R. v. Jennings, 2023 NSSC 57

SUPREME COURT OF Nova Scotia Citation: R. v. Jennings , 2023 NSSC 57 Date: 20230221 Docket: CRH 510617 Registry: Halifax Between: His Majesty the King v. Ronald James Junior Jennings SEVERANCE DECISION PUBLICATION BAN: s. 486.4 and s. 486.5 of the Criminal Code Judge: The Honourable Justice Jamie Campbell Heard: February 1, 2023, in Halifax, Nova Scotia Counsel: Maura Landry, for the Crown Ian Hutchison, for the Defence By the Court [ 1 ] Ronald Jennings is charged with three counts on one indictment. He has applied for severance of the third count.

The charges relate to two incidents that are alleged to have occurred about 5 hours apart in the same public shower area at the Porter’s Lake Provincial Park on June 6, 2021. The charges with respect to the first incident are that Mr. Jennings is alleged to have exposed his penis to a person under 16 for a sexual purpose and invited the young person to touch his penis. The charge with respect to the second incident is that Mr. Jennings is alleged to have committed an indecent act of masturbation in the public shower area. Mr.

Jennings has applied to have the third charge, which relates to the second incident severed from the indictment so that there would be two separate trials. [ 2 ] Mr. Jennings, through his counsel, argues that there is no legal or factual nexus between the two incidents which he says are distinct. Mr. Jennings may wish to testify with respect to one incident but not with respect to the other. And the Crown has indicated that it intends to make an application to permit it to rely on similar fact evidence. Issue [ 3 ] Do the “interests of justice” require that Mr.

Jennings be tried separately with respect to the third count on the indictment? Facts [ 4 ] On the morning of June 6, 2021, a ten-year-old boy was showering in the men’s washroom at Porter’s Lake Provincial Park. He reported that while he was in the shower an unknown male put his penis under the shower door and said, “touch it”. He told the police that the man had an “Indian sounding” voice. He guessed that the person was 5 foot 8 to 6 feet tall and had a goatee beard. He said that the man was of normal build and was neither muscular nor fat.

The boy’s mother saw the man leave the washroom but was not able to provide any identifying features. He left in a silver vehicle, but the make, model and license plate number are not known. The RCMP were called. They could not locate either the person or the silver vehicle.

[5] Later that day, in the afternoon, two men were using the showers in the same washroom at the park. They were in adjacentshower stalls. One of the men said that a male person opened the curtain to his shower stall and looked inside. The person left and the manassumed that the person was just checking to see if there was anyone in the shower. When he was leaving the shower, he saw a man in thecommon area of the washroom. He said that the man was 25 or 26 years old and had a beard and blue eyes. He was wearing a grey cap.

The other of the two men using the shower at that time saw kneecaps on the floor of the adjacent shower stall. A male person then placedhis penis under the stall and began to masturbate. The man who had been using the shower rinsed off and left the shower. He said that themale person continued to masturbate for about a minute then turned and placed his buttocks under the stall for about 10 seconds. The malethen positioned himself on his knees again and kept masturbating under the stall for another 10 seconds. [6] The man using the shower left the washroom and waited outside for the person to come out.

A male came out of the washroom,and he accused the man of exposing himself under the stall. The man left in a grey coloured Hyundai with a kayak attached to the roof.The license plate was recorded and matched the plate attached to Mr. Jennings’ girlfriend’s car. Mr. Jennings and his girlfriend werecamping in the park at the time. [7] Mr. Jennings provided two statements to the police. A recorded statement given at the Halifax Regional Police headquarters hasbeen ruled inadmissible. A statement given to the police on June 6, 2022, has been ruled admissible. In that statement Mr.

Jennings saidthat he had not been in the washroom on the morning of June 6. He did say that he was in the washroom that afternoon and had beenaccused when he left the washroom, by the man waiting outside, of “stroking his dick”. He said that he had fallen while getting dressed.He denied masturbating in the public washroom. His defence to counts one and two is that the person observed by the boy was not him.His defence to count three is essentially that the complainant misunderstood what had happened and that he did not commit an indecent actin the public washroom.

