R. v. Brahaney, 2016 ONCJ 132

CITATION: R. v. Brahaney , 2016 ONCJ 132 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. Laura Brahaney and Jake Hopwood Before Justice David M. Paciocco – Ottawa, ON Reasons on Laura Brahaney Severance Application Released March 9, 2016 Mr. M. Geigen-Miller ……….……………………………………………………..for the Crown Mr. M. Smith …..…………….…………………………………for the Accused, Laura Brahaney Ms. N. Chug …………………………..……………………….…for the Accused, Jake Hopwood Paciocco J. I. Introduction [ 1 ] Ms. Laura Brahaney has applied for an order severing the counts in a joint information laid against her and co-accused person, Mr. Jake Hopwood, pursuant to section 591(3) (

a) of the Criminal Code . Specifically, she asked me to sever the counts pertaining to a criminal allegation in the Ottawa area from the counts alleging crimes in Richmond Hill, in the York Region of Ontario. [ 2 ] Initially, Mr. Hopwood had joined in that application. He has since abandoned his severance request due to concern that granting a severance will cause delay in resolving the York Region charges, and he is anxious to have these matters disposed of as soon as possible. [ 3 ] This, then, is my ruling on Ms. Brahaney’s severance application. [ 4 ] The “Ottawa” allegation is that on September 5, 2014, Ms.

Brahaney enticed a male complainant, Justin Huynh, into meeting with her after promising sexual services, and that after the two met around 10:30 p.m., they went to the complainant’s apartment. The Crown contends that Ms. Brahaney left shortly after, facilitating the entry of Mr. Hopwood and Mr. Traevonne Mattis. Along with Mr. Hopwood, the Crown alleges that Ms. Brahaney assaulted Mr. Hunyh and stole from him. The complainant was then taken to a phone, and was forcibly made to attempt to contact his father to deliver a ransom. The father was not reached.

The Crown claims to have evidence permitting the inference that a motive for this robbery and abduction was Ms. Brahaney’s desire to get funds to take a trip to Toronto. [ 5 ] The Crown alleges that after the failed attempt to contact the complainant’s father, the complainant was then taken to Ms. Brahaney’s townhouse where he was kept captive and tortured. Ultimately on September 6, 2014, the two accused persons left in Ms. Brahaney’s Hyundai, Tuscon vehicle in the direction of Toronto, along with the complainant. Alleged co-conspirators, Mr. Mattis, and Ms.

Lisa Wooley were also present. [ 6 ] The Crown alleges that near Gananoque, Ontario, the complainant was taken into the woods by Mr. Hopwood and Mr. Mattis, choked into unconsciousness, and abandoned. [ 7 ] As a result of this incident Ms. Brahaney and Mr. Hopwood are charged with 10 counts, including unlawful confinement, kidnapping, robbery and aggravated assault. Ms. Brahaney also faces a breach of undertaking charge. [ 8 ] The “York” incident is said to have occurred on September 7, 2014, the following day. Once again, the Crown allegation is that Ms. Brahaney enticed a male complainant, Mr.

Linton Campbell, into meeting with her after promising sexual services. The Crown contends that these arrangements were made, in part, while Ms. Brahaney was en route from Ottawa during the trip in which Mr. Hunyh was confined and then assaulted. The Crown alleges that Ms. Brahaney had attempted to set the meeting up at Mr. Campbell’s home, but he would not agree, so the meeting took place at a motel.

[9] Once again, the Crown allegation is that Ms. Brahaney entered the meeting location with the complainant, facilitating the entryof co-conspirators, in this case, three black males - including Mr. Hopwood, and Mr. Mattis - as well as an East Asian male. These menare alleged to have assaulted the complainant and to have stolen from him. [10] During his confinement, Mr. Campbell’s car was allegedly taken by Ms. Brahaney, and used to drive to his home, where Ms.Brahaney attempted to enter his bedroom but was told to leave by Mr. Campbell’s then wife. While Ms.

