegations (Counts 8 - 13). 3. Sever the counts relating to the allegations of one particular date, but not sever the counts on the other two allegations. In this

scenario, the most obvious counts to be severed are from the February 26, 2011 allegations (Counts 1 - 3), leaving the April 4 and 5, 2011 allegations on one information (Counts 4 - 13). Given the evidence the Crown believes it will be able to present, both the Crown and counsel for Marcus Baird agree that there if a more significant factual nexus between the April 4 and 5, 2011 allegations than either of those two incidents have with the February 26, 2011 allegations.

THE HISTORY OF THE CHARGES [ 11 ] There is an unusual aspect to this severance motion, as the Crown has only very recently laid the joint information and advised defence counsel of its intention to proceed on one trial, long after trial dates had been agreed upon for two of the sets of allegations. The laying of this new information and the severance motion which has been filed as a result, comes five weeks prior to the start of the first trial.

As a result, we must review the history of the court proceedings to this point in detail. [ 12 ] On May 25, 2011, the two initial charges from the February 26, 2011 incident were laid. Marcus Baird was arrested on those charges on July 24, 2011. The charges were remanded from time to time until February 16, 2012, when a preliminary hearing date was set for October 17 and 18, 2012. [ 13 ] On August 25, 2011, the original charges for the April 5, 2011 incident were laid.

On these charges Marcus Baird was arrested on September 22, 2011, and was on remand until February 16, 2012, when a preliminary hearing date was set for November 28 – 30, 2012. [ 14 ] Prior to these dates being set in February, 2012, extensive contact and correspondence back and forth between the Crown and defence counsel’s offices and the trial coordinators’ office took place. Several times earlier dates were offered and discussed and even accepted for two separate preliminary hearing dates for the two separate matters.

Unfortunately whenever there was an attempt to confirm the agreed upon dates, they had been reserved by someone else or set for someone else, or counsel was no longer available for the proposed dates. The dates they selected included April 24 – 25, 2012; May 15, 17 and 18, 2012; and August 27 – 29, 2012. [ 15 ] Marcus Baird, after being informed of the dates that were actually set, then requested to waive the preliminary inquiries and asked to proceed directly to a Provincial Court Trial on each matter.

The Crown was advised of this on March 8, 2012 and further discussions and correspondence resulted in proposed dates of March 11 - 22, 2013 for the trial on the April 5, 2011 charges and April 15 - 19, 2013 on the February 26, 2011 charges. Counsel then became aware of the fact that not all of the March, 2013 dates would be available and the trial would have to be continued on some later dates. They agreed to find uninterrupted dates and selected the dates of June 3 - 7 and 10 - 14, 2013. Those are the dates presently set for the six count information relating to the April 5, 2011 charges.

As a result, counsel also agreed to move up the trial date for the February 26, 2011 allegations, setting it for March 11 - 14, 2013. [ 16 ] On October 25, 2012, the original charges relating to the April 4, 2011 incident were laid. Marcus Baird was arrested on those charges on November 6, 2012. [ 17 ] At a November 22, 2012 Case Management Meeting, the Crown advised that they were considering laying a joint information for all of the April, 2011 offences, as they were considering a motion for similar fact evidence with respect to the allegations of April 4 and 5, 2011.

When Counsel met on January 23, 2013, the Crown advised Defence Counsel that they intended on prosecuting the April 4 and 5, 2011 matters together; however, on January 25, 2013, the Crown advised Defence Counsel that they would be laying a new information to join all three matters. That information was sworn on February 5, 2013. As has been noted, that same day counsel for Marcus Baird filed the motion for severance. THE LAW ON SEVERENCE [ 18 ] In R. v.

Last , a 2009 decision, the Supreme Court of Canada explained that the test in section 591(3) is a balancing act which has to take a number of factors into account: The interests of justice encompass the accused's right to be tried on the evidence admissible against him, as well as society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.

Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed when deciding whether to sever or not. The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial. It is important to recall that the interests of justice often call for a joint trial.... Severance can impair not only efficiency but the truth-seeking function of the trial. [ 19 ] The Court then went on to set a list of factors, noting that this is not an exhaustive list: 1.

The general prejudice to the accused; 2. The legal and factual nexus between accounts; 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; 10. The existence of antagonistic defences as between co-accused persons. [ 20 ] All of the factors, except for the last one which deals with co-accused persons, are relevant with respect to Marcus Baird’s charges.

GENERAL PREJUDICE TO THE ACCUSED [ 21 ] When charges from different incidents or different complainants are joined and heard together, there is a risk that the trier of fact - either a jury, or in this case the trial judge - will wrongly use the evidence presented to draw an adverse inference against the accused on other charges. There is the possibility of “cross-pollination” on the credibility assessments or that prohibited propensity reasoning would be used.

As Marcus Baird has elected to be tried by a Provincial Court Judge, there is a lessened risk of this happening than with the jury; however as noted by the Alberta Court of Appeal in R. v. Villeda , judges may be able to instruct themselves but are not invincible just because of their legal training and expertise. In this particular case, the allegations from April 5, 2011 are far more serious than the other two incidents and the danger exists that the trier of fact may be influenced by the evidence presented on those charges when considering the evidence of the other two allegations.

As the Alberta Court of Appeal stated, in R. v. Villeda , “Human nature and its attendant weaknesses and vulnerabilities may, on occasion, intrude upon the most rigorous and conscientious fact-finding". THE LEGAL NEXUS BETWEEN THE COUNTS [ 22 ] What are the legal issues common to the three incidents? The Crown has suggested that in this case they include intent, identification, Charter issues related to the seizure of the exhibits, the voluntariness of the accused’s statements, credibility findings and the admissibility of expert evidence.

Counsel for Marcus Baird has pointed out that there are different police officers involved in the various investigations and there are different labs and DNA experts involved. While there is some overlap, it would not be all of the same witnesses at each trial if they were severed. As well Defence Counsel has noted that the Charter issues relating to the search and seizure from Marcus Baird's vehicle only concern the April 4 and 5, 2011 charges.

THE FACTUAL NEXUS BETWEEN THE COUNTS [ 23 ] The Crown has submitted that the factual nexus between all three incidents is significant and as between April 4 and 5, 2011 incidents uncannily so. The Crown said that with respect to all three incidents the evidence will show that: 1. Each incident consists of a break, enter and assault; 2. The victim in each incident is a single, vulnerable woman; 3. Each victim appears to have been selected and watched before the attack; 4. All three incidents happened when victim was coming home by car in the early hours of morning; 5.

All three attacks occurred after the victim had parked her car and was attempting to enter her garage or apartment building; 6. All three victims described the attacker as being someone unknown to them, and was approximately 6 feet tall with a slender build; 7. All three victims described the attacker is wearing dark pants and a dark hoodie, worn or tied down in such a way as to disguise his face; 8. All three attacks took place in the City of Winnipeg within six weeks of each other; 9. Each incident took place within close proximity to residences frequented by Marcus Baird; and 10.

Marcus Baird's DNA is linked to something at each incident. [ 24 ] Specific to the April 4 and 5, 2011 incidents, the Crown submitted that the evidence will also be that: 1. Both victims smelled alcohol on the attacker; 2. Both victims saw the attacker wearing whitish gloves with blue rubber on the fingertips of the gloves; 3. Both victims saw the attacker use a small video camera, held in one hand to film while he was sexually assaulting them; 4. Both victims were carrying items from their car into the apartment block, making them more vulnerable; 5.

