R v Laporte (PLR), 2016 MBCA 36

Citation: R v Laporte (PLR), 2016 MBCA 36 Date: 20160413 Docket: AR13-30-08044 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) ) L. C. Robinson and K. D. Minuk Respondent ) for the Appellant ) ) ) N. M. Cutler , D. L. Carlson and - and - ) D. A.

Mann ) for the Respondent ) ) Appeal heard: ) October 9, 2015 PETER LLOYD ROGER LAPORTE ) ) Judgment delivered: (Accused) Appellant ) April 13, 2016 On appeal from: 2012 MBQB 230 , 283 ManR (2d) 39 ; 2013 MBQB 227 , 297 ManR (2d) 226 HAMILTON and PFUETZNER JJA I. Introduction [ 1 ] A trial judge, sitting without a jury, convicted the accused of numerous offences arising from four separate attacks on four different complainants.

The first occurred in December 2007, and the other three occurred on one day in November 2008. [ 2 ] The accused was convicted of sexual assault causing bodily harm and unlawful confinement for the December 2007 attack on the first complainant (Complainant 1). With respect to the November 2008 attacks, he was convicted of sexual assault causing bodily harm and unlawful confinement of Complainant 2, assault with a weapon and forcibly seizing Complainant 3 and sexual assault causing bodily harm of Complainant 4. [ 3 ] The accused appeals these convictions.

His grounds of appeal pertain to the trial judge’s rulings denying the accused’s motion to sever the counts pertaining to Complainant 1; allowing the Crown to introduce similar fact evidence; admitting hearsay evidence from Complainant 1; and refusing to exclude penile swab DNA evidence under s 24(2) of the Canadian Charter of Rights and Freedoms (the Charter ) arising from the December 2007 attack. [ 4 ] The trial judge designated the accused a dangerous offender and sentenced him to a period of indeterminate incarceration.

The accused seeks leave to appeal and, if granted, appeals the designation and sentence. [ 5 ] For the reasons that follow, we would dismiss the conviction appeal, grant leave to appeal the sentence and dismiss

the sentence appeal. [ 6 ] The accused has not demonstrated any error in principle with respect to the trial judge’s severance, hearsay and similar fact rulings or with respect to his decision on sentence. These decisions are therefore entitled to deference. With respect to the DNA evidence, while our reasons are different from those of the trial judge, he did not err in failing to exclude the evidence. II. Background [ 7 ] All four complainants were strangers to the accused. Security videos showed the accused with each complainant at some point of time during their interaction.

The trial judge described what occurred during the attacks at some length in his written reasons for conviction. We rely on his findings of fact for our

summary of the four incidents and what occurred later. December 2007 [ 8 ] The accused moved into his mother’s apartment on the 17th floor of 360 Cumberland Avenue (360 Cumberland) in Winnipeg in September 2007. [ 9 ] On December 15, 2007, at about 4:00 a.m., Complainant 1, a 38-year-old woman, was standing near the entrance to 360 Cumberland waiting for a taxi. The accused approached her, said he had a knife and told her to follow him into the building. Fearful, Complainant 1 complied and followed the accused into the stairwell on the main floor. The accused demanded that she take off her pants and bend over.

When she did not comply, the accused hit and punched her, fracturing her nose and other facial bones. The accused forced Complainant 1 to have intercourse with him and to perform fellatio on him. Complainant 1 lost consciousness at some point. The accused led Complainant 1 up the stairs to the sixth floor laundry room, ordered her to lie down and not leave. Eventually she left, once the accused fell asleep. [ 10 ] Complainant 1 left behind her coat, prescription glasses, identification and one shoe.

She went to an adjoining convenience store and called 911. [ 11 ] The accused was arrested leaving the laundry room carrying Complainant 1’s coat with her identification in the pocket. The accused was taken to the Public Safety Building and detained. The police took penile swabs without the consent of the accused, but with no physical objection. They had permitted the accused to call his lawyer prior to the procedure.

When the accused was released on November 10, 2008, he moved back into his mother’s apartment at 360 Cumberland. [ 12 ] Complainant 1 gave a videotaped statement to the police and testified at the preliminary inquiry. Due to her illness, the cross-examination was adjourned. Before the preliminary inquiry could be reconvened, however, Complainant 1 was in an automobile accident, which rendered her unable to speak. The charges, which had been stayed, were reinstated after the accused’s arrest in 2008.

November 2008 [ 13 ] On November 23, 2008, just before 5:00 p.m., the accused approached an eight-year-old boy (Complainant 2), who was entering his apartment building at 500 Balmoral Street after having emptied a blue box into the outdoor recycling bin. The accused followed the boy into the building, grabbed the boy by the sweater, pulled him into the stairwell and closed the door behind them. The accused hit the boy in the face and pulled his hair. The accused pulled down the boy’s pants and underwear and told the boy to bend over.

He told the boy to hold his buttocks apart and he penetrated his anus with his penis. The accused told the boy to turn around and to suck his penis. The attack was interrupted by a neighbour who opened the door to the stairwell. The boy escaped up the stairs, ran to a friend’s suite and 911 was called. The accused fled the scene. [ 14 ] After 7:00 p.m. the same day, the accused was in the lobby of 360 Cumberland and observed a woman (Complainant 3) and her two-year-old child enter the elevator. The accused followed them into the elevator, and they rode up to the 14th floor.

