R. v. Kulkarni, 2011 ONCJ 310

WARNING An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code has been made in this proceeding. These sections of the Criminal Code provide: 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1 )(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3 )( b). 486.6

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 . COURT FILE No.: Brampton 10-4333 DATE: January 7, 2011 Citation: R. v. Kulkarni , 2011 ONCJ 310 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — dilip kulkarni

Before Justice Richard H.K. Schwarzl Heard on December 10, 2010 Ruling released on January 7, 2011 Mr. Paul Renwick..................................................................................................... for the Crown Ms. Samantha Peeris............................................................................................. for the Accused SCHWARZL, J.: RULINGS RE CROWN HANDY APPLICATION AND DEFENCE SEVERANCE APPLICATION 1.0: INTRODUCTION [ 1 .] Mr. Dilip Kulkarni (“the Accused”) stands charged on Information 10-4333 with three counts of sexual assault arising from the summer of 2009.

This Information is a replacement laid in April, 2010 that joins together charges from two earlier Informations, Information 09-12324 and Information 09-14539. [ 2 .] Information 09-12324 was laid in September 2009 with respect to two sexual assaults said to have been committed against two women, HL and CGS. For ease of reference, I shall refer to these two counts as “the September occurrence.” [ 3 .] Information 09-14539 was laid in November 2009 with respect to a single count of sexual assault said to have been committed against SSR.

I shall refer to this incident as “the August occurrence.” [ 4 .] Both Informations 09-12324 and 09-14539 have been moving in lockstep with the Information that joins all three charges together. 2.0: APPLICATIONS [ 5 .] Pursuant to the Supreme Court of Canada’s decision of R. v. Handy [1] , the Crown seeks to have the evidence of the August occurrence apply to the September occurrence and vice versa as evidence of other discreditable conduct. The Crown is not seeking to adduce the evidence of the two September counts vis-à-vis each other for this purpose.

This is because the two complainants are both direct eye witnesses to the other. The Accused opposes this application. [ 6 .] Independent of the Crown’s application, the Accused has applied to sever the August and September occurrences and have separate trials on each occurrence based upon the principles set by the Supreme Court of Canada in R. v. Last . [2] The Accused is not seeking to sever the two counts from the September occurrence from each other.

The Crown seeks to proceed with both occurrences in a single trial. [ 7 .] The Crown’s application is inexorably intertwined with the Accused’s severance application because admission of evidence of other acts of discreditable conduct by the Accused is a relevant factor to consider on the question of whether or not the occurrences should be severed. [ 8 .] By agreement, the parties have argued both applications together. I will rule upon the Handy application of the Crown first and then I shall rule upon the Accused’s severance application.

3.0: HANDY APPLICATION 3.1: General [ 9 .] In the case of a multi-count indictment involving different complainants where the prosecution seeks count-to-count admissibility of what is submitted to be evidence of other acts of discreditable conduct, the issue of admissibility is usually not determined as a pre-trial application but rather at the conclusion of all of the Crown's evidence: R. v. Last at para. 34. In some trials, agreement is reached to argue the admissibility question at the end of the case: see for example, R. v. U.C. , [2009] O.J. No. 1805 (C.A.), at ¶ 19 .

However, in this case the parties have mutually sought a pre-trial ruling relying on an evidentiary foundation constructed by transcripts of the video statements each complainant gave to the police. This manner of procedure is due to the concurrent severance application of the Accused. [ 10 .] In considering the principles of admissibility of evidence of other acts of discreditable conduct set out in Handy , both counsel agree that (1) the conduct is that of the Accused; (2) the conduct to be adduced is both relevant and material; and (3) the conduct is “discreditable” to the Accused.

The sole issue to be determined is whether the probative value of the evidence outweighs its prejudicial effect. 3.2:

Summary of Allegations [ 11 .] Detailed accounts of the allegations of each complainant have been transcribed from the video statements they gave to the police. Those transcripts are found within the Accused’s Application Record as follows: HL’s is at Tab 3; CGS’s is at Tab 4; and SSR’s is at Tab 5. A very brief

summary of the allegations is as follows. [ 12 .] With respect to the August occurrence, SSR was a yoga student of the Accused. On August 2, 2009 following a yoga class in which she was one of a number of students, SSR asked the Accused to help her with breathing techniques. She alleges that while standing close behind her, he touched the upper part of her vagina with his fingertips over her clothes. The touching did not penetrate her nor was it directly on her labia or buttocks.