Both incidents happened in the early hours of the morning, within 24 hours of each other; 6. The Winnipeg Police Service K-9 unit was utilized in both investigations and the police service dog, Reya, followed a scent to the location where a vehicle had recently been parked near the apartment building. [ 25 ] Defence Counsel submitted that there are differences that must be noted: 1. The three incidents happened in different parts of the City of Winnipeg and involved three separate complainants who did not know each other;

2. There are significant differences concerning the allegations of the February 26, 2011 incident and the two April incidents:

a) In the February incident there was no violence or threats and the victim states that she was not touched by the attacker;

b) The February incident happened in the detached garage of a house, not at an apartment block;

c) In the February incident there is no suggestion of the attacker wearing gloves, having a video camera or leaving in a vehicle that was parked close by. [ 26 ] Defence Counsel conceded that there is a more substantial factual nexus between the April 4 and 5, 2011 incidents than either of them has with the February incident.

THE COMPLEXITY OF THE EVIDENCE [ 27 ] Defence Counsel submitted that the DNA evidence in each of the three cases is distinct and raises different issues; to have all of the experts testify to the different DNA findings and then have the Court deal with all of the various arguments will be difficult to manage properly and fairly. The Crown has pointed out that some of the same experts will testify as to the evidence on more than one incident and to attempt to separate the evidence for each trial could lead to inconsistent verdicts.

They argued therefore, that hearing all of the DNA evidence at one trial would be the most sensible approach. As well, they suggested that severance would result in the Court not getting as complete a picture as it would if there was one trial. WHETHER THE ACCUSED INTENDS TO TESTIFY ON ONE COUNT BUT NOT ANOTHER [ 28 ] Defence Counsel has advised the Crown and confirmed in argument before this Court that they intend to call alibi evidence with respect to the April 5, 2011 incident. As a result, they suggested that Marcus Baird may wish to testify only with respect to the April 5, 2011 counts.

The Supreme Court of Canada in R. v. Last stated the following: ... the trial judge must simply satisfy him - or herself that the circumstances objectively establish a rationale for testifying on some counts but not others. The burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to this testimonial intention. The information could consist of the type of potential defences open to the accused or the nature of his testimony….

However, the accused is not bound by his stated intention; he remains free to control his defence as the case unfolds, in the matter he deems appropriate. [ 29 ] The Crown noted that it is still not clear if Marcus Baird actually intends to testify with respect to the April 5, 2011 charges and pointed out that the particulars of the potential alibi have yet to be disclosed to the Crown in spite of their requests for it. Defence Counsel stated in Court that they will provide the particulars of the alibi evidence in a timely fashion so that the Crown can investigate.

THE POSSIBILITY OF INCONSISTENT VERDICTS [ 30 ] If severance is granted with respect to any or all of the three incidents, there is the possibility of inconsistent verdicts or rulings on any procedure or motions throughout the trials. The Crown suggested that this is particularly true in this case which involves the similar fact evidence, DNA evidence and expert testimony, Charter arguments, and credibility of witnesses.

While this is a legitimate concern, it bears noting that the evidence will not be exactly the same for each separate incident and a judge is always able to accept all, part or none of any witness’ evidence; when the evidence on each particular incident is considered by the judge hearing that matter, there may be good reasons for finding the accused guilty on some charges and not on the others.

THE DESIRE TO AVOID A MULTIPLICITY OF PROCEEDINGS AND THE LENGTH OF THE TRIAL HAVING REGARD TO THE EVIDENCE TO BE CALLED [ 31 ] The end result of this particular severance application will be that Marcus Baird will have one, two or three trials. The Crown has signified its intention to attempt to introduce similar fact evidence at each trial if the severance application is successful. They estimated that in order to do so they will need three to four weeks for each trial that is set. They intend on calling the complainants from each incident at each trial.

The Crown submitted that as a result, severance will lead to more delay, an overlap of witnesses testifying in more than one trial and, likely, a more significant emotional toll on the complainants. As well, there will be a repeat of some of the legal arguments concerning the expert evidence and Charter issues. They suggested that the duplication is not necessary and the addition costs of not having one joint trial will be significant and is contrary to “society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner.” (To use the words of the S.C.C. in R. v.