When the elevator stopped, the accused grabbed the woman and dragged her in the direction of the stairwell. The accused threatened her with a knife in his possession. A tenant from the 14th floor intervened and the woman and child got away. [ 15 ] After 9:00 p.m. the same day, a woman (Complainant 4) was walking down Furby Street when she was approached by the accused. He offered her a drink and a cigarette, and accompanied her to her friend’s house. There they consumed alcohol. Afterwards, he led her by the hand to 360 Cumberland. They went into the building and up to the 21st floor.

He led her into the stairwell and hit her in the face. He told her to bend over, pulled her pants down and forced intercourse on her. The building caretaker, who had been looking for the person who had attacked Complainant 3, entered the stairwell and heard the woman scream, “He’s raping me.” The caretaker threw the accused on the floor, banged his face into the floor and held him down until police arrived and arrested the accused. The police took the accused to the Public Safety Building, where penile swabs were taken without his consent, during which he struggled vehemently.

The officers did not permit the accused to call his lawyer. [ 16 ] During his arrest, the accused assaulted one of the police officers, and was charged with assaulting a peace officer. His conviction for that offence is not being appealed. III. Grounds of Appeal [ 17 ] The accused raises four grounds of appeal with respect to his convictions. The accused’s position is that the trial judge erred in: • failing to sever the 2007 counts from the 2008 counts; • failing to exclude, pursuant to s 24(2) of the Charter , the DNA results from the penile swabs taken from the accused after his 2007

arrest; • admitting hearsay evidence in connection with the 2007 attack, in particular, Complainant 1’s videotaped police statement,transcripts of her preliminary hearing evidence and two 911 calls; and • granting the Crown’s application to admit similar fact evidence with respect to the charges relating to Complainant 1 andComplainant 4. The first three grounds relate to his convictions for the 2007 attack on Complainant 1. The final ground relates to the convictions withrespect to Complainant 1 and Complainant 4. [18] The accused seeks a new trial on the charges relating to Complainant 1.

He also seeks a new trial on the chargesrelating to Complainant 4, if he is successful in arguing that the trial judge should not have admitted similar fact evidence with respect tothose charges. [19] If leave to appeal sentence is granted, the accused raises the following grounds of appeal: • that the trial judge erred in finding that the four attacks established a pattern of repetitive behaviour, or a pattern of persistentaggressive behaviour, as set out in subss 753(1)(a)(

i) and (ii) of the Criminal Code (the Code); • that the trial judge erred in law in classifying all four attacks as sexual in nature; • that the trial judge failed to assess the credibility of witnesses called in the sentencing hearing; • that the trial judge failed to consider the sentencing principles under s 718 of the Code; and • that the trial judge failed to evaluate why a long-term offender sentence would not adequately protect the public. [20] We will address the applicable standard of review when we address each ground of appeal. IV.

Charter Issue [21] We will deal with the ground of appeal concerning the penile swabs first as, in our view, this ground of appeal is themost difficult and deserves the most attention. [22] At the trial, the accused brought a motion for the exclusion of evidence under s 24(2) of the Charter. He asserted thatthe taking of the penile swabs by the Winnipeg Police Service (WPS), in search of DNA evidence from bodily samples from thecomplainants, breached his rights under s 8 of the Charter to be secure against unreasonable search and seizure.

As a result, he arguedthat the admission of this evidence would bring the administration of justice into disrepute. [23] The trial judge concluded that the taking of the penile swabs without warrants did not fall within the common lawpower of search incident to arrest, and that the Crown had not demonstrated exigent circumstances. Therefore, he found that the takingof the swabs breached the accused’s s 8 rights in both instances. He refused the accused a remedy under s 24(2) with respect to the 2007DNA evidence related to Complainant 1 and admitted the evidence. However, he excluded the 2008 DNA evidence.

See 2012 MBQB227. [24] The accused appeals the trial judge’s ruling not to exclude the 2007 DNA evidence. He acknowledges that the trialjudge considered the proper factors under the Grant test (R v Grant, 2009 SCC 32, [2009] 2 SCR 353), but says that they were notbalanced properly. He argues that the trial judge put too much emphasis on the third factor, being society’s interest in an adjudication ofthe case on the merits, and underemphasized the second factor, being the impact of the s 8 breach on his privacy interests. [25] The Crown’s response is twofold.

First, it argues that the trial judge was wrong to find a Charter breach because the2007 search was incident to arrest, and no warrant was required. Second, if there was a breach, the trial judge’s s 24(2) decision isentitled to deference. Trial Proceedings [26] At the trial, the Crown argued that warrants were not required for the WPS to collect the penile swabs from theaccused, as such searches were incident to his arrest.

The Crown relied primarily on the Supreme Court of Canada’s decision in R vGolden, 2001 SCC 83, [2001] 3 SCR 679, a case that dealt with strip searches incident to arrest. [27] The accused argued that the taking of the penile swabs breached his s 8 rights because they were both warrantlesssearches and nonconsensual. The accused relied primarily on the Supreme Court of Canada’s decision in R v Stillman, (SCC), [1997] 1 SCR 607, which dealt with the taking of an accused person’s own bodily samples for evidence. [28] The trial judge concluded that the Crown had to establish an emergency or exigent circumstances.