Law [8] Section 591(3) of the Criminal Code provides that the court may order that an accused person be tried separately on one ormore of the counts on an indictment where the court is satisfied that the interests of justice require it. The onus is on the party bringing theapplication to show on the balance of probabilities that the interests of justice require severance. R. v. B. (M.O.), 1998 104 B.C.C.A. 279.The court has broad discretion in that regard. R. v. Last, 2009 SCC 45 , [2009] SCJ No. 45. That broad discretion must beexercised judicially. So it is broad but not unrestrained.

It involves a balancing of the accused person’s rights to be tried on admissibleevidence against them and society’s interest in seeing justice done in a way that it is efficient and cost-effective. [9] Severance can address situations in which more than one person is charged on the same indictment or in which one person ischarged with more than one count on the same indictment. The balancing of fair trial rights against the efficient and cost-effectiveadministration of justice would involve some different considerations in those two circumstances.

Having separate trials for peopleaccused of committing the same crime at the same time is not the same as having separate trials for one person accused of havingcommitted different crimes at different times. [10] In Last Justice Dechamps noted that the “obvious risk” when counts are tried together is that evidence that is admissible on onecount may influence the verdict on an unrelated count. Courts have shaped the broad criteria in Section 591(3) and have identified factorsthat can be weighed when deciding whether to sever or not.

The factors are not exhaustive but help to capture how the interests of justicemay be served in a particular case.

The factors include: the general prejudice to the accused, the legal and factual nexus between thecounts, the complexity of the evidence, whether the accused intends to testify on one count but not on another, the possibility ofinconsistent verdicts, the desire to avoid a multiplicity of proceedings, the use of similar fact evidence at trial, the length of the trial havingregard to the evidence to be called, the potential prejudice to the accused with respect to delay, and the existence of antagonistic defencesas between co-accused persons.

General Prejudice to the Accused [11] The Crown argues that because this is a judge alone trial there is very little risk that the trier of fact could be subject to faultyreasoning based on hearing other allegations. The trial judge would be able to properly assess the evidence with respect to each of thecounts. [12] That said, each count on an indictment must be proven individually on its own evidence. Evidence that points to guilt on onecount cannot be used to infer guilt on another charge on the same indictment.

The exception to that is when the Crown is successful inmaking an application to have evidence applied across charges referred to as the use of similar fact evidence. Legal and Factual Nexus [13] The charges each relate to offences that are alleged to have taken place on the same day and in the same public washroom. Eachof the offences involved an adult male exposing his genitals. The Crown says that the grey Hyundai vehicle with the same license plate isconnected to both incidents. In the morning incident the boy’s father took a picture of the vehicle at the campground, with the kayakstrapped to the roof.

The boy’s mother had seen the man who left the washroom enter a metal coloured sedan parked near the washroom.The father said that the silver Hyundai was the only metal coloured sedan that he saw in the campground at the time. In the afternoon oneof the men in the washroom took a picture of the vehicle leaving the area and it was the silver Hyundai owned by Mr. Jennings’ girlfriend. [14] The boy described the man’s beard as being short and like a goatee that went all around his face. He said that there was notmuch of a mustache. He said that the man was white.

The man who saw the person in washroom in the afternoon said that he had a lightbeard and was 25 or 26 years old. [15] There will be several common witnesses for the Crown. [16] The counts share some essential elements. The Crown says that those are in relation to “actus reus, date, time and jurisdiction”.The Crown would have to prove beyond a reasonable doubt that Mr. Jennings exposed his genitals to the boy in the morning on the firstcounts and to one of the men in the afternoon on the third count.

[ 17 ] The nexus is less clear that has been argued by the Crown. They are distinct events. There is no evidence to suggest that what happened in the morning and what happened in the afternoon were part of a flow of events or were part of the same transaction. They happened at different times of the day separated by about 5 hours. The complaints are different people. One is a child, and the other is an adult. One case involves the allegation of both exposing of the penis to a child and the invitation to touch it. The other involves no invitation to touch at all and the act of masturbation.

They are different. [ 18 ] The picture of the silver Hyundai and relating it to the event in the morning is based on the inference that because it was the only metal coloured sedan that the boy’s father could find that it must have been the one used by the person who exposed himself to the boy. The same silver Hyundai features in the charge that arose from the incident in the afternoon. That is an allegation of a connection between the two incidents, but it is a highly contested one. There is strong evidence that Mr.

