R. v. Lyth, 2014 BCSC 214

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Lyth, 2014 BCSC 214 Date: 20140211 Docket: 26313 Registry: Vancouver Regina v. Tom Rosten Lyth The publication of any information that could disclose the identity of the complainants is prohibited pursuant to s. 486.4 of theCriminal Code Before: The Honourable Mr. Justice Kelleher Ruling on Severance Application Counsel for the Crown: L. KrivelI. KeeleyCounsel for the Accused: R. GillPlace and Date of Hearing: Vancouver, B.C. January 31, 2014Place and Date of Ruling: Vancouver, B.C.

February 11, 2014 Introduction [1] Tom Lyth is charged with 15 counts of sexual offences involving four complainants. [2] This is an application by the accused pursuant to s. 591(3) of the Criminal Code for severance of the counts on the Indictmentby complainant. [3] There are four complainants: 1. E.P., born January 12, 1958, the former sister-in-law of the accused and aunt of E.L.; 2. E.L., born September 24, 1999, the accused’s granddaughter; 3. S.M., born in 1994, a neighbour of the accused; and 4.

J.H.-W., born May 27, 1997, a neighbour of the accused and younger sister of S.M. [4] The alleged offences against the first complainant occurred between approximately December 1968 and December 1970. Thealleged offences in relation to the second complainant occurred between June 2007 and December 2010. The alleged offences againstthe third complainant occurred between April 1999 and April 2007. The alleged offences against the fourth complainant occurredbetween April 1999 and May 2006. Legal Principles [5] The relevant portion of s. 591(3) of the Criminal Code provides:

(3) The court may, where it is satisfied that the interests of justice so require, order (

a) that the accused or defendant be tried separately on one or more of the counts; … [6] The question then is whether the “interests of justice” require severance. This inquiry involves balancing the interests of allparties, including but not limited to the accused, the complainants and third party witnesses. [7] A reasonable balance must be struck between the public interest in a single trial and the risk of prejudice to the accused. Ingeneral, the proper administration of justice requires that a multiplicity of proceedings be avoided: R. v. Cross (1996),

(QC CA), 112 C.C.C. (3d) 410 (Que. C.A.). [8] The court must be mindful that the interests of justice often call for a joint trial, since severance can impair not only efficiencybut the truth-seeking function of the trial: R. v. Last, 2009 SCC 45 at para. 17. [9] Counts encompassing separate transactions and complainants but having an important factual nexus have been refusedseverance: R. v.

E.S. (2000), (ON CA), 129 O.A.C. 146 at para. 18, leave to appeal to SCC refused, 27862 (June 21,2000). [10] The accused has the burden of establishing, on a balance of probabilities, that the ends of justice require severance: R. v. M.O.B.(1998), 123 C.C.C. (3d) 270 at para. 26 (B.C.C.A); R. v. McNamara (No. 1) (1981), (ON CA), 56 C.C.C. (2d) 193 atpara. 119 (Ont. C.A.). [11] There is a presumption that juries are able to understand proper instructions.

As the Ontario Court of Appeal stated in R. v.Olah (1997), (ON CA), 33 O.R. (3d) 385 at para. 48 (C.A.): The administration of criminal justice proceeds on the assumption that juries will give effect to the instructions of the trial judge as to theuse that the jury can make of evidence that is before them. [12] The same principle was put this way by the Supreme Court of Canada in R. v. Corbett, (SCC), [1988] 1 S.C.R.670 at para. 38: … [I]t would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose.

This line ofthinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence isdetermined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of commonsense. Factors to Be Considered [13] The factors to be considered by the court on an application for severance are not static or exhaustive: Last at para. 18. Whileevery case may bring its own unique features that ought to be considered, these factors are usually important and of general application: (

a) the factual and legal nexus between the counts; (

b) the general prejudice to the accused, including if he wishes to testify on some counts and not others; (

c) the complexity of the evidence; (

d) the possibility of inconsistent verdicts and findings; (

e) the desire to avoid a multiplicity of proceedings; (

f) the possible use of similar fact evidence at trial; and (

g) the prejudice to the accused with respect to his right to be tried within a reasonable time. [14] I will consider each of these factors in relation to this case. (

a) Factual and Legal Nexus between the Counts [15] Mr. Lyth has been charged with very similar offences concerning all four complainants. All four were children at the time theoffences are alleged to have occurred.

Moreover, as the Crown submits, there are strong factual connections between the counts: (1) the complainants were all very young at the time; (2) some of the offences relating to J.H.-W. and S.M. took place in the presence of each other; (3) the sexual assaults on J.H.-W. and S.M. took place during the same timeframe, although they go on for a longer period for S.M.; (4) all of the offences took place in the home of Mr.

Lyth; (5) his wife was not home for the majority of the offences; (6) the offences occurred under the pretence of “play” and occurred for the latter three complainants in the “treehouse” and otherareas of the yard at his current home;

(7) Mr. Lyth was in a position of trust with respect to all the complainants; (8) although the incidents with E.P. took place many years earlier, they occurred in similar circumstances when no one else wasaround and he instructed her not to tell;

(9) Mr. Lyth’s use of opportunity to commit these offences in his own residence provides an understanding of the context in whichthe offences occurred and sheds light on his relationship with all the complainants and their families; and