After consideringStillman and Golden, he concluded that there were three factors that were relevant for his analysis: 1) the degree of risk of loss of thebodily materials; 2) the availability of a search warrant; and 3) the right to counsel. He wrote (2012 MBQB 227 at para 19): From these cases, I draw the following conclusions. Stillman is authority for the proposition that the common law power to make aseizure incidental to arrest is not broad enough to permit seizure of bodily samples that are not in danger of disappearing and that police

need a warrant authorizing it. Golden does not qualify that finding. In fact, it affirms the finding. It is correct to say, as submitted by Crown counsel, that the seizure made in Stillman was made for the purpose of obtaining Stillman’s DNA, that is, it was evidence that was not in danger of disappearing, and in this case, the police were seeking to find the victim’s bodily fluids on [the accused]’s penis. However, the search in this case was highly intrusive and, as stated in Golden , it required a high degree of justification to allow such a search without first obtaining a warrant.

In the context of this case, I find that it is necessary for the police to establish that there was an emergency or exigent circumstances justifying the seizure . This involves an obligation on the part of the police to consider several matters before making such a seizure and to lead evidence on the voir dire touching on the admissibility of the swabs, that there were subjectively and objectively exigent circumstances justifying the seizure.

The matters requiring consideration in this case are the degree of risk of loss of the bodily materials, the availability of a procedure to obtain a search warrant and the right to counsel. [emphasis added] [ 29 ] The trial judge concluded that the Crown had not met its evidentiary burden regarding the risk of losing the evidence, stating that it is “not for this Court to speculate whether there was a serious risk of loss of materials before a warrant could be obtained.

The Crown bears the onus of proving that there was a serious and urgent risk” (at para 20). [ 30 ] Furthermore, he found that there was time to obtain a telewarrant. We note that, at the trial, counsel agreed that a warrant could be obtained under s 487(1) of the Code (the warrant

section to search “a building, receptacle or place”). While the trial judge expressed doubts about the availability of a warrant to authorize a penile swab, he accepted counsel’s agreement for the purposes of his decision. He was critical of the WPS for not considering the availability of telewarrants under s 487.1(1) of the Code . [ 31 ] As for the 2008 search, he found that there was a blatant denial of the accused’s right to counsel, which underscored the unreasonableness of the police actions in that instance.

He also found that the circumstances surrounding the taking of the 2008 penile swab were “shocking”, noting “the number of officers present in that small room . . . the use of the spit sock, and the amount of force used” (at para 25). He found the manner of conduct of that seizure to be unreasonable. [ 32 ] The circumstances surrounding the taking of the penile swab after the 2007 arrest were very different. The trial judge described them in detail, as follows ( 2012 MBQB 227 at para 3 ): [The accused] was taken into an interview room at 11:10 a.m. and the video camera was turned on.

He was charged, cautioned, advised of his right to counsel and was permitted to speak to his lawyer. . . . [The accused]’s clothing was seized at 11:49 a.m. and he was clothed in white-paper clothes. At 12:04 p.m., he was permitted to go to the washroom. The police witness who took the swabs entered the room at 12:50 p.m., charged and cautioned [the accused] for a variety of charges, described the circumstances, advised him of his right to counsel and to Legal Aid.

He then explained to [the accused] that they will be taking penile swabs as part of the investigation, that the WPS is treating his body as part of the crime scene and, incident to his arrest, they are looking for transfer of the victim’s DNA to his body, and he explained how they take the swabs. [The accused] asked to speak to his lawyer. The video camera was turned off at 1:04 p.m. and [the accused] was left alone with a telephone with a cord passing under the door from an outer office.

The witness dialed the lawyer’s telephone number and waited outside the room to permit [the accused] to speak to his lawyer in private. Afterwards, [the accused] asked the witness to talk to his lawyer and the witness did. The lawyer told him that she advised her client not to submit to the taking of the swabs. The witness told [the accused] and his lawyer that he intends to take the swabs without [the accused]’s consent. The video camera was turned on at 1:07 p.m. and then [the accused] was left alone.

At 1:09 p.m. while seated in the chair, [the accused] wet the fingers on his right hand and inserted his hand underneath his white-paper clothes and toward the lower part of his body, a series of acts that he repeated a few seconds later. One can also observe him looking around as if to see whether anyone was watching him. A minute or two later, the witness and two uniformed officers entered the room. Two swabs were taken at 1:11 p.m., one wet and one dry. The swabs were brushed against the shaft and head of [the accused]’s penis. The event was videotaped but the swabs were taken off camera.

Was There a Charter Breach? [ 33 ] The Crown suggests that if we agree with the trial judge’s s 24(2) decision, we need not address its breach argument. We disagree. The Crown has put at issue whether the trial judge erred in law when he found that the accused’s s 8 rights were breached during the search occasioned by the 2007 penile swab. Having raised the issue, as the Crown is entitled to do, we must address it. If we agree with the Crown, the s 24(2) issue becomes moot. If we disagree, the nature of the breach is an important factor in the s 24(2) analysis.