No one else was immediately present when this offence is said to have occurred, but the owners were in the building. [ 13 .] As for the September occurrence, HL and CGS were students in the Accused’s yoga class. On September 5, 2009 they allege that during a yoga class in which they were the only two students, the Accused used his hand to directly touch their entire vaginas and their anal regions from behind them and over their clothing. Neither was penetrated. Other than the two complainants, no one else was present at the time of the alleged offences, but the owners were in the building.

They discussed what happened together and again later with a friend. HL and CGS went to the police together with a mutually prepared complaint. [ 14 .] In rendering my rulings, I take into consideration not this

summary, but the entirety of the allegations as set out in the materials filed. [ 15 .] HL and CGS do not know SSR. The complaints of each occurrence were made independently of one another. 3.3: The Law [ 16 .] Evidence of other acts of discreditable conduct is presumptively inadmissible. The burden is upon the Crown to prove on a balance of probabilities that the probative value of the evidence outweighs its presumed prejudicial effect.

The Crown must demonstrate a “connectedness, far beyond ambiguous or generic details, between the transactions affording probative value on specific issues” [3] on which the evidence is probative of the improbability of coincidence. This may be, for example, the identity of the offender, the unlikelihood that independent witnesses would tell similar stories, the rebuttal of defences or any other relevant and probative inference. [ 17 .] I rely upon the

summary of the law regarding the admissibility of evidence of other acts of discreditable conduct (also known as “similar fact evidence”) provided by the learned Mr. Justice C. Hill of the Superior Court of Justice in R. v. J.F. , [2010] O.J. No. 3415 at ¶ 129 - 144 as follows:

129 In the instance of a multi-count indictment involving different complainants where the prosecution seeks count-to-countadmissibility of what is submitted to be similar fact evidence, the parties are frequently content to deal with the admissibility issue not asa pre-trial application but rather at the conclusion of all of the Crown's evidence: R. v. Last (2010), 2009 SCC 45 , 247 C.C.C.(3d) 449 (S.C.C.) at para. 34. In some trials, agreement is reached to argue the admissibility question at the end of the case: see forexample, R. v. U.C., [2009] O.J.

No. 1805, at para. 19. 130 Recognizing that "[c]oincidence, as an explanation, has its limitations", similar fact evidence may be admitted in a criminal trial:R. v. Handy (2002) 2002 SCC 56 , 164 C.C.C. (3d) 481 (S.C.C.) at para. 45. That said, such evidence is presumptivelyinadmissible and is only "exceptionally" admitted where the Crown discharges its burden of establishing the case for admission: Handy,at para. 60; R. v. B.(C.R.), (SCC), [1990] 1 S.C.R. 717 at 732.

Similar fact evidence is therefore admitted by exceptionwhere its probative value exceeds its prejudicial effect and the test for admission is the same whether the evidence is extrinsic or arisesfrom the proof of other counts in the indictment: R. v. Moo, 2009 ONCA 645 , [2009] O.J. No. 3706 at para. 97. 131 The admissibility of similar fact evidence, and specifically the balance of probative value against prejudicial effect, depends onidentification of the purpose or material issue for which the evidence is sought to be admitted - issue identification is an importantcontrol.

As the proponent of admissibility, the Crown must establish "the specific factual issue which the evidence is probative of theimprobability of coincidence": R. v. Mahalingan, 2008 SCC 63 , [2008] 3 S.C.R. 316 at para. 72. 132 Mere proof of general disposition or discreditable character at large amounts to moral prejudice only. "The issues in questionderive from the facts alleged in the charge and the defences advanced or reasonably anticipated": Handy, at para. 74.

For example, is theevidence proffered to prove the identity of the person who committed the offences, to prove the actus reus, to rebut or refute coincidenceor innocent explanation or mistake, etc.? Where properly admissible, the evidence may "show a pattern of similar behaviour thatconfirm[s] each complainant's testimony": R. v.

B.(T.) (2009), 2009 ONCA 177 , 95 O.R. (3d) 21 (C.A.) at para. 22; R. v.Thomas (2004), (ON CA), 72 O.R. (3d) 401 (C.A.) at para. 43. 133 The "principal driver of probative value ... is the connectedness (or nexus) that is established between the similar fact evidenceand the offences charged": Handy, at para. 76. Can it be said that a sufficiently "high degree of similarity between the acts renders thelikelihood of coincidence objectively improbable"? (R. v. Arp, (SCC), [1998] 3 S.C.R. 339 at para. 43). "[T]he searchfor similarities is a question of degree": Handy, at para. 122.