Brahaney was doing all of this,the complainant was attacked and badly injured, but no ransom demands were made. [11] As a result of this incident, Ms. Brahaney and Mr. Hopwood are charged jointly with 4 counts, including unlawful confinement,robbery, and aggravated assault. Ms. Brahaney is also charged with property related offences involving Mr. Campbell’s motor vehicle,and with the offences of break and enter, and breach of undertaking. II.

The Law and Analysis [12] As a general rule, pursuant to section 591(1) of the Criminal Code, the Crown is entitled to join the counts it wishes in the sameindictment or information. However, pursuant to section 591(3) (

a) the Crown discretion to do so is subject to review. A judge can severjoined counts, provided the accused person seeking the severance demonstrates, on the balance of probabilities, that “the interests ofjustice so require.” In ruling on a severance request, the trial judge must balance the interests of the accused to make full answer anddefence and to enjoy the right to be tried on admissible evidence, against society’s interest in seeing that justice is done in a reasonablyefficient and cost-effective manner: R. v. Last 2009 SCC 45 , [2009] 3 S.C.R. 146, at para 16. [13] In R. v.

Last, supra, at para. 18, the Court set out a non-exhaustive list of factors to be considered in determining whether to orderseverance: “Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexityof the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire toavoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to becalled; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence ofantagonistic defences as between co-accused persons.” [14] In this case, Ms.

Brahaney urges that the interests of justice require severance of the two incidents, based on the relevant factors.She sees the alleged incidents as involving discrete events, with little factual overlap, and she is concerned about having to cope with thecomplications of a trial in which a detailed examination of both allegations will be needlessly prejudicial, raising the risk of both moralprejudice and reasoning prejudice. She also relies on the inconvenience to York area residents of prosecuting a Richmond Hill matter inan Ottawa courthouse. [15] Most significantly, Ms.

Brahaney contends that trying the Ottawa and York incidents together will undermine her ability to makefull answer and defence by effectively depriving her of the right to decide whether to testify. Specifically, her counsel, Mr. Smith, hasadvised the Court that she intends to testify about the Ottawa counts, but not the York counts. [16] When explaining her decision Mr. Smith said that, tactically, she would have no choice but to testify relating to the Ottawaallegations, given the account of events attributed to Mr. Mattis and Ms. Wooley. They paint Ms.

Brahaney as the “ring-leader” in theHuynh offences, a claim Ms. Brahaney will have to answer. [17] Mr. Smith says that the York incident is different because there is less evidence against Ms. Brahaney - including an absence ofevidence placing her inside the motel room where the robbery and abduction took place. Mr. Smith contends that this makes it realisticthat she may not choose to testify about the Campbell matters. [18] In my view, this is a case where there are compelling interests in trying the two incidents, the Ottawa charges relating to Mr.Huynh and the York incident related to Mr.

Campbell, in one trial. I understand why the Crown would choose to join the charges relatingto both events. [19] I say this because I disagree with Ms. Brahaney’s contention that there is little factual overlap between the events, even bearing inmind different police forces took the lead during the two investigations. Mr. Smith conceded that there is a temporal connection betweenthe two incidents, but there is more than that. There is significant factual overlap in the narrative evidence that will be presented duringthe two trials. According to the Crown allegation, the offences involving Mr.

Campbell are said to have been put into motion, throughelectronic messages sent during the same trip in which Mr. Huynh was beaten and abandoned. The same car was used in connection withboth offences. Moreover, aside from the alleged complainants who do not know each other, the key witnesses relating to both events areMr. Mattis, and, to a lesser extent, Ms. Wooley. In addition, incriminating electronic messages relating to both offences were discoveredpursuant to the same search of Ms.

