R. v. Chien, 2021 BCPC 385

Citation: R. v. Chien 2021 BCPC 385 Date: 20210901 File No: 64588-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KUO LIANG PAUL CHIEN PUBLICATION BAN Pursuant to s. 486.4 (1) of the Criminal Code of Canada REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. VANDOR Counsel for the Crown: K. Hennessy Counsel for the Defendant: J. Chak Place of Hearing: Richmond , B.C. Date of Hearing: September 01, 2021 Date of Judgment: September 01, 2021

[ 1 ] THE COURT: This decision is subject to a publication ban pursuant to s. 486.4 (1) of the Criminal Code . I will not refer to case citations in this decision. Should a transcript of this decision be ordered, I reserve the right to add case citations and edit for style. Overview [ 2 ] The accused applicant, Kuo Liang Paul Chien, is charged by indictment with two counts of sexual assault contrary to s. 271 of the Criminal Code .

The indictment alleges that he did sexually assault K.N. from the 1st day of January 2013 to the 1st day of January 2015 (“Count 1”) and that he did sexually assault M.T. on or about the 7th day of June 2018 (“Count 2”). [ 3 ] The accused applies under s. 591(3) of the Criminal Code to sever these counts and for an order directing that he be tried separately on each count. This would result in two separate trials. The Crown is opposed to this application and argues that the two counts ought to be tried together. [ 4 ] I grant the application for severance. These are the reasons for my decision.

Legal Principles on Severance Application [ 5 ] Section 591(3) (

a) of the Criminal Code governs the joinder of counts in an indictment. On a severance application brought by the accused, the onus rests on the applicant who must establish on a balance of probabilities that the interests of justice require severance. These interests are broadly defined as expressed by the Supreme Court of Canada in R. v.

Last , 2009 SCC 45 at paragraph 16 : [16] …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. [ 6 ] The court went on to identify a non-exhaustive list of factors to consider: 1. The general prejudice to the accused; 2. The legal and factual nexus between the counts; 3. The complexity of the evidence; 4. Whether the accused intends to testify on one count but not another; 5. The possibility of inconsistent verdicts; 6.

The desire to avoid a multiplicity of proceedings; 7. The use of similar fact evidence at trial; 8. The length of the trial having regard to the evidence to be called; 9. The potential prejudice to the accused with respect to the right to be tried within a reasonable time; and 10. The existence of antagonistic defences as between co-accused person. ( Last at para. 18 ; R. v.

Legebokoff , 2014 BCSC 705 ) [ 7 ] In the present case, the considerations set out in (5) and (10) do not arise to the extent that this indictment only involves one accused. [ 8 ] The parties have also raised another factor identified in R. v. Legebokoff , 2014 BCSC 705 , which is the extent of media interest. Below I consider and balance these factors as it relates to this application.

Analysis Legal and Factual Nexus between Counts [ 9 ] To begin with, I accept that counts should usually be tried together where there is a close nexus in time and place of the events set out in the charges: Legebokoff , para. 41 . In assessing the legal and factual nexus between the two counts in this indictment, I consider the extent of the temporal and special connection between the charges as well as the nature of the charges and anticipated defences. [ 10 ] I find that the factual and legal nexus between the two counts is thin.

The fact that the two incidents occurred in Richmond is of limited significance in this case given that they occurred in different spa locations anywhere from three years to five years apart. [ 11 ] The Crown argues that the temporal gap between the counts is attenuated by the strong factual nexus of the accused working in the same job. There is some merit to this argument. This is not a situation where the two allegations arise out of very different circumstances. Here, the accused is a massage therapist. The allegations involve complainants who received massages.

Both allegations involve touching of breasts and vagina during a massage by the accused from whom the complainants had received massages before. This is a one-off allegation for each complainant. Both counts involve allegations of sexual assault in the context of a professional

setting. [12] Both counts allege the same Criminal Code charge of sexual assault. While the charges are similar, the theory of the defence iscompletely different. Consent is at issue in the Count 2 and identification is at issue in the Count 1. [13] As the defence rightly points out, the legal nexus is attenuated because the defences are different. As it relates to Count 1, theaccused seeks to challenge his identification as the perpetrator of the alleged sexual assault.