The cogency of the evidence, derived from the improbability ofcoincidence, increases as the fact situation moves further to the specific end of the spectrum - also described as an "observed pattern ofpropensity operating in a closely defined and circumscribed context": Handy, at paras. 87, 90, 110.

Where the acts do not have the highdegree of similarity that would render the likelihood of coincidence objectively improbable, the evidence will be inadmissible: Last, atpara. 34; Arp, at para. 43. 134 To found admissibility, the prosecution cannot hope to rely upon an impermissible general disposition inference (R. v. Perrier,2004 SCC 56 , [2004] 3 S.C.R. 228 at para. 18; U.C., at para. 41), similarities of a "general character" (R. v. Chapman (2006),204 C.C.C. (3d) 449 (Ont.

C.A.) at para. 24), "generic" similarities commonly seen in the commission of the alleged crime(s) (R. v.Cresswell, 2009 ONCA 95 , [2009] O.J. No. 363, at para. 8; R. v. R.B. (2003), (ON CA), 68 O.R. (3d) 75(C.A.) at para. 49, 64, 69 (aff'd 2004 SCC 69 , [2004] 3 S.C.R. 503)), or facts at the "vague end of the spectrum": Handy, atpara. 85.

However, where the evidence gives rise to an inference of a specific disposition, for example, "a specific disposition to sexuallyabuse his companion's two young daughters" (U.C., at para. 41) or "to show the appellant's specific propensity to engage in sexualmisconduct with boys in his care who came to him in a vulnerable condition" (R. v. B.(R.) (2005), (ON CA), 77 O.R.(3d) 171 (C.A.) at para. 11), the evidence may support a legitimate chain of reasoning and a "persuasive degree of connection" justifyinga similar fact ruling in favour of the prosecution: R. v.

L.T. (2005), (ON CA), 196 O.A.C. 394 (C.A.) at para. 16. 135 Evaluation of the degree of similarity of the acts may be assisted by consideration of a number of factors including: (1) proximity in time of the similar acts; (2) extent to which the other acts are similar in detail to the charged conduct; (3) number of occurrences of the similar acts; (4) circumstances surrounding or relating to the similar acts; (5) any distinctive feature(

s) unifying the incidents; (6) intervening events; (7) any other factor which would tend to support or rebut the underlying unity of the similar acts. (Handy, at para. 82) 136 Similarity assessment requires attention to the existence of material dissimilarities between the transactions: Handy, at para. 123.Where the similarities are particularly strong or numerous, attendant dissimilarities may not defeat the legitimacy of the inference soughtto be drawn - see, for example, U.C. (two sisters sexually abused - fondling and touching of both but sexual intercourse with only one);Cresswell (single incident of alleged abuse with some complainants and repeated acts with others); B.(R.) (2005) (no anal intercoursewith two of the complainants). 137 It is generally accepted that where the Crown seeks to have the court admit proffered similar fact evidence as relevant to theidentity of the person who committed the offences, an elevated degree of similarity is warranted.

Where the similarity amounts to aunique trademark of signature the evidence is "automatically" considered to reach the threshold of being "strikingly similar" and

therefore highly probative and admissible: Arp, at para. 45. Even if not at the level of signature sameness, "[i]n the same way, a numberof significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence": Arp, atparas. 45, 50; R. v. McCormack (2009), 2009 ONCA 72 , 241 C.C.C. (3d) 516 (Ont. C.A.) at para. 51. In general, evidencelinking the accused to each alleged similar act should not be part of "the similarity evaluation: Arp, at paras. 49, 56, 80.

However, "[t]heline between evidence that relates to the manner in which the offence is committed and evidence that shows the involvement of anaccused is not always easy to draw. The rule that requires segregation of the evidence indicative of involvement is a general, but not anabsolute rule": McCormack, at paras. 45, 80. 138 Account must be taken of the prospective prejudicial effect on the trier(

s) of fact should the similar fact evidence be admitted andavailable for circumstantial inference reasoning. The risk of wrongful conviction is inherent in propensity evidence. Regard must be hadto the risk of moral prejudice including the drawing of an inference of guilt from general disposition or discreditable tendencies. As well,reasoning prejudice warrants consideration including distraction of the trier(s), for example, on account of the impact sentiments ofrevulsion, consumption of time, etc.

The risks of prejudice are generally attenuated in a judge-alone trial: B.(T.), at paras. 33, 36; R. v.J.G.B., 2010 BCCA 2 at para. 25; R. v.