Brahaney’s phone. [20] More significantly, the Crown urged persuasively that evidence relating to the Huynh incident is apt to be admissible as similarfact evidence in assisting in the prosecution of the Campbell allegations. The availability of similar fact evidence is a relevantconsideration that plays against granting a severance application: R. v. W. (J.N.) 2010 ONSC 1057 , [2010] O.J. No. 730 at para57 (Ont. S.C.J.) [21] Although Mr.

Geigen-Miller intimated that there are a range of uses that “count-to-count” similar fact evidence can properly beput to in this case, if the charges are joined he chose to illustrate the relevance of the Huynh incident in prosecuting the unlawfuldetention and aggravated assault allegations involving Mr. Campbell, by focusing on proof of Ms. Brahaney’s “party liability” in theCampbell incident under section 21(2) of the Criminal Code. Specifically, the Crown position is that even if Ms. Brahaney did notintend to aid in an abduction and assault of Mr. Campbell (a proposition the Crown contests), given Ms.

Brahaney’s knowledge of whatMr. Hopwood and Mr. Mattis did in the Huynh incident in the days immediately before, a reasonable person in Ms. Brahaney’s positionwould have known when conspiring with these men to rob Mr. Campbell that there was a real risk that he, too, would be unlawfullyconfined and assaulted.

[22] It is not the role of a trial judge considering a severance application to decide on the admissibility of similar fact evidence, and Ishould not be taken to be doing so. Trial judges conducting severance applications are not to resolve the admission of similar factevidence at the severance application stage for practical reasons having to do with the inadequacy of the evidentiary foundation, andbecause the accused bears the burden on a severance application, whereas the Crown bears the burden at trial of satisfying the similarfact evidence rule.

Accordingly, during a severance motion the trial judge is simply to determine whether a “count-to-count” similar factevidence application is viable: R. v. W. (J.N.), supra; R. v Minister 2012 ONSC 1040 , [2012] O.J. No. 741 at para 46 (Ont.S.C.J.); R. v. B. (I.), [2013] O.J. No. 1615 at para 26 (Ont. S.C.J.). [23] In R. v. Carson [2015] O.J. No. 2528 at paras 37-42 (Ont. S.C.J.), Justice Hill, relying on R. v.

Blacklaws (2012), 2012 BCCA217 , 285 C.C.C. (3d) 132 (B.C.C.A.), aff’d by the S.C.C. 2013 SCC 8, described this as a “possibly admissible” standard. [24] If the trial judge conducting the severance application concludes, then, that the similar fact evidence application is “viable,”making the admissibility of the similar fact evidence “possible,” that judge should resolve the severance application while bearing inmind that even if the charges are severed, the material similar fact evidence relating to the severed charges will be presented at the trialof the remaining counts, in any event. [25] What, then, of this case?

Having looked at all the circumstances, and without resolving the ultimate issue of admissibility, I amsatisfied that the similar fact evidence application described by the Crown is viable, making the admission of the Huynh incidentspossible during the prosecution of the Campbell charges.

The “probative value” theory offered by the Crown has an air of reality, and therisk of moral and reasoning prejudice is apt to be lessened, given that this is not a jury trial. [26] The overlap I have described – common narrative elements and witnesses, including the proposed similar fact evidence – hassignificant implications for the severance application. [27] First, and most obviously, trial efficiency would be enhanced by trying the two temporally-related events together.

Theoverlapping evidence would not have to be repeated, and the core components of the Huynh allegations would not have to be presentedtwice. [28] Second, a decision to sever the incidents will raise a risk of inconsistent verdicts that would not exist in an integrated trial. Anintegrated trial would remove the need to have distinct credibility and reliability conclusions drawn relating to the evidence of Mr. Mattisand Ms. Wooley, and would invite only one evaluation of the Huynh allegations. [29] I must also consider the prospect of overlap in the legal issues, should the charges be severed.

