R v Fox, 2023 ABCJ 115

In the Alberta Court of Justice Citation: R v Fox, 2023 ABCJ 115 Date: 20230516 Docket: 220156954P1 Registry: Lethbridge Between: His Majesty the King Crown - and - Levon Fox Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify [LS and JS] must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Decision of the Honourable Justice P.G.

Pharo Introduction [ 1 ] The Defence seeks to sever two counts from Information 220156954P1, which was laid against Levon Fox on February 16, 2022. [ 2 ] The Information currently consists of the following charges, summarized below: Count 1: On or about May 30, 2021, Levon Fox sexually interfered with LS, who was under 16 years old contrary to s151 of the Criminal Code . Count 3: On or about the December 16, 2021, Levon Fox sexually interfered with LS, who was under 16 years of age, contrary to s151 of the Criminal Code .

Count 5: On or about December 16, 2021, Levon Fox sexually interfered with JS, who was under 16 years of age, contrary to s151

of the Criminal Code. [3] The alleged complainants, LS and JS are sisters, and at the time were living together with their mother AC, on the BloodReserve. At the time of these allegations LS was seven-years-old, and her sister JS was eight-years-old. Since these allegations are saidto have occurred in May and December 2021, I assume the girls are now two years older, being around nine and ten-years-old. [4] The Crown alleges that Levon Fox touched the two girls sexually with his hands while they were asleep or recently wakenedin their beds.

One such incident is alleged to have occurred on May 30, 2021, with respect to LS. The other incident, involving both girlsis alleged to have occurred on December 16, 2021. The Crown states that both girls were together in the same house at the time thetouching is alleged to have occurred. [5] The Defence seeks to sever Counts 1 and 3, which relate to LS, from Count 5 which deals only with JS. It should be notedthat there is an overlap on the face of this application, namely that Count 3, dealing with LS is alleged to have happened on December16, 2021, on the same day and place as Count 5, dealing with JS.

The Defence Position [6] The onus is on the accused, pursuant to s591(3)(

a) of the Criminal Code to satisfy this Court on a balance of probabilitiesthat the interests of justice require an order for severance: R v Arp, [1983] 3 SCR 339. [7] The Defence argues for severance because it states that because there are two complainants, if there is only one trial, theaccused would be prejudiced because there would be the risk of cross-pollination of credibility across all three counts. In other words, ifthe Court finds a complainant credible on one count, it is more likely to find her credible on the other counts.

Since it seems to be agreedthat credibility will be a major issue, this is a significant concern. This is often referred to as moral prejudice. The second concern of theDefence is propensity reasoning, or reasoning prejudice, namely that there is a concern that if the accused is found guilty on one count,then the Court might reason that he might have a propensity to have committed the allegations in the other two counts, which would beprejudicial to the accused. The Crown Position [8] The Crown argues that in this particular case, the interests of justice do not require an order for severance.

The Crown saysthat there is overlap in this case, in that the allegations on December 16, 2021, involve both the complainants, being on the same day atthe same place, with similar alleged offences, so to split them into two separate trials would not serve the interests of justice. The Crownsays that it plans to argue for a similar fact ruling, across the counts, which it argues is a strong factor weighing against severance.

TheCrown also says it will seek to admit extrinsic similar fact evidence, which arises from a conviction after a guilty plea by Levon Fox totwo counts of sexual interference in 2020, which the Crown alleges have similar circumstances. The Crown states that the case lawindicates that in a severance application, the judge must weigh whether such similar fact application could possibly succeed, and if so,the Court should generally not grant severance. The Crown also says that if the trial is severed into two, then it will call bothcomplainants in both trials.

Given that these girls are now nine and ten, it would be very difficult for them to testify in court about theseallegations of sexual touching, and to require them to do so twice may be harmful. The Law on Severance [9] The Supreme Court of Canada gave some direction in a severance case, R v Last, 2009 SCC 45 , [2009] 3 SCR 146(Last) where it stated as follows: 16 The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required inthe interests of justice, as per s. 591(3) of the Code.