As it relates to Count 2, the defence israising the issue of consent and an honest mistaken belief in communicated consent. [14] The parties address several cases in support of the Crown's position that this factor weighs against severance and the defence'sposition that this factor weighs in favour of severance. I refer to the three main cases: Legebokoff, R. v. Mavros, 2017 BCCA 435, andLast.

I distinguish Legebokoff and Mavros where the applications for severance were denied – on the strength of the legal and factualnexus between the counts. [15] In Legebokoff, all four murders occurred over a period of 14 months, and the period of time between the last three counts wassmall (i.e. eight days between Counts 2 and 3 and 54 days between Counts 3 and 4).

In Mavros, there was DNA evidence of semenlinking the two counts which were approximately 14 months apart (i.e. between July 2010 and September 2011). [16] In my view, the most analogous case is Last where the trial judge's decision to deny severance was overturned by the SupremeCourt of Canada, which held that the trial judge acted unjudicially in denying severance, set aside the convictions, and remitted thematter for the counts to be retried separately. [17] In Last, the accused was charged on a single indictment with counts related to two sexual assaults and breaches of undertakings.Both assaults took place in the same city approximately one month apart.

In the first incident, the accused allegedly threatened thevictim with a gun, choked her and repeatedly sexually assaulted her. In the second, the accused accompanied a mutual friend to herapartment and when the mutual friend left, the accused struck her in the head with a mug, choked her unconscious, and sexually assaultedher with an object while unconscious. [18] In Last, the trial judge refused severance in part because he found compelling a nexus in time and place between the twoincidents (i.e. two assaults occurred in the same city one month apart).

The majority in the Court of Appeal agreed with the trial judge onthis point. However, the dissent of the Court of Appeal found that the nexus to be, "exceedingly weak." The Supreme Court of Canadaagreed with the dissent in the Court of Appeal finding that the nexus between the two counts was "extremely thin." I am applying thereasoning in Last in arriving at my conclusion. [19] On balance, I conclude that the legal and factual nexus does not support the continued joinder of the counts to maintain theintegrity of the truth-seeking function. This factor weighs in favour of severance.

Use of Similar Fact Evidence at Trial [20] The Crown intends to apply to have the evidence on the counts in this indictment used as evidence of similar fact in considerationof the other count. The Crown seeks to adduce similar fact evidence to establish the actus reus of the offences, the mens rea of theoffences, and the credibility of the complainant. Similar Fact Evidence [21] The leading cases on similar fact evidence are R. v. Arp, (SCC), 1998 3 SCR 339 and R. v. Handy, 2002 SCC56.

Arp deals with similar fact evidence where the issue was the identity of the offender, as is the case here in relation to Count 1. [22] Handy affirms the findings in Arp and deals with similar fact evidence for a purpose other than to prove identity, namely that theaccused had a propensity to inflict painful sex when aroused and was not inclined to accept no for an answer.

Both cases are relevant toCount 1 and Count 2. [23] Similar fact evidence is presumptively inadmissible unless it meets the high test for admission as developed in Arp and Handy.The prejudice that must be overcome by the probative force of the evidence includes both moral prejudice and reasoning prejudice.

To beadmissible, the evidence must support the double inference: (1) that the accused has a situation specific propensity to act in a certainway; and (2) that they did so in the circumstances of this case: Handy, para. 100. [24] In order to determine whether the probative value of the similar fact evidence outweighs its prejudicial effect, it is necessary tofirst determine the probative value, which requires an assessment of the connectedness that is established between the similar factevidence and the offences alleged: Arp, para. 44. [25] Where similar fact evidence is adduced on the issue of identity, as will be required in regards to Count 1, there must be highdegree of similarity between the acts for the evidence to be admitted.

Arp provides the following examples at paragraph 45: 45 …For example, a unique trademark or signature will automatically render the alleged acts "strikingly similar" and therefore highlyprobative and admissible. In the same way, a number of significant similarities, taken together, may be such that by their cumulativeeffect, they warrant admission of the evidence.