Standard of Review Re Question of Charter Breach [ 34 ] This is an accused’s appeal from conviction. As explained in R v Farrah (D) , 2011 MBCA 49 , 268 ManR (2d) 112 , different standards of review apply to a question arising from a trial judge’s ruling (at para 7):

a) When examining a judge’s decision on whether a Charter breach occurred, the appellate court will review the decision to ensure that the correct legal principles were stated and that there was no misdirection in their application. This raises questions of law and the standard of review is correctness.

b) The appellate court will then review the evidentiary foundation which forms the basis for the judge’s decision to see whether therewas an error. On this part of the review, the judge’s decision is entitled to more deference and, absent palpable and overriding error, thefacts as found by the judge should not be disturbed (see Grant at para. 129).

c) The appellate court will also examine the application of the legal principles to the facts of the case to see if the facts, as found by thejudge, satisfy the correct legal test. In the criminal law context, this is a question of law and the standard of review is correctness (see R.v. Shepherd (C.), 2009 SCC 35 , [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, at para.20). Can a Penile Swab be a Lawful Search Incident to Arrest? [35] The jurisprudence concerning the taking of penile swabs is developing. Reported decisions are limited and are notconsistent.

For example, several have expressly found a breach of s 8 (R v Saeed (AH), 2014 ABCA 238, 577 AR 143; R v Pun, 2012ONSC 5305 ; and R v BAP, 2013 SKQB 14, 456 SaskR 23), while three others found no breach of s 8 (R v Hodgson, [2008] OJNo 4748 (QL); R v Amey, 2013 ONSC 5108 ; and R v Harasemow, 2014 BCSC 2287 ). In three of the cases, theevidence was ruled admissible (Saeed; Hodgson; and Harasemow).

In three of the cases, the evidence was excluded (Pun; Amey; and R vAli, 2014 ONSC 6609 ). [36] The Supreme Court of Canada recently heard an appeal from the decision in Saeed, in which the majority of the AlbertaCourt of Appeal, applying Stillman, held that a penile swab is not a search that is incident to arrest, and that a warrant must be obtainedunless the evidence sought could significantly deteriorate or disappear, or in circumstances of “extreme exigency” (at para 62). Theevidence was admitted under s 24(2).

The breach in that case arose from the failure to obtain a telewarrant. [37] In the dissent in Saeed, McDonald JA concluded that the penile swab-taking was authorized under the common lawpower of search incident to arrest, “given the facts of this case i.e., a sexual assault that had occurred mere hours before and the need topreserve important evidence” (at para 29). [38] The Supreme Court of Canada’s decision in Saeed is on reserve.

Until we have the benefit of that decision, R v Fearon,2014 SCC 77, [2014] 3 SCR 621, provides the analytical approach for addressing the question of whether the taking of the 2007 penileswabs breached the accused’s s 8 rights. While Fearon concerned searches incident to arrest in the context of cell phones found onaccused persons, it provides a contextual analytical approach to address “the permissible scope of search incident to arrest” (at para 13). As stated by Cromwell J (for the majority), there is no “categorical limit” on searches incident to arrest (ibid).

He explained that theCourt’s task is to consider the competing interests at stake to determine the precise scope of the common law power in the specificcircumstances of the case (at paras 13-14): This question about the scope of the power to search incident to arrest cannot be answered in too categorical a fashion. As Lamer C.J.explained in Caslake [ (SCC), [1998] 1 SCR 51], the permissible scope of a search incident to arrest turns on severaldifferent aspects of the search including the nature of items seized, the place of search and the time of search in relation to the time ofarrest: paras. 15-16.

Each of these aspects may engage distinct considerations that cannot be addressed in very general terms. . . . Itfollows that the permissible scope of searches incident to arrest will be affected by the particular circumstances of the particular arrest.The courts will rarely be able to establish any categorical limit applicable to all arrests and all purposes incidental to them. There is no question that there is a common law police power to search incident to arrest. . . .

To determine the precise scope of thiscommon law power, the Court must weigh the competing interests involved, particularly whether the search “is reasonable in light of thepublic purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamentaldignity of individuals”: Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158, at pp. 181-82; Caslake, at para. 17. TheCourt’s task is “to delineate the scope of the common law power . . . in a way that is consistent with the Charter right to be protectedagainst unreasonable search and seizure”: R. v.

Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 87. [emphasis added] [39] Cromwell J approached the task of determining the scope of the common law power by (at para 15): [C]onsidering first whether the search falls within the existing general framework of the common law power to search incident to arrest. Having decided that it does, I go on to ask whether that framework must be modified so that the common law search power complieswith s. 8 of the Charter in light of the particular law enforcement and privacy interests at stake in this context. The Court followed thisanalytical approach in R. v.

Stillman, (SCC), [1997] 1 S.C.R. 607, and Golden, two important cases which consideredwhether searches incident to arrest were Charter compliant, and it serves equally well in this case.

[40] Later, he equated the task to (at para 44): [A]n assessment of the importance of the legitimate law enforcement objectives served by the search and of the nature and extent of theinfringement of the detainee’s reasonable expectation of privacy. [41] This analytical approach requires us to first consider whether the taking of penile swabs falls within the existing generalframework of the common law power of a search incident to arrest. [42] Searches incident to arrest are an established exception to the general rule that warrantless searches are prima facieunreasonable.

They have an important law enforcement function that includes the collection and preservation of evidence. L’Heureux-Dubé J explained this in Cloutier v Langlois, (SCC), [1990] 1 SCR 158 (at pp 180-83): [T]he police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundingsto guarantee the safety of the police and the accused, prevent the prisoner’s escape or provide evidence against him.