The interests of justice encompass the accused's right to be tried on the evidenceadmissible against him, as well as society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner. Theobvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count. 17 Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed when decidingwhether to sever or not.

The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to the accusedand the public interest in [page156] a single trial. It is important to recall that the interests of justice often call for a joint trial. Litchfield,where the Crown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example.Severance can impair not only efficiency but the truth-seeking function of the trial. 18 The factors identified by the courts are not exhaustive.

They simply help capture how the interests of justice may be served in aparticular case, avoiding an injustice.

Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexusbetween the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibilityof inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trialhaving regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonabletime; and the existence of antagonistic defences as between co-accused persons: .... [10] In my view, it is helpful to review the facts in the Last case to give context to that decision.

Mr. Last faced one indictmentwith counts relating to two incidents involving sexual assaults on two victims who did not know each other. He applied for a severanceorder before trial, which was denied. The matter went to trial, and he was convicted. The matter then went to the Supreme Court ofCanada, which ruled that in that case there should indeed have been a severance order. The first incident occurred in September 2003,and the complainant SM invited Mr. Last into her apartment. She said that once inside, he pulled out a gun, put it to her head, and

proceeded to sexually assault her. The second incident occurred about a month later. The complainant there, MA, met Mr. Last at a barand they went to her home with a few other people. The others all left, leaving Mr. Last and MH alone in the house. It was alleged heattacked her with a tea mug, and choked her until she was unconscious, then sexually assaulted her. [11] As noted, the Supreme Court held in Last that these two counts should have been severed and tried separately. [12] I will proceed to weigh the relevant factors set out in the Last case, as well as other factors that are in my view important.

General Prejudice to the Accused [13] The prejudice the Defence refers to is what is called moral prejudice, which is that the trier of fact will conclude that theaccused committed the other counts because he is found guilty of some counts because he has a discreditable character or is a badperson. This is not permissible, because a person should not be convicted because they have a bad character.

Although this will be ajudge alone trial, with no jury, there is such a risk when there is trial with multi-count information. [14] There is also the risk of reasoning prejudice, or propensity reasoning, in that if found guilty on one count the trier of factmight be inclined to think that the accused had a propensity for committing this type of offence and convict on the others. [15] In the Last case, there was concern about propensity reasoning because of the visual evidence relating to MH, or the secondincident, which included pictural representations of the injuries.

On the other hand, the alleged first incident with a gun and repeatedsexual assaults, included inherent psychological and emotional distress. This case does not involve the kind of graphic evidence, withdifferent complainants, at different times and places, which would weigh more towards severance. [16] The Defence references the case of R v JCL, 2012 ONSC 6603 (JCL). The facts in that case were that the accused wascharged with sexually assaulting his stepson and his step-grandson some 20 years later.

The Court there ordered a severance becausesome reasoning prejudice had been shown, and there were no obvious or at best minimal benefits to a joint trial. However, in JCL, theCourt held that there was no overlap of transactions, in that they were different complainants, twenty years apart. Proof of the elementsof one incident did not assist the proof of the other. The Court held that there was a lack of a strong factual or legal nexus. The Crownargued that they were going to call similar fact evidence, but the Judge could not come to a conclusion on the evidence before him.

Theseare substantial differences from the case at bar. [17] The Defence also referred to the case of R v JM, 2011 ONSC 3924 , [2011] OJ No. 3218 (JM). In JM there were twocounts of indecent assault laid against JM. In the first count it was alleged that JM assaulted his daughter DC 30 to 40 times over a periodof four years at their home. The other count related to JM’s son RM and involved three incidents. The Court ordered severance, pointingto different complainants, different genders, and potentially little temporal connection.

There were 30-40 allegations with respect to DC,but only three relating to RM, which would increase the risk of prejudice to the accused if there was a conviction on some or all of thecharges with respect to DC. However, in the case at bar, we have two sisters of about the same age, and there is actually temporaloverlap on two of the counts, that is, they are alleged to have happened at the same time and at the same place.

