r v. HIS MAJESTY THE KING, 2023 QCCQ 4706

Magtaas c. R. 2023 QCCQ 4706 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminel and Penal Division No: 500-01-228843-220 DATE: June 19, 2023 ______________________________________________________________________ BEFORE THE HONOURABLE SUZANNE COSTOM, J.C.Q. ______________________________________________________________________ Rodel MAGTAAS Petitioner v. HIS MAJESTY THE KING Respondent ______________________________________________________________________ JUDGMENT ON A MOTION FOR SEVERACE OF COUNTS [1] ( art. 591(3) of the Criminal Code ) NOTE – The Court has made an order pursuant to

article 486.4 of the Criminal Code directing that any information that could identify the victims shall not be published in any document or broadcast or transmitted in any way. [ 1 ] Petitioner is charged with 3 counts of sexual assault, in relation to 3 different victims, on three different dates. He presents a motion requesting that the charges be severed such that three separate trials will be held. [ 2 ] I have been appointed as the Case Management Judge pursuant to

section 551.1 of the Criminal Code in order to rule on his motion. THE FACTS [ 3 ] By consent, the parties deposited the relevant excerpts of the three police reports prepared in support of the 3 charges. Each one consists mainly of a

summary of the incident prepared by Detective Sergeant Maryse Ouellette, as well as a

summary of the interview with each complainant. In certain cases, the summaries of the incident and the summaries of the interviews with the complainants differ, in which case the court based itself mainly on the

summary of the interviews. Count 1 - M. L. (R-1) [ 4 ] Petitioner and Ms. L. met on social media when Ms. L. was 20 years old. After exchanging messages for some time, they got together on 3 occasions, with the alleged sexual assault happening during the 3 rd of these get-togethers. [ 5 ] On their 1 st meeting, Petitioner and Ms. L. met at the Côte Vertu metro station. Petitioner picked her up and theydrove to a nearby hotel. Once in their room, he told her to undress and insisted on giving her a massage. He told her that he was a massage therapist in his home country.

There was some kissing and rubbing against each other which she was “not completely against”. Petitioner convinced Ms. L. to perform fellatio on him which she did until he ejaculated. They cuddled and chatted for another hour and then he brought her back to the metro. [ 6 ] The 2 nd meeting took place at Ms. L.’s house. When Petitioner tried to kiss her, she refused, but he continued. He then unzipped his pants and put on a condom. He rubbed his penis between her legs until he ejaculated. Ms. L. was still dressed, wearing pants. Following this event, they kept in touch via text messages and Ms.

L. indicated that she would we see him again but only as friends. [ 7 ] The 3 rd meeting, at which time the incident forming the basis of the charge took place, dates from October 30, 2020, which was only a few days after the 2 nd get-together. Petitioner called Ms. L. and they talked about his grandfather’s death. Out of empathy, she agreed to see him. He once again went to her house. He tried to kiss her but she reminded him that they were just friends. She said a number of times that she did not want to kiss. He pushed her and continued to try to kiss her and press his body against hers.

He was on the couch on top of her and lowered his pants . He held her hands and succeeded in getting her jeans off. He put on a condom. Despite Ms. L.’s resistance and verbal objections, Petitioner penetrated her vagina with his penis. After 5 minutes he ejaculated into the condom. Count 2 – Ma. C. (R-2)

[ 8 ] Petitioner and Ms. C. met on social media when Ms. C. was 20 years old. They chatted for a about a week, and then arranged for the victim, who lives in Town A, to come to Montréal to meet Petitioner. At his suggestion, they met at a hotel on Jan 2, 2021. [ 9 ] Once in the hotel room, Ms. C. lied down on the bed. Petitioner lied down beside her and tried to kiss her. She refused. Petitioner offered to give her a massage and mentioned that he was a massage therapist in his country. Ms. C. she said that she did not want any sexual contact.