Assessment Threshold in the context of a severance application [26] Although the Crown is seeking to adduce similar fact evidence, it is not clear to me whether the circumstances surrounding thecharges are sufficiently similar in character to have supported a similar fact evidence application as it relates to the issue of identity thatis engaged in Count 1.

[ 27 ] However, I do not need to decide the Crown's application right now. Rather, I must assess whether the application would be successful in the context of deciding the defence's severance application. [ 28 ] The parties dispute the threshold for this assessment. The Crown argues that the threshold should be "possibility” or “some possibility of success," R. v. Blacklaws , 2013 SCC 8 , which adopts the dissent of Chief Justice Finch in R. v. Blacklaws , 2012 BCCA 217 . [ 29 ] The defence argues that the threshold should be "likely”, which is more than a mere possibility of success: Last at para. 34 .

Their positions are reflected in these Supreme Court of Canada decisions. I apply the threshold set out in the most recent Supreme Court of Canada to address this issue. [ 30 ] Thus, in the context of deciding whether to sever multiple counts, I only need to assess whether the Crown's application to admit similar fact evidence " could possibly be met in the future: R. v. Blacklaws , 2012 BCCA 217 , at para. 42 .

Blacklaws went on to say at para. 43: [43] …A trial judge does not need to go so far as to predict the result of such an application at the time of the severance application... [they] need only assess whether it has some possibility of success, based on the submissions that the parties have already made. [ 31 ] (These paragraphs are drawn from the dissent of Chief Justice Finch which was adopted by the Supreme Court of Canada in R. v. Blacklaws , 2013 SCC 8 ).

Possibility of success where Identity is at Issue [ 32 ] I find that, at this stage of proceedings, in the context of a severance application, I am satisfied that there is “some possibility” that the Crown's application might succeed given the Crown's submissions regarding the degree of similarity between the acts. [ 33 ] The allegations are of sexual assaults that occurred during a massage.

As it relates to Count 1, the Crown anticipates that the evidence will show that K.N. had a massage from the accused and during that massage the accused inappropriately touched her breasts and genitals and fingered her vagina. As it relates to Count 2, the Crown anticipates that the evidence will show that M.T. had a massage from the accused and during that massage, the accused inappropriately touched her breasts, nipples and vagina after she requested that he stop. [ 34 ] As I understand the Crown's submissions, the Crown is not advancing a theory that the two incidents were part of the same transaction.

This means that the trier of fact would not need to know about one in order to understand the other. [ 35 ] Rather, the Crown argues that the alleged acts were strikingly similar to the extent that both complainants are female of Asian ethnicity. They both allege being touched on their breasts and vagina area in the context of a professional massage. The accused was working in a professional capacity as a masseuse at the locations attended by the complainants.

He provided massages to both complainants on previous occasions in Richmond. [ 36 ] Although both allegations are of sexual assaults that occurred in the context of a massage, the allegations against M.T. does not involve digital penetration. [ 37 ] In Arp at paragraph 53 , the Court explained that in a multi - count indictment, the link between the accused and any one count will be relevant to the issue of identity on the other counts which disclose a striking similarity in the manner in which those offences were committed.

The Court in Arp cautioned, however, that there needs to be a signature modus operandi that is strikingly similar to that person and it has to be objectively improbable that it is a coincidence. [ 38 ] The parties dispute whether the test in Arp has been met in this case. The defence argues that digital penetration is a distinctive feature in Count 1 that is absent from Count 2. The Crown argues that a number of significant similarities, which taken together, are such that by their cumulative effect they warrant admission of the evidence.

The defence argues that something more than a masseuse touching the breasts and vaginal area of clients during a massage is needed in these circumstances. [ 39 ] I accept the defence's argument that before the Crown can use similar fact evidence for the actus reus , it has to make sure that it is using it against the right person. The issue of identity in Count 1 needs to be resolved first before a trial judge can address the issue of using similar fact evidence for the actus reus .