The common threadin this line of authority is the objective of guaranteeing safety and applying the law effectively. . . . [T]he process of arrest must ensure that evidence found on the accused and in his immediate surroundings is preserved. Theeffectiveness of the system depends in part on the ability of peace officers to collect evidence that can be used in establishing the guilt ofa suspect beyond a reasonable doubt.

The legitimacy of the justice system would be but a mere illusion if the person arrested wereallowed to destroy evidence in his possession at the time of the arrest. [43] In Golden, the Supreme Court of Canada held that strip searches fall within this general framework.

A strip search is “theremoval or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namelygenitals, buttocks, breasts (in the case of a female), or undergarments” (at para 47). [44] The taking of penile swabs in a sexual assault investigation can capture important evidence arising from bodily samplesfrom a complainant found on the accused person. This is to be distinguished from collecting bodily samples containing personalinformation relating to an accused person, which requires a warrant. See Stillman.

Given that distinction, we conclude that the taking ofpenile swabs falls within the existing general framework of the common law power of a search incident to arrest. [45] The more difficult consideration is whether the general framework must be modified for the taking of penile swabs sothat the common law search power incident to arrest complies with s 8 of the Charter.

This requires the balancing of the particular lawenforcement and privacy interests that are at stake. [46] In Cloutier, L’Heureux-Dubé J explained that a search incident to arrest “must not be conducted in an abusive fashionand in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the othercircumstances of the situation” (at p 186).

Furthermore, if a search does not meet this standard, it could be characterized as unreasonableand unjustified at common law. [47] In R v Caslake, (SCC), [1998] 1 SCR 51, Lamer CJ emphasized that the authority to search incidentto arrest “arises out of a need for the law enforcement authorities to gain control of things or information which outweighs theindividual’s interest in privacy” and that it must be “related to the purpose of the arrest” (at para 17). [48] Most recently in Fearon, Cromwell J explained that “the need for the police to be able to promptly pursue theirinvestigation upon making a lawful arrest is an important consideration underlying the power to search incident to arrest” (at para 17). [49] The collection of a complainant’s bodily fluids from a penile swab of an accused person in a sexual assault investigationcan provide important evidence.

There is sufficient commentary in the case law and academic articles to say that the police authoritiesrightly have a legitimate concern that, if not collected in a timely manner, the type of evidence available from penile swabs willdisappear. See Hodgson at para 14; Saeed at paras 28-29, 33, 36, 61-62; Amey at para 62; and Harasemow at para 34. Also see John W.Burchill, “Invasive searches: penile washings, bodily examinations, and other investigative considerations for sex-related offences”(2011) 12:1 Police Practice & Research: An International Journal (24 June 2010).

Therefore, the law-enforcement interests of penileswab searches are significant. [50] An accused person’s privacy interests are also significant. The taking of penile swabs constitutes a significant invasion ofprivacy, and the issue of bodily integrity discussed in the jurisprudence calls for a high level of justification for such a search. [51] In the course of his s 24(2) analysis in Stillman, Cory J commented on the importance of a person’s bodily integrity (atpara 87):

Canadians think of their bodies as the outward manifestation of themselves. It is considered to be uniquely important and uniquelytheirs. Any invasion of the body is an invasion of the particular person. Indeed, it is the ultimate invasion of personal dignity andprivacy. . . .

The concept of fairness requires that searches carried out in the course of police investigations recognize the importance ofthe body. [52] Supreme Court jurisprudence has addressed different levels of invasion of privacy associated with different types ofpersonal searches. [53] R v Simmons, (SCC), [1988] 2 SCR 495; and R v Monney, (SCC), [1999] 1 SCR 652,are two border-crossing cases that provide helpful commentary about different levels of invasion of privacy, even though border-crossingcases involve lower expectations of privacy, given the unique context of “National self-protection” (Golden at para 73).

In Simmons, astrip search case, Dickson CJ (for the majority) identified three categories of searches: 1) questioning, baggage search and perhaps a pator frisk of outer clothing; 2) strip or skin search in a private room; and 3) body cavity search.

He described the first as routine and notraising constitutional issues and the third as “highly intrusive” (at para 27) and explained that “the greater the intrusion, the greater mustbe the justification and the greater the degree of constitutional protection” (at para 28). [54] In Monney, the Court held that a bedpan vigil search fell into the second category of the analytical frameworkdeveloped by Dickson CJ in Simmons.

Iacobucci J explained that the difference between the second category and the examples listed inthe third category in Simmons was that the latter demand a higher level of constitutional justification and (at para 46): [I]nvolve, to a greater or lesser degree, the intentional application of force. Search techniques such as the insertion of a probe into a bodycavity or the administration of an emetic could all be characterized in the absence of lawful authority as an assault.

Consequently, thepotential degree of state interference with an individual’s bodily integrity for searches in the third category requires a high threshold ofconstitutional justification. [55] In Golden, the majority distinguished strip searches from “less intrusive ‘frisk’ or ‘pat down’ searches, which do notinvolve the removal of clothing” from “more intrusive body cavity searches, which involve a physical inspection of the detainee’s genitalor anal regions” (at para 47).