At that point Petitioner got on top of her and took off her shirt and her bra, despite her objections. He took off her pants and pushed aside her underwear and performed cunnilingus on her, contrary to her refusal. He was wearing a condom and masturbated and tried to penetrate her. She moved her body and managed to avoid him. He rubbed himself against her, on her stomach. He masturbated and eventually ejaculated. Count 3 – J. S. (R-3) [ 10 ] On February 17, 2021, Ms. S. worked at a dental clinic. She called Petitioner twice regarding an upcoming appointment.

That same day, he called her back on her personal number, from which she had made the 2 phone calls, and asked her to send him a picture of herself. Ms. S. was 42 years old at that time. She sent 2 pictures, one in which she was wearing a mask and one without a mask. She then asked him for a picture. Initially he sent her a picture of an Asian actor but when she called him out on it, he sent her two real photographs of himself. [ 11 ] The exchanged text messages over the course of the day and Petitioner invited Ms. S. to have coffee with him.

Initially she refused but, ultimately, he picked her up when she left work. Once Ms. S.’s entered his car, Petitioner asked her if she knew of a park where they could stop the car and chat. Ms. S. did not know the area well and mentioned a place but ultimately Petitioner drove west and parked on Gouin Boulevard. [ 12 ] Once parked, Petitioner asked Ms. S. to go to the back seat. She said no. He tried to push her purse out of the way and told her she should take it off because she was stiff. She told him that she was comfortable. Petitioner asked to touch Ms.

S.’s hands (or for her to touch his hands?) because she (or he?) was cold [2] . She said no, but may have agreed for a few seconds. He then lowered her seat and climbed on top of her and started to kiss her. She said “no, no, please don’t”. He told her that he had bought perfume at the pharmacy. She felt sick. She couldn’t breathe. The perfume was too strong. [ 13 ] Petitioner tried to kiss Ms. S. and asked her to take off her coat, He took her hands and put them around him. She tried to push him away. Petitioner put his hands inside Ms. S.’s leggings and tried to reach her intimate parts.

She held onto her pants and said no. She crossed her legs. He asked her to open them. She said she did not want to. Petitioner took off his pants and put his penis on her. He pushed her saying “kiss me, kiss me”. Petitioner kept trying to kiss Ms. S. on the mouth. He put his hands on her, tried to touch her vagina and tried to penetrate her with his fingers. At some point, Ms. S. was able to abruptly raise his underpants, which hurt him, and so he stopped. Petitioner then brought Ms. S. home.

THE LAW Overview [ 14 ] The decision to include more than one count in an indictment falls within the discretion of the prosecutor. However, pursuant to section 591 (3) of the Criminal Code , the Court may order the separation of counts “where it is satisfied that the interest of justice so require”. [ 15 ] In Last [3] , The Supreme Court provided guidance on how this provision should be applied as follows: [16] The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in the interests of justice, as per s. 591(3) of the Code.

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. […]. [18] The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a particular case, avoiding an injustice.

Factors courts rightly use include: the general prejudice to the accused; the legal and factual 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; and the existence of antagonistic defences as between co - accused persons. [ 16 ] Where the accused seeks a severance order, he or she bears the burden of proving, on a balance of probabilities that the interests of justice require the separation.

APPLICATION [ 17 ] The Court will now examine the criteria set out in Last : • The general prejudice to the accused [ 18 ] Petitioner argues that there is a significant risk of prejudice to him if the 3 counts are tried together. He argues that there is a risk

that bad character evidence will be used, and that his testimony will not be believed if it seems to be repetitive or similar in relation to all 3 counts. Petitioner also submits that the court may be more inclined to believe the complainants based on the combined effect of their testimony rather than based on the individual analysis of the testimony of each one of them. [ 19 ] Petitioner has also advised the Court that he plans on making a motion pursuant to

section 276 in relation to M. L. (count 1). This motion is completely irrelevant to the incidents charged in counts 2 and 3. He submits that the judge hearing the 276 motion in relation to count 1 will be apprised of facts which need not and should not be brought to the attention of the judge presiding over counts 2 and 3. [ 20 ] In his view, for all of these reasons, the risk of prejudice militates in favour of his motion for severance. [ 21 ] The Court is not of the same view. [ 22 ] It is to be recalled that this is to be a trial before Judge alone.