As set out in Arp at para. 54 : 54 ... [the] link between the accused and the alleged similar acts is... a precondition to admissibility. [ 40 ] And: Before evidence may be admitted as evidence of similar facts... there must be some evidence upon which the trier of fact can make a proper finding that the similar facts to be relied upon were in fact the acts of the accused... [ 41 ] These issues will ultimately be decided on the merits of a similar fact application.

At this stage, I am satisfied that the Crown has met the low threshold that there is a possibility that its application will be successful, where identity is at issue, given its submissions that taken together, there are sufficient significant similarities between the two counts that cumulatively warrant admission. Possibility of Success where Identity is not at issue [ 42 ] I have also considered the Crown's argument that it is seeking to use similar fact evidence for mens rea and to bolster the credibility of the complainant witnesses.

I acknowledge that establishing the actus reus of the offence may encompass the absence of consent where that is an issue as well as to support the credibility of the complainant. In R. v Lai , 2017 BCSC 2594 at paragraph 83 , the

Court said that: [83] …The use of similar fact for those two purposes will often be inextricably intertwined. [ 43 ] In Mostowy , the similar fact evidence was not adduced simply to bolster credibility and the fact it did so was only an indirect result of the fact that it was highly relevant to proof of the actus reus of the offence in each case – the unwanted sexual touching as well as the mens rea – that the accused knew or was reckless or wilfully blind to the complainant's lack of consent.

Since all this evidence came from the complainants, it has by necessity bolstered their credibility. [ 44 ] For sexual assault cases where identity is not an issue, the credibility of a complainant is an issue in which similar fact evidence might be received: Mostowy , para. 43.

In Handy : [43] …While warning against the admissibility of similar fact evidence on the issue of credibility because of the risk that the evidence might go only to the [accused's]... general disposition or propensity... where the similar fact evidence is relevant to an element of the actus reus , the fact that it is also relevant to the complainants' credibility will not render the evidence inadmissible. [ 45 ] On a severance application, I am not in a position to determine the merits of an application that the Crown has yet to make.

Rather, having considered the submissions, I am satisfied for the purpose of this severance application that there is a possibility that the Crown's similar fact application may succeed at a future date. This factor is one of those I must balance on this application. [ 46 ] For all these reasons, I find that this factor weighs against severance.

Complexity of the Evidence [ 47 ] I find that the complexity of the anticipated evidence of the Crown is a factor that weighs in favour of severance. [ 48 ] I accept the defence's argument that the evidence is not that complex to the extent that the Crown will not be calling any expert forensic evidence as it relates to DNA or toxicology. The Crown also does not anticipate calling any surveillance evidence or overlapping witnesses.

In this way, this case is distinguishable from Legebokoff where the Crown advised that they expected to call approximately 155 witnesses of which approximately 50 would be expert witnesses. In Legebokoff , the evidence related to four homicides inevitably leads to complexity particularly where a good deal of the evidence is forensic evidence. That complexity is absent here. [ 49 ] However, that does not end the matter. I accord less weight to this factor given the submissions made by Crown.

Since the Crown has given notice that it will be applying to adduce similar fact evidence, there will need to be a voir dire ruling on a similar fact evidence at the conclusion of the Crown's case. This will entail assessing the credibility and reliability of both complainants, which is a highly factually specific determination. I accept that the complexity arises from the anticipated grappling of factual evidence. [ 50 ] Furthermore, as it relates to Count 2, the Crown has indicated that it will be calling expert evidence in relation to the translation of text messages from Mandarin to English.

The Crown has also indicated that there will also be a voluntariness voir dire for the statement of M.T. In this way, I am satisfied that the evidence beyond the complainant adds to the complexity. General Prejudice to the Accused [ 51 ] To begin with, the fact that this indictment charges the accused with two counts of sexual assault is a factor which could give rise to general prejudice to the accused.

The general prejudice that must be overcome by the probative force of the evidence includes both moral prejudice (i.e. that the accused is more likely to have committed the offence because they are a bad person) and reasoning prejudice (i.e. the trier of fact is, among other things, distracted from attention to the actual offence charged by the propensity evidence): Handy , para. 100 . [ 52 ] I find that the risk of moral prejudice and reasoning prejudice is lessened because the trial will be before a judge alone: R. v. Mavros , 2017 BCCA 435 at paras. 25 and 26 . As explained by the Court of Appeal in R. v.