They acknowledged the degrading and humiliating nature of strip searches (at para 83): While the respondent and the interveners for the Crown sought to downplay the intrusiveness of strip searches, in our view it isunquestionable that they represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience forindividuals subject to them.

Clearly, the negative effects of a strip search can be minimized by the way in which they are carried out, buteven the most sensitively conducted strip search is highly intrusive. [56] Importantly, the majority in Golden explained that the more intrusive body cavity searches call for a higher degree ofjustification than a strip search, and greater constraints as to how they may be reasonably performed (at para 87): More intrusive searches of the person such as this involve a higher degree of infringement of personal dignity and privacy as well asadditional medical concerns and, accordingly, a higher degree of justification will be required before such a search can be carried out.

Inaddition, more intrusive searches will be subject to greater constraints as to the manner in which they may be reasonably performed. [57] The taking of a penile swab entails an application of force to the accused person’s genital area unless the accusedperson consents to the search. While not as intrusive as a body cavity procedure, a penile swab without consent is not a passiveprocedure like a “bedpan vigil” (at para 73). In our view, its interference with bodily integrity is more akin to a body cavity search,because of the application of force and the area of the body being searched.

Thus, the level of justification for such a search is high. [58] The majority in Golden had to address the level of justification required for strip searches incident to arrest.

Theyconcluded that, as a result of the serious infringement of privacy and personal dignity occasioned by a strip search, such searches are onlyauthorized at common law when four requirements are met: 1) the search must be “incident to a lawful arrest for the purpose ofdiscovering weapons in the detainee’s possession or evidence related to the reason for the arrest”; 2) the police must have “reasonableand probable grounds justifying the arrest”; 3) the police must have “reasonable and probable grounds justifying the strip search”; and 4)“the strip search [must] be conducted in a manner that does not infringe s. 8 of the Charter” (at para 99). [59] With respect to the fourth requirement, the majority set out a series of questions to provide a framework for the police indeciding how best to conduct a strip search incident to arrest in compliance with the Charter.

The questions are (at para 101): 1. Can the strip search be conducted at the police station and, if not, why not?

2. Will the strip search be conducted in a manner that ensures the health and safety of all involved? 3. Will the strip search be authorized by a police officer acting in a supervisory capacity? 4. Has it been ensured that the police officer(

s) carrying out the strip search are of the same gender as the individual being searched? 5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances? 6. What is the minimum of force necessary to conduct the strip search? 7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search? 8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time? 9.

Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact? 10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional? 11.

Will a proper record be kept of the reasons for and the manner in which the strip search was conducted? [ 60 ] In our view, all of these questions are pertinent to the taking of a penile swab incident to arrest, except for questions 9 and 10 because of the nature of such a search. [ 61 ] Therefore, applying the analysis in Golden , and modified as required by Fearon , we conclude that the following are required for a penile swab to be a lawful search incident to arrest: 1) The police have reasonable and probable grounds justifying the arrest; 2) The police have reasonable and probable grounds justifying the penile swab search incident to arrest.

In other words, the police have reasonable and probable grounds to believe that the penile swab will provide relevant evidence related to the arrest; and 3) The police have conducted the penile swab in a manner that complies with s 8 of the Charter . In this regard, the following questions provide a framework not only for the police, but also a court called upon to address the Charter compliance of the search. 1. Was the penile swab conducted at the police station and if not, why not? 2. Was the penile swab conducted in a manner that ensured the health and safety of all involved? 3.

Was the penile swab authorized by a police officer acting in a supervisory capacity? 4. Were the police officers carrying out the penile swab of the same gender as the person being searched, and if not, why not? 5. Was the number of police officers involved no more than necessary in the circumstances? 6. Was the minimum force that was necessary used to conduct the search? 7. Was the penile swab carried out in a private area such that no one other than the individuals engaged in the search can observe the search? 8.

Was the penile swab conducted as quickly as possible and in a way that ensures that clothing removal or exposure is restricted to that necessary to complete the swab? 9. Was the accused person given the opportunity to swab himself and if not, why not?

10. Was the procedure recorded in a respectful manner? For example, was the camera turned away during the swab procedure ordirected at the accused person’s back to avoid genital exposure? and 11.

Was a proper record kept of the reasons for and the manner in which the penile swab was conducted? [62] The foregoing requirements provide the appropriate balance between the significant law enforcement interests to pursuelegitimate police investigations of sexual assaults and an accused person’s significant right to privacy. [63] We wish to comment briefly on several points. [64] Strip searches generally should be conducted at a police station unless there are exigent circumstances. See Golden atpara 102.

Given that, and the nature of a penile swab search, we expect that it will be the rare circumstance that a penile swab will nottake place in a police station. As in Golden, exigent circumstances would be required. [65] We doubt that a search warrant for penile swabs is available under the current provisions of the Code. However, theavailability of such a warrant was not at issue in this appeal. As noted previously, the trial judge’s reasons were premised on theagreement between counsel that a warrant was available.

We agree with the trial judge that there is a lack of clarity regarding whetherthe current warrant provisions in the Code would encompass penile swabs. See R v TGH, 2014 ONCA 460, 326 OAC 92; R c H-G, 2005QCCA 1160 ; and SF v Canada (Attorney General) et al (1997), 47 OTC 321, rev’d (2000), (ON CA), 128OAC 329.