Judges are regularly asked to compartmentalize evidence and to hear evidence for one purpose without using it for another, and are bound to apply the rules of evidence in assessing the evidence of both the accused and the various complainants. [ 23 ] Judges are accustomed to presiding over voir dires at which time they hear evidence, including, for example, incriminating confessions, which they may ultimately exclude from evidence, and it is not considered overly prejudicial to the accused that the same judge who presided over the voir dire also preside over the trial. [ 24 ] While it is true that severance is sometimes justified even in judge alone trials, the risk of prejudice described by Petitioner is not in and of itself sufficient to justify severance [4] . [ 25 ] That being said, it is the combined effect of all of the various factors set out in Last [5] that must be examined [6] .

The Court will therefore examine the remaining factors with a view to taking a global approach to whether severance is required in the interests of justice. • The legal and factual nexus between the counts [ 26 ] There is no legal or factual nexus between the counts, other than the fact that they happen to be 3 charges of the same nature. The complainants do not know each other.

Were it not for the question of similar fact evidence, which will be discussed in a moment, there appears to be no reason why the counts need to be tried together. [ 27 ] However, this does not mean that the interests of justice require the separation of counts. [ 28 ] While this is not a point of great significance, the Court also notes that the same Detective Sergeant oversaw each investigation.

It is unclear whether she will be called as a witness but if she does it will certainly be more efficient for her to testify at 1 trial rather than at 3. • The complexity of the evidence [ 29 ] The evidence is not complex. The Court’s understanding is that each count will essentially boil down to a case of contradictory versions, or that a defence of honest but mistaken belief in communicated consent will be presented. [ 30 ] There will be one

section 276 motion in relation to the complainant in count 1, that will be dealt with in a voir dire before the trial begins. [ 31 ] This factor does not tip the scales of justice in favour or against the separation of counts. • Whether the accused intends to testify on one count but not another [ 32 ] While Petitioner reserves his right to decide whether to testify until after the close of the Prosecution’s case, at this stage it is his intention to testify with respect to all of the counts. [ 33 ] This factor therefore does not militate in favour of the separation of counts. • The possibility of inconsistent verdicts [ 34 ] This factor is not a concern given the distinct nature of each set of facts.

There is no risk of inconsistent verdicts. • The desire to avoid a multiplicity of proceeding and the use of similar fact evidence at trial [ 35 ] These 2 factors will be addressed together given their relationship to one another in the context of this case.

Indeed, while the facts in support of each count are independent of one another, the Prosecution has announced its intention to ask the trial judge to consider the evidence on each count as similar fact evidence on the other counts. [ 36 ] What this means, practically speaking, is that if 3 separate trials are held, each complainant would be called upon to testify at each trial in support of the Prosecution’s motion to present similar fact evidence. [ 37 ] The Prosecution has specified that it will ask the trial judge to admit the similar fact evidence in order to corroborate the testimony of the 3 complainants, given the absence of any possibility of collusion.

The use of similar fact evidence in this way, in

appropriate circumstances, has been recognized as lawful by the Supreme Court of Canada[7].. The Prosecution may also ask the courtto consider the existence of a system employed by the accused. [38] Petitioner, for his part, says that the Prosecution’s request to use the evidence of the 3 complainants as similar fact evidence oneach count is doomed to failure and should not stand in the way of his motion for severance.

More specifically, he argues that thesimilarities between each scenario are limited, and that the similarities that do exist are generic and insufficient to meet the threshold forsimilar fact evidence. [39] Let us recall the governing principles: As a general rule, evidence on one charge is not admissible as evidence on other chargesbecause it is essentially evidence of prior or other bad acts (also referred to as evidence of propensity or disposition) and its slightprobative value is outweighed by its highly prejudicial effect[8].