Mastronardi , 2014 BCCA 302 at para. 36 : [36] …Trial judges are trained to keep separate the evidence on individual counts.

The trial judge in this case would have been alive to the potential legal issues raised by multiple counts in an indictment and the need to ensure that the evidence on the sexual assault count at issue would not improperly influence him in determining whether the Crown had met its burden on the other counts. [ 53 ] I distinguish the case relied on by the defence, R. v. 7-Eleven Canada Inc. , 2004 BCPC 124 in which a severance application was granted even though the trial would be conducted by a judge alone on the sheer number of counts on that indictment. [ 54 ] In 7-Eleven , the Information contained 60 counts.

The defence sought to sever certain counts such that there would be 29 different Informations, each of which would be separately set for trial. Judge Warren was satisfied that given the sheer number of counts, the requirement for the trial judge to separately weigh evidence related to each count will become unnecessarily unwieldy and complex and could ultimately result in prejudice to the accused. Judge Warren granted severance but not to the extent requested by the accused.

He severed counts with respect to each geographical area in the province keeping in mind the need to avoid a multiplicity of proceedings balanced against possible prejudice due to complexity of the evidence: at paras. 19 and 20. [ 55 ] Since there are only two counts in this case, I am not satisfied that the requirement for a trial judge to separately weigh evidence related to each count will result in a trial that is unnecessarily unwieldy or complex. On balance, this factor weighs against severance.

Whether Accused wishes to testify on one count and not another [ 56 ] I find that this factor weighs strongly in favour of severance. The accused has expressed an intention to testify in relation to Count 2 but not in relation to Count 1. By way of an affidavit filed on July 29, 2021, the accused attests that he will waive any delay caused by

any severance of counts. Subjectively, the accused has indicated a definite intent not to testify on one of the counts. [ 57 ] However, that does not end the analysis. There is no dispute that the expression of an accused's intention to testify should have both a subjective and objective component: Mavros , para. 28 ; Last , para. 26 . In other words, I must be satisfied 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 his testimonial intention. The threshold is low: it is not on the balance of probabilities, but rather, on an air of reality. [ 58 ] Here, I find that the accused has satisfied the burden. I find that there is an objective rationale for the accused to testify in one case but not the other based on the anticipated evidence of the Crown and the anticipated defences of the accused.

Count 1 [ 59 ] I find that there is an objective basis for the accused not to testify in relation to Count 1 based on the submissions. As it relates to Count 1, the complainant is not able to identify the accused directly and the Crown intends to rely on other evidence to show that the accused worked there at the time. [ 60 ] The accused seeks to challenge his identification as the perpetrator as it relates K.N. The defence argues that K.N. does not really remember the year when the alleged sexual assault happened given the two-year window in the Information.

There is no record of when she visited the accused for a massage. There is not DNA or surveillance footage and the complainant could not identify the accused in a photo line-up. For these reasons, the defence argues that the Crown has not proven one essential element of the offence: identification. [ 61 ] The Crown argues that it has independent corroborative evidence to prove identification beyond a reasonable doubt.

The Crown refers to the anticipated identification evidence of the owner of the spa and employer of “Paul”; the fact that K.N. received a massage; the fact that K.N. contacted the owner after the massage; and the financial documents showing that the accused was receiving compensation for almost the entire relevant time period with the exception of a two-week window.

In these circumstances, the Crown argues that this case is not remarkably weaker than one in which there is DNA evidence. [ 62 ] It remains to be seen how the Crown's case will unfold, how reliable or credible their witnesses will be, and at the end of the Crown's case, how strong or persuasive their evidence is. In my view, it cannot be said at this point that the Crown's case is not remarkably weaker than one in which there is DNA evidence. That remains to be seen. Whether the accused will testify may depend on what evidence is provided by the Crown witnesses in both direct and cross-examination.