Certainly, the obtaining of a warrant would simplify matters for all concerned. [66] Golden provides important guidance with respect to the application of force during a search incident to arrest (at para116): We particularly disagree with the suggestion that an arrested person’s non-cooperation and resistance necessarily entitles police to engagein behaviour that disregards or compromises his or her physical and psychological integrity and safety.

If the general approacharticulated in this case is not followed, such that the search is unreasonable, there is no requirement that anyone cooperate with theviolation of his or her Charter rights. Any application of force or violence must be both necessary and proportional in the specificcircumstances. Did the Trial Judge Err in Finding a

Section 8 Breach? [67] Because the trial judge did not have the benefit of Fearon to guide his analysis, his analytical approach was in error. Nonetheless, his findings of fact with respect to the taking of the 2007 penile swab are entitled to deference. [68] When we apply what we call the Fearon/Golden framework for the required analysis, we conclude that the trial judgeerred in law when he found that the taking of the 2007 penile swab breached the accused’s s 8 Charter rights.

In our view, the penileswab search met the criteria set by the Supreme Court of Canada in R v Collins, (SCC), [1987] 1 SCR 265, the searchwas lawful as it was done pursuant to the common law power to search incident to arrest; this common law power is reasonable; and thesearch was conducted in a reasonable manner. [69] The facts demonstrate that the police had subjective and objective reasonable and probable grounds to arrest the accusedand that in the circumstances of the case, they had subjective and objective reasonable grounds to believe that evidence fromComplainant 1 could be found on the accused’s penis. [70] The trial judge’s findings as to the circumstances surrounding the taking of the penile swab demonstrate that the WPSofficers were reasonable and respectful.

The police provided the accused with two opportunities to speak to counsel. Two penile swabswere taken in an interview room at the police station within 12 hours of the attack. The search was videotaped, but the swabs were takenoff camera. [71] The trial judge found that the Crown had not met its evidentiary burden to prove that there was a serious risk of loss ofmaterials. However, that finding was made in the context of his conclusion that the Crown had to demonstrate exigent circumstances inthe absence of a warrant. A search incident to arrest does not require exigent circumstances to be lawful.

The trial judge’s followingcomments show that the WPS were concerned about risk of loss of the evidence (2012 MBQB 227 at para 20): The evidence establishes that the WPS considers it important to take penile swabs within 24 hours of a sexual attack out of concern thatthe victim’s bodily materials may deteriorate after 24 hours.

One expert witness expressed the view that bodily materials deteriorateafter 12 hours. [72] When we consider all the facts as found by the trial judge, in the context of the questions outlined at para 61 herein, weconclude that the taking of the 2007 penile swab was in compliance with s 8 of the Charter.

The high degree of justification required forthe penile swab search existed in the circumstances. [73] Earlier we noted that the WPS permitted the accused to contact counsel twice, once after he was charged and cautioned,and the second time after the penile swab procedure was explained to him and he asked to call counsel. In this case, these opportunities

underscored the reasonable approach taken by the police officers as s 10(

b) of the Charter was not at issue with respect to the 2007penile swab. We make no comment about the application of s 10(

b) to the taking of penile swabs. Failure to Exclude under Section 24(2) of the Charter [74] If we are wrong in concluding that the trial judge erred in finding a breach, we are of the view that the trial judge’sruling under s 24(2) not to exclude the evidence would be entitled to deference.

He concluded that the police conduct was consistentwith established police practice that had not been challenged before this trial and there was “no suggestion of bad faith” (at para 29); thebreach was serious, given “the demeaning nature of the search and the significant invasion of privacy” (at para 30); the impact of thepolice conduct on the accused’s Charter rights was more significant in the 2008 seizure “because of the physical nature of the search andthe repeated denial of [the accused’s] right to counsel”; and that “the importance of that evidence with respect to the 2007 charge is moresignificant because the Complainant [1] is unable to testify at the trial [and] . . . there is other evidence to support the [2008] charges” (atpara 30).

He concluded that the admission of the 2007 seizure would not bring the administration of justice into disrepute. [75] As stated by the Supreme Court of Canada in R v Mian, 2014 SCC 54, [2014] 2 SCR 689 (at para 77): It is well established that the determinations of trial judges as to what would bring the administration of justice into disrepute havingregard to all of the circumstances will be reviewed deferentially: “Where a trial judge has considered the proper factors and has notmade any unreasonable finding, his or her determination is owed considerable deference on appellate review” (R. v.

Côté, 2011 SCC 46,[2011] 3 S.C.R. 215, at para. 44, per Cromwell J.) [76] As acknowledged by the accused, the trial judge considered the proper factors under Grant. His findings of fact werereasonable. His conclusion that a decision not to exclude the 2007 penile swab evidence would not bring the administration of justiceinto disrepute is entitled to deference. [77] To conclude, we would dismiss the accused’s ground of appeal with respect to the trial judge’s decision not to excludethe DNA evidence arising from the taking of the 2007 penile swabs. V.

Hearsay [78] As explained, Complainant 1 could not testify at the trial relating to the 2007 counts. The Crown sought admission ofComplainant 1’s police statement, a transcript of her preliminary hearing evidence and two 911 calls (collectively, the hearsaystatements) under the principled exception to the rule against the admission of hearsay. See R v Khelawon, 2006 SCC 57, [2006] 2 SCR787. [79] At the admissibility voir dire, counsel for the accused accepted that necessity of the hearsay statements had beenestablished.