Here, there are twocounts for one complainant, and only one count for the other complainant, which is another significant difference from the JM case. [18] In the case at bar the Crown acknowledges some prejudice to the accused if the counts are not severed but argues that becauseof the overlap on time and place on at least two of the counts, the accused, where there is a judge alone trial, faces the same risk ofprejudice if there is a severance. Furthermore, the Crown submits that if the counts are severed, it intends to call similar fact evidence.

Insummary, the Crown states that even if the charges are severed, the trier of fact will hear the evidence of both complainants in both trialsin any event, so the severance does not increase the prejudice to the accused in any substantial way. [19] In my view, with respect to general prejudice to the accused, I acknowledge that there is a risk of some moral and reasoningprejudice to the accused, but in the circumstances of this case, such risk will not be substantially greater than if there were two severedtrials, because the Crown has stated it plans to call both complainants in both trials.

This factor marginally favours severance. The Legal and Factual Nexus Between the Counts [20] In the Last case, the Court held that factual and legal nexus between the two counts was thin. This is because the Court foundthat they involved different complainants who were strangers, different locations and different times. The Court found that legally, thetwo counts raised different legal issues, one raising consent and one dealing with identity.

At trial, the Crown agreed that none of theevidence qualified as similar fact evidence. [21] As a result, the Court in Last ruled the nexus was so tenuous as to hardly bear any weight in favour of a joint trial. [22] In the case at bar, there is a factual nexus, in the sense that the complainants were sisters who lived in the same house, andtwo of the counts overlapped to the extent they were the same charge on the same day in the same place. Another major factor in thiscase is that similar fact evidence may possibly be admissible.

With respect to the legal nexus in the case at bar, the charges are the same,and it appears that the defence is the same, so there is a legal nexus. [23] In the JCL case the Court stated in paragraph 19: A factual nexus often refers to a continuity of events, time and means.

Where there is a clear factual nexus, the logic of a joint trial ismore compelling than where there are multiple sets of events, linked together only by the identity of the person charged and the placewhere the events occurred: ... [24] In my view, in the case at bar there is both a clear factual and legal nexus, and overlapping facts, which weighs strongly

against severance. The Complexity of the Evidence [ 25 ] It appears that the evidence in this case will not be complicated. [ 26 ] In my view this would be a neutral factor. Whether the Accused Intends to Testify on One Count but Not Another [ 27 ] In the submissions the Defence stated that Levon Fox does intend to testify, likely with respect to both counts. In the Last case the Court held as follows: 26 Both the Crown and the defence submit that the accused's intention should be objectively justifiable. This requirement is, indeed, a threshold.

The accused's expression should have both a subjective and an objective component. However, while a formulaic expression of a subjective intention is not sufficient in and of itself to discharge the accused's burden to have the counts severed, the trial judge should not substitute his or her own view for that of the accused and determine that the accused should testify or not. Rather, the trial judge must simply satisfy him- or herself that the circumstances objectively establish a rationale for testifying on some counts but not others.

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: Cross , at p. 421.

However, the accused is not bound by his stated intention; he remains free to control his defence, as the case unfolds, in a manner he deems appropriate. 27 While an accused's provisional intention with respect to testifying is certainly a consideration which should be given significant weight, it is but one factor to be balanced with all the others. An accused's stated and objectively justifiable intention to testify on some but not all counts is not necessarily determinative of a severance application.

It can be counterbalanced by other circumstances that the judge finds may prevent the accused from testifying or be outweighed by factors that [page160] demonstrate that the interests of justice require a joint trial. 30 I conclude that although Mr.

Last's intention to testify on one set of counts and not the other was objectively justifiable, it did not constitute, in this [page161] case, a significant factor in view of the likelihood that his decision whether or not to testify would be the same in relation to both sets of counts. [ 28 ] It seems from the Defence submissions that Levon Fox is likely to testify as to both counts, and not only one. The Defence therefore suggests it should be a neutral factor. I agree.

The Possibility of Inconsistent Verdicts [ 29 ] In my view there may be a possibility of inconsistent verdicts if there is a severance and there are two trials. This is because the main witnesses, the two young girls LS and JS, will likely testify in both trials. According to the submissions, the only issue for the trial will be the credibility of the two complainants, and the accused if he testifies. If there are two trials, it opens the possibility that one of those witnesses could be found credible in one trial, and not the other, giving rise to different verdicts. [ 30 ] This factor weighs against severance.