In that respect, I am guided by the words of Deschamps, J. at paragraph 25 of Last : [25] In assessing the accused's testimonial intention on a severance application the underlying concern is for the accused's ability to control his defence, and, more specifically, his right to decide whether or not to testify with respect to each of the counts unimpaired by inappropriate constraints. [ 63 ] The accused is presumed to be innocent of this charge and has a right to remain silent during his trial.

Given the anticipated evidence of the Crown, and the defence's challenge to identification, there is an objective rationale for the accused not to testify in relation to Count 1. Count 2 [ 64 ] I find that there is an objective basis for the accused to testify in relation to Count 2. As it relates to Count 2, identification is admitted. At issue is consent. [ 65 ] The Crown anticipates calling M.T. to testify.

The Crown also anticipates introducing contemporaneous text messages into evidence and calling an expert witness in relation to the translation of those text messages. [ 66 ] The accused seeks to challenge the voracity of M.T.’s testimony and to establish that sexual relations with M.T. were consensual. Given that the defence is raising the issue of consent and an honest mistake in belief in communicated consent, the accused intends to testify in relation to this count.

In these circumstances, there is an objective basis to do so. [ 67 ] I reject the Crown's argument that the weight is lessened by the circumstances of the defences offered, or that I should attenuate the weight given by the accused's intention to testify in relation to one count or not the other given that he was acting in a position of trust. [ 68 ] I have considered the Crown's argument that it will contest the air of reality of the anticipated defence in Count 2 because the text messages between M.T. and the accused reveal that she did not want those areas massaged and said so.

As I understand the submissions, the Crown will be challenging the credibility of the accused. The Crown will be able to do so given that the accused intends to testify in relation to Count 2.

This is not a case where the accused subjectively intends not to testify in the face of the anticipated evidence of the Crown that clearly establishes that his intention is not objectively reasonable. [ 69 ] I distinguish Mavros on the grounds that the trial judge in that case found that the accused's intention not to testify in relation to only one count was not objectively reasonable given the DNA evidence. [ 70 ] In Mavros , the trial judge was advised that the Crown would lead strong DNA evidence in relation to the A.P. charges.

The trial judge found that in light of the DNA evidence, the Crown's case in relation to A.P. does not appear to be markedly weaker than its case in relation to C.D. The judge concluded that the accused's provisional intention not to testify in relation to A.P. was not objectively reasonable in light of the DNA evidence and concluded that his decision whether or not to testify might well be the same in relation to both sets of counts.

[71] I distinguish R. v. Cross, (QC CA), [1996] 112 C.C.C. (3d) 410 – where the Court of Appeal in Quebecrefused to overturn the judge's refusal to order severance – on the grounds that, here, the accused has indicated the nature of his defenceswith sufficient specificity and in a manner that is responsive to the anticipated evidence of the Crown as it relates to both counts. [72] In Legebokoff, the court referred to R. v.

Raco, (ON CJ), [1975] 23 C.C.C. (2d) 201 at pages 204 to 5 for theproposition that: Where the issue is substantially credibility and where there is a close nexus in time and place in relation to the counts as exists in thiscase, it is in the interests of justice that both of these counts be tried together... [73] I distinguish Raco on the grounds that, in that case, the defence raised the issue that the police planted evidence for both countsso the trial judge said that the issue should be resolved by one tribunal.

Here, the defences are sufficiently different in character that theinterests of justice broadly defined do not weigh in favour of hearing both counts together. [74] In Last, the allegation was that the accused sexually assaulted the complainant while she was unconscious. Since thecomplainant had seen him before notwithstanding his subjective intention to the contrary, it was probable that the accused would have totestify: at para. 30.

Those circumstances do not arise here in the context of Count 1, given that the accused has established an objectivebasis not to testify in relation to Count 1. [75] The defence argues that the Crown will be unable to prove identification, an essential element of the actus reus of the offencebeyond a reasonable doubt which is a defence different in character than a consent defence.

The parties made submissions on thedifferences between a reliability and credibility defence and how those differences should be weighed in the context of a severanceapplication. [76] In my view, this unnecessarily detracts from one of the central issues that I need to decide: whether trying the counts togetherwould violate the accused's right to remain silent in relation to Count 1.