Last .) [ 32 ] Defence Counsel, in argument, pointed out that Crown and Defence have not even discussed the possibility of coming to some agreements which could simplify some of these issues and shorten the necessary trial time. It may be possible that counsel could agree to have any rulings made at the initial trial apply to any further trials. THE USE OF SIMILAR FACT EVIDENCE AT TRIAL [ 33 ] The Crown has made it clear that they intend to have the evidence on each of the three incidents considered as similar fact evidence on the other two incidents.

This application will be made before the trial judge - or trial judges, if there is more than one trial. At this stage, I am required to consider the possibility of success with respect to that application. It is not for me to decide whether or not it will be successful, however, if I am satisfied that the application is meritorious and might succeed it will be a significant consideration in whether or not the charges should be tried together.

[ 34 ] The Supreme Court of Canada in R. v. Arp , stated the following: “In

summary, in considering similar fact evidence, the basic rule is that the trial judge must first determine whether the probative value of the evidence outweighs its prejudicial effect.” Cory, J. then offered some suggestions to assist trial judges in applying this rule: 1. Generally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order to ensure that the similar fact evidence has the requisite probative value of outweighing its prejudicial effect to be admissible.

The similarity between the acts may consist of a unique trademark or signature on a series of significant similarities. 2. In assessing the similarity of the acts, the trial judge should only consider the manner in which the acts were committed and not the evidence as to the accused's involvement in each act. 3.

There may well be exceptions but as a general rule if there is such a degree of similarity between the acts that it is likely that they were committed by the same person then the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and it may be admitted. 4.

The jury will then be able to consider all of the evidence related to the alleged similar acts in determining the accused's guilt for any one act. [ 35 ] Again, it is important to be reminded that the burden of having similar fact evidence admitted at a trial lies with the Crown, but the motion for severance is for the accused to satisfy the Court on a balance of probabilities that severance is required in the interests of justice. [ 36 ] The Crown has advised this Court that they intend to make the application for similar fact evidence for two different reasons.

Regarding the April 4 and 5, 2011 incidents, the Crown intends on using the evidence from April 5 to prove identity with respect to the April 4, 2011 incident. Then with respect to the February 26, 2011 incident, the Crown intends on using the evidence surrounding the charges involving April 4 and 5, 2011 to prove that Marcus Baird had a sexual intent when he broke into the complainant’s garage on the February 26 incident.

They suggested that using similar fact evidence for this purpose has a much lower threshold than for proving identification. [ 37 ] Defence Counsel argued that nothing would prevent the Crown from bringing a motion for similar fact evidence at each trial, if the incidents were severed. As well, they suggested that the February 26, 2011 incident simply doesn’t have the “high degree of similarity” to the April, 2011 incidents that the S.C.C. states the law requires.

In distinguishing the February, 2011 incident, Defence Counsel also acknowledged that there are more similarities between the two April, 2011 incidents. THE POTENTIAL PREJUDICE TO THE ACCUSED WITH RESPECT TO THE RIGHT TO BE TRIED WITHIN A REASONABLE TIME [ 38 ] Defence Counsel submitted that if there is no severance of the three incidents, Marcus Baird's right to be tried within a reasonable time will be prejudiced. In making this argument they point to the fact that they have been attempting to set preliminary hearing dates and then trial dates for quite some time and have encountered many complications.

The history of the proceedings which was earlier set out in detail supports this. Defence Counsel pointed to the fact that there were six Case Management Conferences and only very recently was the intention to join the counts or proceed with a motion for similar fact evidence even mentioned by the Crown. The trial for the earliest of the incidents, from February 26, 2011, is set to proceed one week from now. Defence counsel noted that the right to be tried within a reasonable time is one of the factors set out by the S.C.C. when considering severance; additionally, it is a right set out in

section 11(

b) of the Charter . [ 39 ] The Crown argued the opposite. If there is severance, then multiple three – four week trials will need to be set. This they submitted, will result in more than delay than if there is one lengthy trial set for early in 2014. THE BALANCING OF THE FACTORS TO DETERMINE IF THE INTERESTS OF JUSTICE REQUIRE SEVERANCE [ 40 ] The charges from April 4 and 5, 2011 will be examined first. The factors that favour severance of these two incidents are that: 1.