(10) there is a factual overlap in the narrative and investigation of the offences by police officers, including the incidents involvingE.P. [16] The Crown argues that it would be artificial to separate the timing of and reasons for disclosure of all the complainants. [17] The defence submits that certain of these factual connections are overly broad and would be present in many cases of allegedhistoric sexual offences. (

b) General Prejudice to the Accused [18] Mr. Lyth’s presumed defences are denial or accident and his provisional intention is to testify. It is possible that he will testifyon some counts and not others. There may be some rationale for this; however, that is not determinative of the severance application. The interests of justice may require a joint trial in any event. (

c) Complexity of the Evidence [19] The evidence in this case, while coming from many witnesses and involving many counts, is straightforward and not complex. The mere fact that evidence is admissible on one count but inadmissible on another count is not, in itself, grounds for severance. I am ofthe view that the jury, if properly instructed, will be able to keep the evidence separate and make proper use of the admissible evidenceagainst the accused on each count. (

d) Possibility of Inconsistent Verdicts and Findings [20] The severance of counts may result in inconsistent verdicts and findings. The trier of fact will have to make a number ofcredibility assessments, including in relation to the accused if he testifies. It is possible that a witness who is believed in one trial maynot be believed in another. For example, the grandmother of S.M. and J.H.-W. may have to testify at both trials. Her credibility could bein issue and this could lead to different findings by different triers of fact. This ought to be avoided. (

e) Desire to Avoid a Multiplicity of Proceedings [21] Severance of counts would necessitate that key witnesses testify at potentially four trials, resulting in inconvenience, stress andupset to witnesses, as well as inefficient use of valuable court resources. This would also frustrate the truth-seeking process. [22] If severance were granted, the issue of similar fact could arise in all four trials. This could necessitate the calling of evidence ina voir dire on successive occasions. Vulnerable witnesses would have to testify multiple times. This is a strong factor against severance. (

f) Possible Use of Similar Fact Evidence at Trial [23] The Crown’s position is that there is a very strong similar fact argument to be made with respect to all four complainants. [24] The inquiry at this stage of the proceedings is not whether similar fact evidence is admissible. If an application is made foradmitting similar facts, that will be considered after the evidence is in at trial. Nevertheless, the possibility of a similar fact argument isan important consideration here. In R. v.

Arp, (SCC), [1998] 3 S.C.R. 339 at para. 52, the Court said: … [W]here the similar acts are alleged as part of a multi-count indictment, the consideration of the admissibility of similar fact evidencewill have to be taken into account in deciding whether the counts should be severed. [25] It is not necessary to go so far as to predict the result of an application for similar fact evidence at the time of the severanceapplication. The trial judge need only assess whether it has some possibility of success based on the submissions the parties have made:R. v.

Blacklaws, 2012 BCCA 217 at para. 43. [26] The Crown anticipates seeking a ruling that each of the complainants’ evidence be admitted as similar fact with respect to theother complainants’ evidence in order to: (

a) prove the actus reus; (

b) support each complainant’s credibility; (

c) rebut the anticipateddefences that the alleged incidents did not occur or that the contact was accidental; and (

d) show a system, routine or “modus operandi”of repeated conduct to support a pattern of propensity or behaviour. [27] I have reviewed the principles in relation to similar fact evidence: Arp; R. v. Handy, 2002 SCC 56; and R. v. Titmus (sub nom R.v. R.T.), 2004 BCCA 633. The questions the court must address in considering the admissibility of similar fact evidence are: (

a) whether the proposed evidence is reasonably capable of belief; (

b) whether the evidence is probative within the context of the Crown’s formulation of the issues in question; and (

c) whether, on a balance of probabilities, the probative value of the evidence outweighs its prejudicial effect. [28] Here, the Crown will be arguing at trial that several factors support the viability of a similar fact argument: (

a) the age of the complainants at the time of the sexual contact and the fact that they were all female;

(

b) the nature of the relationship between Mr. Lyth and all four complainants, i.e. a position of trust as caregiver and playmate. He also had some sort of relationship with the families of all four complainants as well; (

c) the incidents involving all four complainants occurred at his residence; (

d) the area of the residence in which the incidents occurred in relation to E.L., J.H.-W. and S.M. was the same: the “treehouse”, balcony and back lawn area of his yard; (

e) the fact that other children were present during many of the incidents with all four complainants; (

f) the fact that no other adult was in the immediate vicinity when the incidents with all four complainants occurred; (

g) the “playful” atmosphere in which a number of the incidents occurred; (

h) the area of the body that was touched and the manner in which it was done, i.e. all four complainants were fondled and there was no ejaculation with respect to any of them. Three of them allege to have been digitally penetrated; (

i) the fact that he will be alleged to have instructed S.M., J.H.-W. and E.P. not to tell; (

j) he wore a certain pair of blue and white shorts with some of the complainants and his penis was hanging out; (

k) the fact that the incidents involving all four complainants occurred primarily in the summer or during school holidays; (

l) the friendly but persistent manner of the accused; (

m) the vulnerable nature of all four complainants; (

n) the relevance of the evidence to the defences of accident, innocent touching and denial; and (

o) the lack of direct evidence supporting collusion. [ 29 ] Again, the defence argues that many of these factors are overly broad and would be present in almost every case concerning historic sexual offences. [ 30 ] I conclude the Crown has a viable argument to make with respect to similar fact evidence. I make no further comment on its possibility of success. (

g) Prejudice to the Accused with Respect to his Right to be Tried within a Reasonable Time [ 31 ] This is not a significant factor because the accused has waived any delay arising from severance. The trial is currently scheduled for April 2014. Conclusion [ 32 ] I conclude that severance should not be granted. At the hearing of the application, I indicated that severance with respect to the latter three complainants was dismissed. I am also dismissing the application with respect to E.P.

Although the allegations are that the incidents occurred forty years ago, I agree with the Crown that there is an arguable case to be made with respect to similar fact and that it would be artificial to separate the timing of and reasons for disclosure of all the complainants, including E.P. [ 33 ] Moreover, if the counts related to E.P. were severed, there would be a great deal of duplication in calling evidence. [ 34 ] I am not persuaded the accused has established that the ends of justice require severance of any of the counts. [ 35 ] The application is dismissed. “Kelleher J.”