Jennings was connected to the car that was photographed in the afternoon, but the evidence is considerably less convincing that the silver Hyundai was connected to the morning incident. [ 19 ] Whether there was a connection between the two incidents would be contested at trial. At this stage that cannot be used to support a factual nexus between the events. Complexity of the Evidence [ 20 ] This case does not involve a large volume of evidence or particularly complex evidence. The trial would not be a particularly lengthy one.

If two trials were required, rather than one, the court time required would not be substantial. Whether the Accused Wishes to Testify on One Count but not on the Other [ 21 ] Counsel for Mr. Jennings says that his client will want to testify on one count but not testify on the others. [ 22 ] Justice Watt in the Last decision noted that while an accused person’s provisional intention with respect to testifying is certainly a consideration that should be given significant weight, it is one factor among others.

A stated and objectively justifiable intention to testify on some but not all counts is not necessarily determinative in a severance application and it can be counterbalanced by other circumstances. The factor holds less weight when the accused states on a “vague possibility” of testifying. R. v. Legebokoff , 2104 BCSC 705. [ 23 ] There would be a reasonable prospect that Mr. Jennings may decide to give evidence with respect to the afternoon incident. He is connected to the silver Hyundai and there is evidence that places him in the washroom at that time. He admitted to being in the washroom at that time.

Depending on how the evidence of the complainant unfolds at trial with respect to the third count, Mr. Jennings may elect to give evidence to explain and contest what the complainant describes. [ 24 ] Mr. Jennings would have less reason to consider testifying with respect to the morning incident. It is for the Crown to prove beyond a reasonable doubt that he was the person that the boy saw in the shower. The boy was not able to identify Mr. Jennings as the person and the description he provided will be contested. [ 25 ] Mr. Jennings’ counsel has not suggested a vague possibility that Mr.

Jennings will want to testify on the third count but not testify on the first two counts. He has stated an objectively justifiable intention in that regard. Based on the evidence it is entirely understandable why Mr. Jennings may want to testify on count three but not on counts one and two. If severance is not granted, he will be deprived of that choice. Possibility of Inconsistent Verdicts [ 26 ] There are a number of overlapping witnesses. The Crown argues that there is the potential for inconsistent verdicts on credibility but fairly acknowledges that it is a relatively minor factor. R. v.

Zakuti , 2021 BCSC 2405 . [ 27 ] In this case while there are overlapping witnesses, the complainants are different people. As for the other witnesses there may be a potential that the trial judge in one case would find the person’s evidence to be credible and the judge in another matter find the evidence as it relates to that matter not credible. That would not be an inconsistent finding. If one judge found Mr.

Jennings not guilty with regard to one incident and another judge found him guilty with respect to the other that would only be an inconsistent verdict if one accepted that the same person had to have been involved in both matters. [ 28 ] The Crown noted that the inconsistency might arise if in one trial the judge granted the Crown’s application to use similar fact evidence and in the other trial the judge denied that application.

Those would not be inconsistent verdicts but different evidentiary rulings in different cases by different judges. [ 29 ] The concern for inconsistent verdicts is more pronounced when two people are alleged to have been involved in the same way in committing the same crime at the same time and place. If the trials are severed one may be found guilty and the other not, even though the evidence against them both was the same. Desire to Avoid Multiplicity of Proceedings [ 30 ] If severance were ordered in this case, there would be two trials rather than one. Neither trial would be particularly long or complex.

The overlapping witnesses would not be the complainants unless the Crown’s application for the use of similar fact evidence were allowed. Similar Fact Evidence [ 31 ] If the Crown is successful in arguing that evidence on one count should be admissible with respect to the others, that militates in

favour of one trial rather than two. A successful similar fact application establishes that there is a strong legal and factual nexus betweenthe separate allegations. Prejudice is reduced because the trier of fact is permitted to use evidence of one count in deciding the accusedperson’s guilt on the other. [32] The Crown is not required to make the similar fact application at the time of the severance application. It can defer that until thelast of its evidence has been tendered in the trial.

If that were to happen here, the Crown would argue that the evidence with respect to themorning incident could be used in deciding about the afternoon incident and vice versa. The issue in the severance application is whetherthat similar fact application has some possibility of success or whether it is reasonable to consider that it might succeed. R. v. R.C., 2020ONCA 159, paras. 37-39, R. v.