There is a greater likelihood that the trial judge will wrongly use the evidence of the one set of charges to draw an adverse inference against Marcus Baird on the other charges. In this case the allegations concerning the April 5, 2011 incident are far more serious that the allegations of the night prior, and so this is a real concern. 2. Defence Counsel has advised that they may be calling alibi evidence on the April 5, 2011 incident. The Crown has pointed out that they still don’t know what this evidence will consist of, and neither does the Court.

While Defence Counsel has satisfied the required threshold for the Court to consider this as a factor, the Court can also take note of the fact that alibi evidence does not always involve the calling of the accused to give that evidence. As well, in this particular case the Crown is convinced that the same person committed the offences on April 4 and 5, 2011.

If the alibi evidence concerning the April 5, 2011 incident, presented on behalf of Marcus Baird, is accepted by the Court, it may mean that there is reasonable doubt that he committed either the April 4 or 5, 2011 offences. [ 41 ] The factors that favour the charges from these two incidents not being severed and being heard in one trial are as follows: 1. While the April 5, 2011 incident is currently set for trial for 10 days between June 3 and 14, 2013, the Crown’s position now is that this will now not be sufficient time.

Defence Counsel conceded that this may well be the case if a motion for similar fact evidence at that trial was successful. As well, the April 4, 2011 incident has not yet been set for trial. Defence Counsel noted that they have just received some further disclosure on this incident and will need time to have their own expert review it. They would not be in a position to have this matter proceed together with the other charges currently set for the June dates, if the charges proceeded on a joint information. As a

result, if the April 4 and 5, 2011 counts were not severed and there was one trial on those charges, the Crown’s argument that this would result in less delay than having two separate trials on the April 4 and 5, 2011 incidents has merit to it. 2. One three - four week trial instead of two trials of that length will be significantly more “cost-effective”. 3. There is an overlap in some of the legal arguments that will be heard for these two incidents. The Charter issues, including the question of the search and seizure, relate two both sets of charges. There is a legal nexus between these two sets of charges. 4.

Some of the witnesses that will testify would have been required at both trials. In particular, the complainants would not have to testify an extra time. 5. There is a significant factual nexus between the charges. This is a case where it appears that there is a “high degree of similarity” in many ways, between the two incidents. Cory, J. in R. v.

Arp stated: “The similarity between the acts may consist of a unique trademark or signature on a series of significant similarities.” Based on the information the Crown has which they will tender in evidence, it appears that they have a strong argument to make with respect to similar fact evidence being admitted for the April 4 and 5, 2011 allegations. It is clearly a situation where a trial court could decide that the evidence has the necessary probative value which outweighs its prejudicial effect. 6.

While Defence Counsel submitted that these two offences occurred in different parts of the City of Winnipeg, the Crown pointed out that there is evidence that the attacker came and went from these locations in a vehicle and these two locations are within a 30 minute drive from each other. [ 42 ] In balancing all of the factors, this Court is satisfied that the interests of justice do not require severance of the April 4 and 5, 2011 counts.

There will be less delay in concluding these matters, witnesses will not have to testify twice, legal arguments will need to be made only one time, it will be more cost effective and the Crown’s motion for similar fact evidence appears to be strong. It is in the interests of justice that they be heard together. [ 43 ] What remains then, is whether the February 26, 2011 counts should be severed from the April, 2011 charges. [ 44 ] The factors that favour not severing these charges and having one trial with respect to all of the counts are as follows: 1.

One trial will save having the witnesses testify at two trials. 2. There are some legal issues common to all three trials; if there is one trial these issues will only need to be dealt with once. 3. There will be no risk of an inconsistent ruling or verdict. 4. There will be significantly less trial time required. 5. The Court will only have to deal with one motion for similar fact evidence. [ 45 ] The factors that favour severing the charges and having the February 26, 2011 counts heard separately from the April, 2011 charges are as follows: 1.