T.C. (2005), (ON CA), 74 O.R. (3d) 100 (C.A.) at para. 63; B.(T.), at paras. 33,36. 139 In the final analysis, the balance of probative value against prejudicial effect goes to the very fairness of the trial. 140 With regard to similar fact evidence, the "existence of collusion rebuts the premise on which admissibility depends" (Handy, atpara. 110) as the probity of such evidence arises from the improbability of two or more witnesses independently or coincidentally givingthe same evidence: U.C., at para. 40.

Where there is some evidence of actual collusion, or at least an air of reality to it, the Crown mustsatisfy the trier of law as a condition precedent, on a balance of probabilities, that the evidence of similar acts is not tainted withcollusion: Handy, at para. 112. 141 Dictionary

definitions of collusion raise notions of secret agreement, plotting or conniving, or conspiring together for a fraudulentor underhanded purpose. 142 To the extent that the jurisprudence dealing with collusion speaks of collusion "or some other form of tainting" (U.C., at para. 40;B.(T.), at para. 22), or of other non-collusive conduct (B.(R.) (2005), at para. 5 (no evidence complainants colluded with each other "oreven discussed the appellant's misconduct with each other")), the court, in deliberating upon the admissibility issue, should be alive toinstances of witness contamination of a sufficiently serious nature as to threaten the true existence of coincidence. 143 The evidence may disclose limited contact between complainants as in R. v.

L.G., [2009] O.J. No. 5420 at para. 5. Opportunity forcollusion may well be the context "in many cases alleging sexual abuse with multiple complainants" (Handy, at para. 111) andcommunication among sister complainants is "almost inevitable": R. v. Shearing (2002), 2002 SCC 58 , 165 C.C.C. (3d) 225(S.C.C.) at para. 43. But "[t]he issue is concoction or collaboration, not contact.

If the evidence amounts to no more than opportunity, itwill usually be best left to the jury": Handy, at para. 111. 144 There may exist the opportunity for collusion, or the potential for collusion, without the evidentiary record disclosing an air ofreality to collusion having in fact transpired. Where the trial judge is satisfied that the reliability of the evidence is not jeopardized bycollusion or similar tainting, the trier(

s) of fact will then decide the ultimate worth of the evidence: Handy, at para. 112; U.C., at para.19. At trial, of course, it is "not incumbent on the defence to prove collusion": Handy, at para. 112. 3.4: Analysis 3.4.1: Issues in Question [18.] Identity is not in issue and thus there is no need to lead evidence of other acts of discreditable conduct on this point. However,I find that the proposed evidence is germane to the live issues of mens rea, actus reus, and rebuttal of defences including denial, innocenttouching and accident. 3.4.2: Collusion [19.] SSR does not know either HL or CGS.

There is no evidence of collusion, nor any air of reality as to collusion or tainting, asbetween the August and September complainants. [20.] However, there is an air of reality to the submission of the Accused that with respect to the complaints of HL and CGS, there ispotential tainting. HL and CGS discussed the events together immediately after they happened, they later spoke together of the eventswith a friend, and they co-wrote a letter of complaint to the police.

The discussion of the events between HL and CGS gives rise to aconcern of “cross-pollination” of their accounts, but only as between their complaints. However, the prosecution is not seeking to adducethe evidence of HL and CGS as evidence of other acts of discreditable conduct between these two counts. Each is a direct eyewitness tothe other and thus each will be testifying on both counts in any event. [21.] I find that collusion is not a factor in this application.

Having said that, the issue of tainting or cross-pollination of theSeptember occurrence complainants will be considered on the issue of weight when considering my verdicts.

3.4.3: Dissimilarities [22.] There are some dissimilarities between allegations of the August and September occurrences, in particular: (i.) The August occurrence may be viewed a potentially ambiguous (touching the upper part of SSR’s vagina withfingertips) whereas the September occurrences are less ambiguous (direct contact of full hand on vagina and anus of HL and CGS); (ii.) The August incident occurred after class.

The September one occurred during class; (iii.) During the August incident, no one else was immediately present, but during the September situation, the twocomplainants were in view of one another; and (iv.) In August, SSR explicitly sought out the Accused’s assistance whereas in September, the touching wasimplied as part of regular instruction. 3.4.4: Similarities [23.] Here, the allegations of the two occurrences are similar in a number of distinctive ways including: (i.) All three Complainants are adult females; (ii.) All three Complainants had the same relationship with the Accused in that they were each students of theAccused at the time of the alleged offences; (iii.) Both incidents occurred at the same yoga studio; (iv.) Both incidents occurred in the context of the student/instructor relationship; (v.) Both incidents occurred during the course of providing yoga instruction, whether before or after class; (vi.) Both incidents involved touching restricted the pelvic region only of each Complainant; (vii.) All Complainants were touched from behind; (viii.) Both incidents involved non-penetrative, over-the-clothes touching; (ix.) One or both of the yoga studio managers was in the building at the time of each incident; and (x.) In both transactions, only the hand of the Accused was used.