Given that he intends to testify in relation to Count 2, and hasestablished an objective basis to do so, there is no dispute that his testimony in relation to Count 2 will trigger cross-examination on allcounts. [77] In the circumstances of this application, the accused's fundamental right to remain silent in relation to Count 1 may beundermined in circumstances where he testifies in relation to Count 2 since this opens him up to cross-examination in relation to theentire scope of the indictment. This factor weighs strongly in favour of severance.

Possibility of Inconsistent Verdicts [78] With only a single accused, there is no possibility of inconsistent verdicts in this case and this is not a factor. [79] I have considered the Crown's argument that there is a real possibility of inconsistent verdicts given that severance wouldnecessitate two voir dires in relation to two similar fact evidence applications in two trials. I acknowledge the Crown's argument that oneof the complainants will be a witness for the other complainant and there is a real possibility of inconsistent rulings, which may lead toinconsistent verdict.

However, the risk of overlapping witnesses is attenuated because the alleged incidents happened three to five yearsapart and involved discrete incidents involving two separate complainants. [80] While severance may result in different voir dire rulings, I am not persuaded that it will result in inconsistent verdicts given theanticipated evidence of the Crown.

Whether there is one trial on both counts or two trials on one count, there is always the possibilitythat the accused will be convicted on both counts, acquitted on both counts, or convicted on one count and acquitted on the other count.This factor weighs in favour of severance. Desire to Avoid Multiplicity of Proceedings [81] As I understand the Crown's submissions, they have also indicated that they intend to pursue a similar fact application whether ornot severance is granted. [82] The Crown argues that its application for similar fact evidence will require a voir dire ruling.

I accept the Crown's argument tothe extent that it is possible that both complainants would have to testify twice in relation to the evidence on both counts. I pause, here, toacknowledge another possibility: presumably, if the judge hearing the first trial ruled it was not similar fact evidence, the Crown wouldnot try to adduce it at the second trial. [83] I accept the Crown's argument that two similar fact evidence voir dires will result in a duplication of proceedings.

The Crownargues that the bulk of the evidence would have to be heard again, and that there is an issue of a police officer translation of the accused'sstatement. Both complainants will have to testify twice, counsel make submissions twice and two judges have to decide. I accept that thiswill increase or double the time for proceedings and this factor weighs against severance. [84] The Crown raises the issue that this would cause undue hardship to the complainants in that both complainants would have tocome to court and testify twice on a sexual assault charge. Both complainants are reluctant to testify.

This would frustrate the Crown'scase and undermine truth seeking. Similar fact evidence on the merits may compromise the voir dire entirely. I accept that this is not acase where the Crown is recalling police officers or other independent professionals. Here, the complainants in a sexual assaultallegation would have to return to court twice possibly.

I accept the Crown's submission that this would have a negative impact on them,cause undue hardship, and is contrary to public policy and the administration of the criminal justice system as it relates to sexual assault. [85] On balance, this factor weighs against severance. Length of Trial having regard to the evidence to be called

[86] Although the admissibility of the Crown's evidence when their application is heard is not being decided, I am obliged to considertheir intended course of action on the complexity and length of the trial as well. [87] The parties have given me two different estimates for the length of the trial having regard to the evidence being tried. Thedefence anticipates one six-day trial or two three-day trials.

The Crown anticipates one six-day trial or two five-day trials. [88] I have taken into account the defence's argument that two trials may even be shorter because the accused is not planning to testifyin one of them. I have also taken into account the Crown's argument that the two trials may be even longer because there would be twosimilar fact voir dires and both complainants would testify. [89] On either estimate, the trial on these counts -- whether joined or severed – ranges from six to ten days.

Since the length of thetrial overlaps with the complexity, and that overall, the trial will not be lengthy given the anticipated evidence of the Crown, and inparticular, that no forensic evidence is being called. [90] On balance, this factor weighs against severance. Potential Prejudice to the Accused with respect to the right to be tried within a reasonable time [91] The accused is not in custody.