Briefly stated, evidence which is adduced solely to convince the trier offact that the accused is guilty because of his or her past immoral contact is inadmissible. [40] However, where such evidence is introduced for another reason it may be admitted.

Ultimately, in determining whether or not toadmit similar fact evidence, the “fundamental question that must be determined is whether the probative value of the evidence outweighsits prejudicial effect”[9]. [41] Because similar fact evidence is admitted on the basis of an objective improbability of coincidence, the evidence necessarilyderives its probative value from the degree of similarity between the acts under consideration[10].

It follows that in order to beadmissible, the trial judge must evaluate the degree of similarity between the alleged acts and decide whether the objective improbabilityof coincidence has been established such that the probative value of the evidence exceeds its potential prejudicial effect. [42] The degree of similarity required will be determined by the issues in the case and the purpose for which a similar fact evidence isbeing tendered.

For example, if similar fact evidence is tendered to help prove the identity of the person responsible for committing thecrime, courts will demand a high degree of similarity between the acts and the offenders charged.

If similar fact evidence is tendered forother reasons, acts that may be less similar could still support a sufficiently compelling inference on that issue[11]. [43] In evaluating the degree of similarity of the acts which the prosecution wishes to use a similar fact evidence, courts will look at anumber of factors including, but not limited to: • the proximity in time of the acts. • the extent to which other acts are similar in detail to the charge conduct. • the number of occurrences of the similar acts. • the circumstances surrounding or relating to the similar acts. • any distinctive features unifying the incidents of the similar acts.[12]. [44] It is only when the prosecution succeeds in proving on a balance of probabilities, on the basis of the similarities between the acts,that the probative value of the evidence on a particular issue outweighs its prejudicial effect, that the presumptively inadmissibleevidence will be admissible[13]. [45] With all that said, it is to be recalled that this Court is not being called upon to rule on the admissibility of similar fact evidence,but rather, on a motion for severance. [46] This Court therefore finds guidance from the Supreme Court of Canada in Last[14] as follows: In many cases a ruling allowing similar fact evidence will favour joint trial since the evidence on all incidents would have to beintroduced in any event.

However, in view of the different burden in a similar fact evidence application, the issue has to be consideredcarefully in the context of a severance motion. [47] And in Arp[15]: However, where the similar acts are alleged as part of a multi-count indictment, the consideration of the admissibility of similar factevidence will have to be taken into account in deciding whether the counts should be severed. Nevertheless, the trial judge should becareful not to confuse admissibility with severance. A motion to sever under s. 591(3)(

a) of the Code must be brought by the accused,who bears the burden of establishing on a balance of probabilities that the interests of justice require an order for severance. Yet theburden of demonstrating that similar fact evidence should be admitted must be borne by the Crown. These respective burdens mayinvolve the consideration of similar factors, but […] “[i]t does not follow that because a multi-count indictment has been allowed toproceed that therefore the evidence given will be evidence on all the counts contained in the indictment”. Thus, to paraphrase theManitoba Court of Appeal in R. v.

Khan (1996), (MB CA), 49 C.R. (4th) 160, at p. 167, notwithstanding the trialjudge’s refusal to sever the counts in a multi-count indictment, it remains open to him or her, as the evidence progresses at trial, todetermine as a matter of law that evidence on one count is not admissible as similar fact evidence on the other counts. [48] In Morasse[16] the Québec Court of Appeal underscored that when a judge rules on a motion for severance he or she does nothave to make a decision regarding the admissibility of the similar fact evidence but must simply, at that stage, evaluate the seriousness ofthe request. [49] At the hearing on the motion for severance, the parties understandably, and partly at the request of the Court, spent much timemaking submissions with respect to the merits of the eventual application to admit similar fact evidence. [50] After hearing such arguments, which were ably made, the Court is not in a position to conclude that the eventual request to be

made by the Prosecution in this regard is frivolous or doomed to failure. It is true that many of the similarities pointed to by Prosecution seem to be generic.