The Desire to Avoid a Multiplicity of Proceedings [ 31 ] It is clearly in the interests of justice to avoid having to call the same evidence at two different trials at two different times. This is what the Crown submits they will have to do if there is a severance order. As noted, there is overlap here in that two of the counts relate to the same allegations on the same day at the same place. [ 32 ] This factor weighs against severance.

The Use of Similar Fact Evidence at Trial [ 33 ] The similar fact evidence rule permits the introduction of prior conduct by an accused in certain exceptional circumstances, despite the general prohibition in law of the introduction of bad character evidence. In such exceptional circumstances, such evidence of prior conduct of the accused may be admitted if it the probative value outweighs any prejudicial effect: R v Handy , 2002 SCC 56 ( Handy) . [ 34 ] The Crown in this case says that it will make a similar fact application with respect the three outstanding counts before the Court.

It argues that the test for similar facts across the three counts is met, namely that the counts before the Court are so similar that “it would be an affront to common sense to suggest the similarities were due to coincidence”: see Handy paras 41,47 .

[35] For similar fact evidence to be admitted there must be a high degree of similarity between the acts that render the likelihood ofcoincidence improbable. [36] The Crown also states that it will make an application for the admission of what it calls extrinsic similar fact evidence, whicharises out of the accused pleading guilty to two charges of sexual interference, contrary to s151 on January 22, 2020.

The Crown states itwill seek to introduce an Agreed Statement of Facts, which was filed with this Court in those proceedings. [37] As I understand it, the Crown seeks to submit similar fact evidence primarily for the inference that the accused had a modusoperandi involving using his position in a domestic situation to abuse young female complainants. [38] What is the test to applied by a judge at a severance hearing where there may be similar fact evidence?

This has been dealtwith at the Supreme Court of Canada level, where that Court adopted the dissent of Justice Finch in the case of R v Blacklaws, 2012BCCA 217 , [2012] BCJ No. 980 where he said: 42 However, the trial judge was not required to actually apply the test for admitting similar fact evidence during his deliberations on theseverance application: he only had to assess whether it could "possibly" be met in the future.

This is a considerably lower threshold, and Ido not consider that the trial judge made an error in finding that it was met in the circumstances of this case. 43 It has been suggested that it would be "pure speculation" for a trial judge to try to predict the result of a similar fact application at theoutset of trial.

With respect, a trial judge does not need to go so far as to predict the result of such an application at the time of theseverance application: he or she need only assess whether it has some possibility of success, based on the submissions that the partieshave already made. [39] Applying this test, this Court must ask itself if there is a possibility of success for the Crown’s similar fact applications.

In itsbrief, the Crown submits that in every case the allegations were that the accused took advantage of his position as a family member, orquasi-family member, and exploited young female victims while they were sleeping or recently awakened, by touching them sexually. [40] Based on the submissions, I find that there is some possibility of success at the trial for the similar fact applications. [41] In the Last case, the Court stated as follows: 33 In many cases a ruling allowing similar fact evidence will favour a joint trial since the evidence on all incidents would have to beintroduced in any event.

However, in view of the different burden in a similar fact evidence application, the issue has to be consideredcarefully in the context of a severance motion. [42] It is important to note that in the Last case similar fact evidence did not come into play, in that the Crown decided not toproceed with that application at trial. [43] In my view there is some possibility of success that the similar fact evidence, including the extrinsic evidence, would beadmitted, based on the submissions I have heard, and carefully considered. [44] This factor weighs strongly against severance.

The Length of the Trial Having Regard to the Evidence to beCalled [45] It was submitted at the hearing that this matter had previously been set for a three-day hearing, but counsel adjourned the trialso this application could be made. Based on the Crown’s submissions that they will still call all their witnesses if there is a severance, itappears that the length of each severed trial would not be substantially shorter than a joint trial. The end result of severance would be arequirement for almost twice as much trial time. [46] This factor weighs against severance.