It is too soon to know, forexample, whether the defence will challenge the legality of the search of Ms. Brahaney’s phone or car, but if this occurs, an integratedtrial would remove the need for the conduct of two Charter challenges, with the prospect of inconsistent outcomes that this could carry. [30] Given that I see these to be compelling reasons favouring the conduct of an integrated trial, the remaining issue is whethercountervailing considerations show, on the balance of probabilities, that severance is nonetheless required in the interests of justice. [31] As indicated, Ms.

Brahaney’s most forceful submission is that refusing the severance application will functionally compel her totestify about the Campbell allegations, when she otherwise would not do so. [32] To be sure, the right to make an integral choice whether to testify has to be zealously guarded. This is a critical component of theright to make full answer and defence.

Moreover, while tactical compulsion – the felt-need to testify because of the weight of theevidence – does not offend self-incrimination principles directly due to the absence of “legal compulsion,” the system of justice shouldseek to protect the freedom of choice by an accused person about testifying: R. v. Darrach (2000), 2000 SCC 46 , 148 C.C.C.(3d) 97 at 121-124 (S.C.C.); R. v. Warsing (2002), 2002 BCCA 131 , 167 C.C.C. (3d) 545 (B.C.C.A.); R. v. Dubois (1985), (SCC), 48 C.R. (3d) 193 (S.C.C.); R. v.

Hart 2014 SCC 52. [33] The fairness interests in permitting accused persons to make the tactical choice whether to testify free from pressure caused byprosecutorial choices about how to prosecute a case is not so overwhelming, however, as to trump automatically the Crown prerogative,and the public interest in an efficient and effective trial. To achieve an appropriate balance the Supreme Court of Canada endorsed tworelated rules in R. v.

Last, supra. [34] First, the Court held at para 26 that a bald assertion of an intention to testify on some charges, and not on others, is insufficient.Before testimonial choice is a factor to be considered, the subjective, stated intention of the accused person to testify on some charges,but not others, must be objectively justifiable: “[W]hile … the trial judge should not substitute his or her own view for that of the accused to determine that the accused should testifyor not … the trial judge must simply satisfy him-or herself that the circumstances objectively establish a rationale for testifying on somecounts but not others.

The burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, thereis substance to his testimonial intention. The information could consist of the type of potential defences open to the accused or the natureof his testimony.” [35] Second, the Court held, at para 27, that: “an accused’s provisional intention with respect to testifying… should be given significant weight, [but] it is … one factor to be balancedwith the others. An accused’s stated and objectively justifiable intention to testify on some but not all counts is not necessarilydeterminative ….

It can be counterbalanced by other circumstances that the judge finds may prevent the accused from testifying, or beoutweighed by factors that demonstrate that the interests of justice require a joint trial.” [36] How do these rules affect this application? [37] I accept Ms. Brahaney’s “subjective” claim that if the evidence materializes as the Crown claims, she will feel compelled,

tactically, to testify on the Ottawa allegations, but not about the York allegations. I have not required evidence to verify this for two reasons. First, her intention has been communicated by an Officer of the Court, who would appreciate it to be unethical to contrive a claim in order to achieve a litigation strategy. Second, requiring sworn testimony to verify a subjective intention to testify on counts would serve little practical advantage, given that an accused person cannot be held later to an undertaking to do so: R. v.

Last , supra at para 26 . [ 38 ] I am not persuaded, however, that, “objectively,” there is substance to her wish to testify on some counts, but not others. When all of the circumstances are considered, Mr. Smith has overstated the difference in tactical pressure that Ms. Brahaney is apt to feel between the two sets of charges. [ 39 ] This is not a case where Ms. Brahaney has informed the court that she is contemplating different defences that could reasonably lead to divergent trial strategies. Her primary claim is that she will have to testify about the Ottawa charges involving Mr.

Huynh, in order to answer the claims offered by Mr. Mattis and Ms. Wooley that she is a ringleader. Essentially, the submission is that she will have to testify to discredit these witnesses only with respect to the Ottawa charges. [ 40 ] This submission disregards, however, that the Crown has presented a viable case for leading this same evidence in support of the Campbell allegations by way of similar fact evidence. Simply put, Ms.