No other part of his body, nor any object, wasinvolved. [24.] Despite the differences between the occurrences in this case, I find that there is a connectedness, far beyond ambiguous orgeneric details, between the August and September transactions thereby affording probative value on the issues in question. 3.4.5: Assessment of Prejudice [25.] The Accused submitted that the September occurrence is significantly more serious than the August one.

He argues that whilethey are generically similar in that the both involve over-the-clothes fondling, the September occurrence as described is more extensiveand intrusive than the August occurrence. He submits that, in essence, that this difference in the severity runs the risk of the Courtfinding that if he committed the more serious September offences, then he was more likely to have committed the less serious offence inAugust . In other words, the Accused submits that by admitting the evidence as other acts of discreditable conduct the prejudice of itsadmission outweighs its probative value.

With respect, I disagree with this submission. [26.] In my view, the seriousness or severity of each occurrence is virtually the same. They both involve superficial, non-penetrative sexual contact. Each allegation is an instance of groping involving different of degrees of touching, but not of kind. Whilethe September occurrence alleges a greater amount of groping, I do not find that its magnitude is significantly greater in gravity or scopethan the August occurrence. [27.] This is a judge-alone trial and accordingly the potential for straying toward moral or reasoning prejudice is diminished.

Asstated by the Ontario Court of Appeal in R. v. J.M., 2010 ONCA 117 , [2010] O.J. No. 585 at paragraphs 87 and 88:

87 … The allegedly similar acts were not extrinsic to the offences charged. It seems reasonable to conclude that, even if the trier offact had been a jury, the prospect of an inference of guilt from bad personhood, the moral prejudice of R. v. Handy, seems substantiallyattenuated where the alleged similar acts are other counts similar acts rather than other conduct outside the allegations in the indictment. 88 Second, the presumptive inadmissibility of evidence of similar acts reflects the general prohibition of the law against the use ofcharacter evidence as circumstantial proof of conduct, thus guilt.

The prohibition guards against reasoning prejudice (confusion becauseof evidence of multiple incidents and consequent unwarranted reliance on often suspect evidence about the offence(

s) charged) andmoral prejudice (findings of guilt based on bad personhood).

In trials by judge alone, like this case, the danger that a conviction will berooted in either reasoning or moral prejudice is significantly lessened. (citations omitted) [28.] I find that in this case, the probative value of admission outweighs its prejudicial effect. 3.5: Conclusion [29.] For the reasons given herein, I find that the August and September occurrences are admissible as between them as evidence ofother acts of discreditable conduct of the Accused. 4.0: SEVERANCE APPLICATION 4.1: General [30.] The Accused seeks to sever the August occurrence from the counts comprising the September occurrence and seeks separatetrials on each occurrence.

He argues that the connection between the occurrences is flimsy. He further argues that he may wish totestify on only one set of charges. [31.] The Crown argues that the Accused has not shown that the interests of justice require the counts to be severed. 4.2: The Law [32.] Recently, the Ontario Court of Appeal summarized the law with respect to severance applications. In R. v. Jeanvenne[4], Mr.Justice Blair stated: 26 The Supreme Court of Canada's most recent clarification of the principles relating to the severance of counts in an indictment isfound in R. v. Last, 2009 SCC 45 , [2009] 3 S.C.R. 146.

A trial judge has a broad discretion to sever under s. 591(3) of theCriminal Code where he or she is satisfied ''the interests of justice so require." Once the discretion is exercised, the judge's decision mustbe afforded considerable deference; an appellate court may only interfere where the judge has "acted unjudicially" or "the ruling resultedin an injustice." The onus lies on the accused who seeks the severance to persuade the court on the balance of probabilities that theinterests of justice so require. See also, R. v. Arp, (SCC), [1998] 3 S.C.R. 339, at para. 52; and R. v.

Litchfield, (SCC), [1993] 4 S.C.R. 333, at p. 352. 27 As the Court pointed out in Last, at paras. 15 and 21, the two grounds for intervention involve different inquiries. In determiningwhether the judge acted unjudicially, the court inquires into the circumstances prevailing at the time the ruling was made, and shouldonly intervene if the judge erred on a question of law or principle, or made an unreasonable decision. In determining whether the rulingresulted in an injustice, the court looks at the entirety of how the trial and the verdicts unfolded. In this regard, as Charron I.A. said in R.v.