Given that the accused has waived delay in his affidavit, I accept the defence's argument that theaccused is not seeking to profit from the delay. [92] I have taken into consideration the Crown's submissions in relation to the Jordan ceiling of December 9, 2021. [93] While this factor requires me to consider the potential prejudice to the accused with respect to the right to be tried within areasonable time, I accept the Crown's submissions that broader interests are at stake.

Notwithstanding that the accused has agreed towaive any delay associated with the severance he seeks, this does not address the interests of witnesses and the overall interests of societyas a whole.

Delay is not simply something which works potential prejudice to the accused but also to witnesses given that “memory byand large does not improve over time and the degrading of evidence is a factor all of us involved in the court process are well aware of”:Legebokoff, para. 159. [94] This factor is attenuated by the fact that the indictment already refers to allegations that are between three to nine years old. [95] On balance, given the competing interests at stake, I consider this a neutral factor.

Existence of Antagonistic Defences [96] Given that there is only one accused, there is no possibility of inconsistent verdicts in this case and this is not a factor. Media Interest [97] I find that this is a neutral factor. Counsel are not aware of any media interests at this time. It would be speculative to assess thisfactor in these circumstances.

Summary [98] I find that on balance, the accused has met the burden of establishing on a balance of probabilities that the interests of justicerequire severance. Decisions on these types of applications will be substantially driven by the constellation of facts at hand: R. v.Shergill, 2003 BCSC 1601, para. 20. I have considered all of the relevant factors and weighed them in relation to the constellation ofcircumstances before me to determine whether the interests of justice requires severance. [99] Mr. Chien is presumed to be innocent of these charges.

The burden is on the prosecution to prove the essential elements of theseoffences beyond a reasonable doubt. The accused has a right to remain silent. The accused has established both a subjective and objectivebasis for not testifying in relation to Count 1 and for testifying in relation to Count 2. Given that the accused intends to testify in relationto Count 2, an injustice would result from the denial of a severance application since his testimony in relation to one count could triggercross-examination on the entirety of the indictment.

Although the risk of moral prejudice and reasoning prejudice is lessened because thetrial will be before a judge alone, the accused's intention to testify with respect to one count in these particular circumstances tips thescale in favour of severance. [100] In my view, granting severance would not cause serious prejudice to the administration of justice. In reaching this conclusion, Ihave considered the comments of the Court of Appeal in R. v.

Steele, 2006 BCCA 114 at para 15: 15 …While the expression by counsel of a defendant's desire to testify is a factor to be given substantial weight, as the trial judgerecognized, that expression of desire in and of itself will not always outweigh all the other factors when a trial judge comes to decidewhat is in the interests of justice. Much will depend on the prejudice to the accused. [101] There is an absence of compelling countervailing reasons for having a joint trial. This case does not pose a risk of inconsistentverdicts, nor did it involve substantial overlap in witness testimony or other evidence.

The nature of the nexus between the counts in thiscase does not provide a reason why it is necessary, desirable, or convenient to try the cases together. Indeed, a joint trial in thecircumstances of this case does not serve any truth-seeking interest and brings few if any benefits to the administration of justice. [102] In R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333, the Supreme Court of Canada held that the severance ordershould not work an injustice towards the Crown, the complainants, and the administration of justice. I have considered that the Crown

intends to bring a similar fact evidence application whether or not severance is granted. This will add to the multiplicity of proceedings and length of the trial. I have taken into consideration the possibility that both complainants may have to testify in relation to the evidence on both counts and the hardship that these complainants may experience in having to testify at two sexual assault trials. [ 103 ] Although severance may result in delays and lengthier proceedings, the time estimate difference for the trials is a matter of days.

The evidence at these trials is not that complex given that there will be no expert forensic evidence and the complexity arises mainly from the anticipated grappling of factual evidence. [ 104 ] The accused will waive delay should severance be granted and the indictment refers to incidents that are already three to nine years old. [ 105 ] After balancing all of the relevant factors, I find that the interests of justice do not require a joint trial. Conclusion [ 106 ] I grant the application and order that the counts be severed. (ORAL REASONS FOR JUDGMENT CONCLUDED)