The Potential Prejudice to the Accused with Respect to theRight to be Tried within a Reasonable Time [47] The accused has the right to be tried within a reasonable time. If these trials are severed, then two trials will be required. It ispossible that for the reason of avoiding inconsistent verdicts, where similar fact evidence may be called, it may be prudent to await adecision in the first trial before a decision is made on the second trial. This will cause delay in getting these matters to trial and aconclusion. [48] This factor weighs against severance.

Requiring the Child Complainants to Testify Twice [49] If there is a severance granted, the Crown states that the two young girls will have to testify at both trials. It is not disputedthat having to testify in court on sexual abuse matters is very stressful, and especially for young children. The Supreme Court of Canadarecognized this in the case of R v L. (DO), (SCC), [1993] 4 SCR 419:

...Children have suffered and continue to suffer immense hardship from the court process.... ...It has also been observed that court proceedings often have severe and dire consequences on a child's ability to get on with her or his daily life... [ 50 ] In the Alberta case of R v Ticknovich,, 2003 ABQB 597 the Court stated as follows: 44 Amongst other factors which might be raised as against an order for severance of Counts, the Crown may, as here, invoke practical considerations, notably the effect on witnesses.

As to effect on witnesses, the law seems to recognize a distinction between complainants in sexual assault cases on the one hand, and other witnesses (police detectives etc.), on the other, when considering a multiplicity of trials [ 51 ] Having these young girls, age nine and ten, come to court to testify about these allegations of sexual touching will be very difficult for them. Requiring that they do so twice would indeed be an immense hardship, possibly with dire consequences. [ 52 ] This factor weighs strongly against severance.

Analysis of All the Factors [ 53 ] In the Alberta case of R v White , 2015 ABQB 613 ( White ) Justice Graesser in considering a severance application stated as follows: 47 If this were simply a numbers exercise, there are more factors favouring joint trial than there are favouring severance. That being said, the cases are clear that it is not a simple case of adding up the pros and cons.

Issues relating to the fair trial of the accused, and recognition of his or her Charter rights to a fair trial, no self-incrimination and making full answer and defence will generally be more important than procedural economies and efficiencies. Government resources are not unlimited, but an accused's right to a fair trial should not unreasonably yield to budgetary considerations. [ 54 ] In the White case, the accused made a strong case that he wanted to testify on some counts, but not others.

Justice Graesser said that factor had the strongest influence in his decision to sever, and the other factors favouring a joint trial did not come close. [ 55 ] In the case at bar, it is acknowledged that a joint trial would involve some risk of moral and reasoning prejudice to the accused, but in my view since the Crown states it would call all the witnesses in both trials anyway, in a judge alone trial, the prejudice to the accused is marginal.

The accused did not submit he wants to testify on some counts and not the other, so the Defence says this factor is neutral. [ 56 ] Most of the other factors weigh against severance. The three factors that I find weigh the heaviest against severance are: 1. There is a strong factual and legal nexus between all the counts. The two complainants are sisters, and they lived in the same house. In fact, there is overlap, with two counts of allegations on December 16, 2021, for the same charge at the same place, and the Defence seeks to sever those two counts.

With respect to the legal nexus, it appears to be the same on all counts, namely credibility. 2. There will be an application by the Crown for similar fact evidence, and I have found that there is a possibility of success, which usually requires a joint trial. 3. Two separate trials will be very difficult for the two young complainants, currently aged nine and ten, especially since this is a sexual interference trial. Conclusion [ 57 ] The onus is on the accused, pursuant to s591(3)(

a) of the Criminal Code to satisfy this Court on the balance of probabilities that the interests of justice require an order for severance. After careful consideration of all the above factors, I find that the accused has not been met the onus on him. The application for severance is dismissed. Heard on the 12 th day of May, 2023. Dated at the City of Lethbridge, Alberta this 16 th day of May, 2023.

P.G. Pharo A Justice of the Alberta Court of Justice Appearances: M. Fox J. Spearchief-Morris for the Crown J. Zahara for the Accused