Rose (1997), (ON CA), 100 O.A.C. 67, at para. 17: It is necessary to consider the entire trial, including the potential prejudicial effect of the evidence, the closing addresses ofcounsel, the judge's instructions to the jury and any inference that may be drawn from the ultimate verdicts returned by the jury. 28 At paras. 16-17 of Last, the Court canvassed the overall considerations bearing upon the judge's exercise of discretion, as well asthe factors to be considered: 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 theevidence admissible against him, as well as society's interest in seeing that justice is done in a reasonably efficient and cost-effectivemanner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on anunrelated count. [Emphasis added.] Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed whendeciding whether to sever or not.

The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to theaccused and the public interest in a single trial. It is important to recall that the interests of justice often call for a joint trial. ... Severancecan impair not only efficiency but the truth-seeking function of the trial. 29 Finally, the Court identified a non-exhaustive list of particular factors to be considered.

These factors are not in dispute, andinclude: * 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.

Last, at para. 18; see also R. v. E.(L.) (1994), (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.), at p. 238; R. v.Cross (1996), (QC CA), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419; R. v. Cuthbert (1996), (BCCA), 106 C.C.C. (3d) 28 (B.C.C.A.), at para. 9, aff'd (SCC), [1997] 1 S.C.R. 8 (sub nom. R. v.

C.(D.A.)). [33.] No one factor is determinative; all must be weighed cumulatively in assessing whether or not the interests of justice requireseverance: Last, paragraph 44. 4.3: Analysis 4.3.1: Legal and Factual Nexus [34.] There is a substantial legal and factual nexus between the occurrences, particularly in light of my ruling that the evidence ofeach occurrence is admissible as other acts of discreditable conduct.

Rather than flimsy, the connections between the two occurrencesare considerable. 4.3.2: Prejudice [35.] Prejudice to the Accused in a single trial on both occurrences is minimized given that this is a judge-alone trial involving twosets of charges of similar gravity and circumstance. 4.3.3: Complexity [36.] This case is not complex from both an evidentiary and a legal perspective. 4.3.4: Admission of Evidence of Other Acts of Discreditable Conduct [37.] The admission of evidence of other acts of discreditable conduct in this case favours a single trial.

4.3.5: Possibility of Inconsistent Verdicts [ 38 .] The possibility of inconsistent verdicts is, like general prejudice, minimized in a judge-alone trial such as this. 4.3.6: Avoidance of Multiple Proceedings [ 39 .] There are no witnesses in common per se between the August and September occurrences. However, if severance was granted, each Complainant would have to testify twice: once at the trial involving her occurrence, and again as a “similar act” witness on the other occurrence. By necessity, two trials will take more time not only to complete, but to

schedule as well. Avoidance of multiple proceedings militates against severance. 4.3.7: Intention of the Accused to Testify [ 40 .] With respect to the Accused’s intention to testify, he is under no obligation to disclose his decision. Here, he has stated in a generic fashion that he may wish to testify on one occurrence but not the other based upon what he says are different viable defences for each occurrence. [ 41 .] 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 information could consist of the type of potential defences open to the accused or the nature of his testimony. However, he is not bound by his stated intention; he remains free to control his defence, as the case unfolds, in a manner he deems appropriate: Last , paragraph 26 . [ 42 .] No submissions were made on behalf of the Accused regarding the potential defences that may be different between the occurrences. As I understand it, identity is not an issue.

Given the anticipated evidence of each complainant that the Accused touched her pelvic area in a sexual manner during the course of yoga instruction, I find (as the Supreme Court did in Last at paragraph 29 ) that it is fairly probable that the Accused will have to testify on each occurrence in order to put forward his theory of each case. 4.4: Conclusion [ 43 .] In consideration all of the various factors discussed, I am of the view that the Accused has failed to demonstrate that the interests of justice in this case require severing the two occurrences.

Therefore, the application to sever is dismissed. 5.0: CONCLUSION [ 44 .] The trial will proceed on the three-count Information, 10-4333. During that trial, the evidence of the August occurrence will apply to the September occurrence, and vice versa, as evidence of other acts of discreditable conduct. Released: Friday, January 7, 2011. _____________________________________ Richard H.K. Schwarzl, Justice of the Ontario Court of Justice