Blacklaws, 2012 BCCA 217, 285 C.C.C. (3d) 132 (B.C.C.A.) per Finch C.J.B.C. (dissenting) aff’d at 213SCC8, 2013 SCC 8 , [2013] 1 S.C.R. 403 (S.C.C.) [33] The test to be applied by the judge on the severance application involves a threshold that is considerably lower than the one forthe admission of similar fact evidence. [34] The Crown argues that the similar fact application will be viable based on the similarity of the circumstances and the evidence asbetween the alleged incidents.

Evidence of an accused person’s pattern of misconduct offers corroboration and negates coincidence whenthere are numerous similarities between the evidence of more than one complainant. The similarities do not necessarily lie in thedistinctive nature of the acts themselves but in the circumstances in which the acts occurred. Sometimes similar circumstances may bemore compelling than similarities or dissimilarities in conduct. R. v. S.C., 2018 ONCA 454, at para. 23.

If there are several complainantswith the same characteristics that may be evidence that the accused has a pattern of behaviour directed toward people with thosecharacteristics. [35] The Crown says that the similar fact application will argue that the inference can be made that the accused had a “situation-specific propensity”. In R. v. S.C. the Ontario Court of Appeal affirmed the trial judge’s conclusion that the evidence was sufficientlysimilar to raise the inference that the accused had a situation-specific propensity to seek out young females connected by familyrelationships.

Here the Crown says that similarities in both the circumstances and the acts suggest that the similar fact application isviable. Both incidents happened on the same day, in the same location. In both cases the complainants were male. In both the person kneltin his shower stall and exposed his naked penis. In both cases the complainants are alleged to have been strangers to the accused with noprior interaction. [36] There are two alleged incidents and not several. Two incidents can form a pattern but to do so there would have to be strikingsimilarities that would negate the potential of coincidence.

The presence of distinctive characteristics can make up for the absence ofrepetition. While the incidents happened in the same place, they were not part of a single transaction or a flow of events. They are twodistinct incidents. And there are differences. In one, very significantly, the complainant was a child. The person is alleged to have spokento the boy and invited the boy to touch his penis. There is no evidence that the person masturbated. The encounter took about 5 minutes.In the second incident, the complainant is an adult.

There is no evidence that the person who masturbated spoke any words at all to theman. There are similarities between the two incidents, but they do not amount to a pattern or modus operandi. There is no distinctivefeature or “trademark”. [37] The Crown defines the “situation-specific propensity” by the exact location and the same date along with a similarity in the typeof behaviour. The differences in that regard are also important bearing in mind that there are two incidents and not a series. The evidenceattaching Mr. Jennings to the afternoon incident is substantial.

The evidence attaching him to the morning event is considerably weaker.There are two similar incidents, but they do not establish a pattern of misconduct or a situation-specific propensity, the probative value ofwhich would outweigh prejudicial effect of its admission. [38] The issue is not whether a similar fact application should be granted or denied. It is whether it is viable at all. The similar factapplication in this case would not be viable. Conclusion [39] In this case there is evidence that places Mr. Jennings in the Porter’s Lake Provincial Park on June 6, 2021.

There is evidencethat the person who left the men’s washroom in the afternoon of that day at around 3pm was Mr. Jennings. His defence to the charge willbe that there was a misunderstanding. He did not masturbate in front of the complainant but had fallen and was struggling with hisclothing. [40] Mr. Jennings denies that he was even in the washroom at the park when the incident happened in the morning. [41] The prejudice to him of considering the incidents together is significant.

He has two very different defences and would haveobjectively reasonable justification for testifying with respect to one and not the other. A trial on both counts would deprive of him thatchoice. [42] The Crown has indicated that it will make an application to permit the use of similar fact evidence whether or not severance isordered. Given that there are only two incidents with no distinctive elements that suggest a “trademark” or pattern of behaviour orsituation-specific propensity the application is not viable. [43] There are two incidents, with two complainants.

They happened in the same place on the same day, but they are different events.They are in no way different aspects of the same incident. They are different charges alleging different behaviour. The connection of Mr.Jennings to one is much stronger than to the other. Separate trials with respect to the two incidents will result in more trial time beingrequired. But Mr. Jennings has different defences to put forward with respect to each and it is reasonable for him to want to give evidencewith respect to one and not the other. [44] The application for severance is granted.

Campbell, J.