There are more similarities between counts 1 and 2 than between either counts 1 and 2 and count 3. [ 51 ] While at this stage the admissibility of the similar fact evidence is far from obvious or clear-cut, the Prosecution’s position is serious. [ 52 ] If the motion for severance is granted, the complainants will have to testify 3 times rather than only once: at their own trial and then at the 2 other trials in support of the application to make similar fact evidence, thereby multiplying and elongating the proceedings and imposing a significant burden on each of the complainants. [ 53 ] In the circumstances, the intention of the Prosecution to seek permission to use the evidence on each count for a well defined and specific purpose (or purposes) militates strongly in favour of keeping the counts together, and against the motion for severance. • The length of the trial having regard to the evidence to be called [ 54 ] Petitioner insists that given the lack of connectivity between the incidents underlying the 3 counts, 3 separate trials would not be longer than one trial on all 3 counts. [ 55 ] However, given the Prosecution’s intention to seek permission to adduce similar fact evidence, Petitioner’s position is inaccurate.

Indeed, in support of its request make similar fact evidence each complainant will be obliged to repeat her testimony 3 times, which will necessarily require more court days. • The potential prejudice to the accused with respect to the right to be tried within a reasonable time [ 56 ] At this time, a five-day trial is scheduled from October 30 to November 3, 2023. In his written motion, Petitioner states that these dates already to bring the matter beyond the 18-month ceiling established in Jordan .

He argues that “by severing the counts, it would be reasonable to infer the earlier dates would be made available”. [ 57 ] However, this assertion is not grounded in reality.

In my position as a trial judge in this jurisdiction, I am in a position to affirm the if additional trial dates are required, the absolute earliest that they will be available will be in 2024, and possibly even in the later part of 2024. [ 58 ] Since, for the reasons exposed above, severing the counts would require more than 5 court days in order to accommodate the testimony of all 3 complainants on 3 occasions, severing the counts would be more prejudicial to Petitioner’s right to be tried within a reasonable time than keeping them together. • The existence of antagonistic defences as between co - accused persons. [ 59 ] This factor is inapplicable given the absence of co-accused.

CONCLUSION [ 60 ] All of the above factors must be considered and weighed cumulatively. [ 61 ] In this case, the Prosecution’s intention to request that evidence of each count be considered as similar fact evidence on the other counts militates strongly in favour of keeping the counts together in one indictment. This serves society’s interest in seeing that justice is done in a reasonably efficient and cost-effective matter in that it avoids multiplying and lengthening the proceedings.

It will also make it unnecessary for the complainants to bear the burden of testifying 3 times. [ 62 ] The Court reiterates that at this stage it is far from clear that the request to make similar fact evidence will be granted, particularly in relation to count 3.

However, the request appears serious enough to justify keeping the counts together. [ 63 ] The Court adds that the subtle and sometimes not so subtle differences between the information contained in the summaries of the incidents and the summaries of the complainant’s statements (R-1, R-2, R-3) are such that it not in a position to do a truly meaningful analysis of the similarity of the facts underlying each count. [ 64 ] The Court is convinced that it is only after the examination and cross-examination of the complainants that the precise details of their narratives will be properly understood.

The trial judge will then be in a position to examine the factors set out in Handy [17] , identify the degree of similarity between the 3 incidents and weigh the probative value of admitting similar fact evidence against its prejudicial effect. [ 65 ] The Court also considers that any prejudice that the accused may suffer by keeping the counts together is limited. He is planning to testify in relation to all of the counts.

The trial will be proceeding before judge alone, and the judge will need to follow the rules of evidence and justify the verdict on each count on the basis of the evidence which is admissible on that count. [ 66 ] The Court adds that if circumstances permit, Petitioner may be entitled to renew his motion for severance. FOR ALL THESE REASONS, THE COURT : DENIES the motion for severance. __________________________________ SUZANNE COSTOM, J.C.Q.

Me Xavier Desrosiers Attorney for the Petitioner Me Bruno Ménard Attorney for the Respondent Date of hearing April 27, 2023