There is less risk that the trier of fact will wrongly use of the evidence presented with respect in the April, 2011 incidents to draw an adverse inference against the accused on the February 26, 2011 charges. 2. Some of the legal arguments relate only to the April 4 and 5, 2011 incidents and as a result the separate trial on the February 26, 2011 incident will be less complex. 3. The Crown intends to make a motion for similar fact evidence; based on the information they have presented to the Court so far, it is not a foregone conclusion that this motion will be successful.

While the April 4 and 5, 2011 incidents suggest a “high degree of similarity” between them, it is not that clear cut between the April, 2011 incidents and the February 26, 2011 incident. The Crown has specifically suggested that they intend on using the evidence from the April, 2011 incidents to prove that the accused’s breaking into the garage of the residence on February 26, 2011 was sexually motivated. Of note is that one of the unique features of the April, 2011 incidents is the attacker’s use of a video camera held in his hand while assaulting the victims.

The Crown has pointed out in their argument that Marcus Baird purchased a device (and memory card) similar to what was used on April 4 and 5, 2011 incidents at a Walmart store on April 1, 2011. Based on this information, it is clear that Marcus Baird did not have this particular item on February 26, 2011. As well, the information presented does not disclose that the attacker on February 26, 2011 was wearing gloves and there is no evidence that he left in a vehicle that had been parked close by.

Many of the features of a “unique trademark or signature”, such as exist with the April, 2011 incidents, do not appear to be present. 4. The February 26, 2011 charges are the oldest allegations in time, the first charges which were laid, and the first charges for which Marcus Baird was arrested. The trial on these charges was set to commence in one week. The potential prejudice to Marcus Baird with respect to the right to be tried within a reasonable time is greatest with respect to these particular allegations.

As the April 5, 2011 incident will not proceed to trial in June 2013, there is now the potential for up to 14 days of trial being available for these charges in March and June, 2013. Defence Counsel has indicated that they are prepared to use all of that time for this particular trial, if necessary. In spite of the motions and evidence the Court may hear in this trial, it may be enough trial time to conclude this matter.

If not, this Court is satisfied that enough other time can be made available during the next few months that this trial can be concluded before the end of June, 2013. [ 46 ] Balancing all of these factors, this Court is satisfied that, on a balance of probabilities, the interests of justice require that the February 26, 2011 counts be severed and be dealt with by way of a separate trial. Therefore, counts 1 – 3 are to be severed from the 13 count joint information. They are to proceed to trial on March 11, 2013, or on such dates as Counsel agree. Counsel and the Court will

need to discuss how the March 11 - 14, June 3 - 7 and June 10 - 14, 2013 dates can best be used. _________________________ HEINRICHS P.J. Cases referred to: 1. R. v. Last 2009 CarswellOnt 6137, 2009 SCC 45, J.E. 2009-1893, 69 C.R. (6th) 1, 247 C.C.C. (3d) 449, 311 D.L.R. (4th) 193, 394 N.R. 78, 255O.A.C. 334, [2009] 3 S.C.R. 146, 102 O.R. (3d) 544 (note) 2. R. v. Villeda 2011 CarswellAlta 436, 2011 ABCA 85, [2011] A.W.L.D. 1800, 269 C.C.C. (3d) 394, 502 A.R. 83, 517 W.A.C. 83 (Alta CA) 3. R. v.

Arp (SCC), 1998 CarswellBC 2545, 232 N.R. 317, 20 C.R. (5th) 1, 166 D.L.R. (4th) 296, 129 C.C.C. (3d) 321, 114B.C.A.C. 1, 186 W.A.C. 1, [1998] 3 S.C.R. 339, 58 B.C.L.R. (3d) 18, [1999] 5 W.W.R. 545, [1998] S.C.J. No. 82