Brahaney is as apt to have to join issue with the credibility and reliability of the Mattis/Wooley versions of the Huynh incidents when defending the Campbell allegations, as she is in defending the Huynh charges. [ 41 ] Mr. Smith also alluded to the relative strength of the case against Ms. Brahaney on the two allegations, urging that Ms. Brahaney will feel the tactical need to address the stronger Ottawa case. It is true that the Crown will have testimony of the complainant in the Ottawa incident about Ms.

Brahaney’s presence during the offences, and her participation in them, that will be lacking in the York allegations, and that the Ottawa incident is supported by potentially incriminating electronic searches conducted on Ms. Brahaney’s phone. The Crown claims, however, to have considerable circumstantial evidence against Ms. Brahaney on the York charges. The information before me is that this includes electronic messages from Ms.

Brahaney’s alleged phone setting up the Campbell meeting at the motel where two of the men who travelled with her showed up to perpetrate the offences, high quality video evidence placing her at the motel, her possession of the complainant’s car while he was being unlawfully detained, and her continued association with Mr. Hopwood and Mr. Mattis after Mr. Campbell was beaten and robbed. When this is coupled with the similar fact evidence alluded to, the tactical pressures on Ms.

Brahaney to testify do not, objectively speaking, look materially more pressing for one set of charges than the other. [ 42 ] In making these findings I am not offering an opinion on whether Ms. Brahaney will need to testify if the Crown evidence is as described. Nor am I drawing a conclusion that I would encourage Ms. Brahaney to testify on both charges if she was my client. I am mindful that I am not to substitute my judgement on these issues for Mr. Smith’s or Ms. Brahaney’s.

I am simply pointing out that, when all of the circumstances before me are considered, there is not an objective foundation supporting Ms. Brahaney’s current, subjective intention to testify on the Ottawa charges but not the York offences. [ 43 ] In any event, even if I had found a convincing objective foundation for Ms.

Brahaney’s testimonial intention, this is not a case where I would exercise my discretion to sever the charges to preserve her tactical opportunity to choose whether to testify on some charges, but not others. [ 44 ] As indicated, there are compelling reasons why the Crown would want to try the matters together. Those considerations go far beyond the efficient use of court resources, which I agree, should not, on their own, ordinarily trump testimonial autonomy.

This overlapping evidence creates the risk of inconsistent findings. [ 45 ] Moreover, a court must be concerned about the implications of requiring witnesses to testify twice, particularly vulnerable witnesses such as Mr. Huynh, or “co-conspirator” witnesses such as Mr. Mattis and Ms. Wooley. They should not be put in a position of having to testify twice, and the Crown should not be expected to try to secure their co-operation twice, if this can be avoided without compromising unduly the relevant interests of the accused. [ 46 ] In addition, there is the interest of Mr.

Hopwood in protecting his Charter interest to have his trial within a reasonable time. It is not contested, nor could it reasonably be, that if severance is ordered, additional delay in hearing the York charges can be anticipated. [ 47 ] Nor does the risk of prejudice, if the two sets of charges are integrated, add to the weight of the severance request.

There is little material risk of moral or reasoning prejudice, given that this trial is before a judge alone. [ 48 ] As well, there is no foundation before me for believing that severance will induce antagonistic defences that would already occur. [ 49 ] Finally, there is no imposing risk of factual confusion or increased complexity that will impede either the ability of counsel or the Court to cope with an integrated case. III. Conclusion [ 50 ] In all of the circumstances, Ms.

Brahaney has not demonstrated on the balance of probabilities that it is in the interests of justice to grant severance, as requested. [ 51 ] I am therefore exercising my discretion to deny the motion. The allegations will be heard together. Dated at Ottawa this 9 th day of March 2016

_____________________________________ Justice David M. Paciocco