Accordingly, reliability was the sole issue on the voir dire. [80] The trial judge determined that the hearsay statements met the threshold requirement of reliability because he was in aposition to assess Complainant 1’s credibility in light of the nature of the evidence itself and the other evidence tendered by the Crown. The trial judge considered Khelawon and admitted the hearsay statements pursuant to the principled exception on the basis that theprobative value of the evidence outweighed the risk of moral and reasoning prejudice. See 2012 MBQB 228.

Standard of Review and Positions of the Parties [81] Absent an error in principle, the trial judge’s determination of threshold reliability is entitled to deference. See R vHead (JB), 2014 MBCA 59, 306 ManR (2d) 186, in which Mainella JA wrote (at para 24): Appellate deference is owed to a determination as to the admissibility of hearsay evidence absent an error in principle or unless thedecision cannot be reasonably supported by the evidence (R. v. Couture (D.R.), 2007 SCC 28 , [2007] 2 S.C.R. 517 . . . 2007SCC 28, at para. 81; and R. v.

Blackman (L.), 2008 SCC 37 , [2008] 2 S.C.R. 298 . . . 2008 SCC 37, at para. 52). [82] The accused argues that the hearsay statements should not have been admitted as their highly prejudicial natureoutweighed their probative value. In addition, he argues that the trial judge, in admitting the hearsay statements en masse, failed toconsider whether each of the hearsay statements individually qualified for admission.

Finally, he says that the admission of all thehearsay statements amounted to the admission of prior consistent statements, which is prohibited. [83] The Crown asserts that the trial judge considered the challenges made to the reliability of the hearsay statements by theaccused and provided cogent reasons why he concluded that he was in a position to assess Complainant 1’s credibility, and why theevidence should be admitted under the principled exception. The Crown argues that deference should be given to the trial judge’sdecision to admit all of the hearsay statements together.

Furthermore, it asserts that a review of the record and the manner in which thetrial proceeded shows that the trial judge was invited to do just that, and that the issue of whether any of the evidence should bedisqualified as a prior consistent statement was never raised at trial. Analysis [84] We deal first with the accused’s argument that the trial judge allowed the introduction of the hearsay statements withoutconsidering whether to do so would offend the common law principle against admission of prior consistent statements. In our view, the

fact that Complainant 1 was not a witness at the trial is a complete answer to this argument. [85] By definition, a statement cannot be a prior consistent statement unless the maker of the statement is a witness at thetrial. See David M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get it Right” (2013) 17 Can Crim L Rev181; R v RTK, 2014 ABCA 167 at para 25, 575 AR 51; and R v DB, 2013 ONCA 578 at para 30, 310 OAC 294.

See also R v Sylvain(W), 2014 ABCA 153, 575 AR 59, in which Slatter JA wrote (at para 76): Often, when 911 calls or other excited utterances are admitted, it is because necessity has been made out by the unavailability of thecaller. If the caller does not testify, then of course the 911 call does not take on the character of a prior consistent statement.

Where, ashere, the maker of the 911 call did testify, the prior consistent statement exclusion is engaged. [86] Since Complainant 1 did not testify, the hearsay statements cannot be “prior” consistent statements for the purposes ofthe exclusionary rule. [87] Furthermore, a review of the submissions at the voir dire shows that defence counsel made detailed comparisons ofComplainant 1’s three versions of events to illustrate what defence counsel argued to be significant inconsistencies between thoseversions.

Defence counsel relied on the inconsistencies in an attempt to impugn the credibility of Complainant 1 and the reliability of theevidence. [88] The admission of the hearsay statements did not engage the rule against prior consistent statements. [89] The accused also argues that the hearsay statements should not have been admitted pursuant to the principled exceptionto the hearsay rule. [90] Necessity having been conceded, the trial judge considered whether the evidence met the threshold of reliability underthe principled approach to admitting hearsay evidence (see Khelawon).

For the reasons that follow, we are of the view that it was opento the trial judge to conclude that the evidence met the requirement of threshold reliability. [91] As explained by David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed (Toronto: Irwin Law, 2015) at 134,“[A] trial judge, in determining threshold reliability and the admissibility of statements, is to use a functional approach.

All relevantfactors going to the reliability or unreliability of the statement can be looked to—including corroborating or conflicting evidence.” Thefollowing excerpt from the trial judge’s reasons demonstrates that he understood this (2012 MBQB 228 at para 8): In the main, at this stage one can discern an internal consistency in the Complainant’s evidence, which is supported by considerable realor physical evidence. [92] Complainant 1’s police statement was videotaped and made at a police station, circumstances that have been found toindicate the statement’s truth and accuracy.

See R v Nicholas (ES) (2004), (ON CA), 184 OAC 139 at para 91. [93] Preliminary inquiry testimony will generally meet the threshold test of reliability as there are sufficient guarantees oftrustworthiness. See R v Mullings (D), 2014 ONCA 895 at para 29, 327 OAC 256, quoting R v Hawkins, (SCC),[1996] 3 SCR 1043 at para 76; leave to appeal dismissed, [2015] SCCA No 253 (QL). [94] Although the accused did not have the opportunity of a full cross-examination of Complainant 1 at the preliminaryinquiry, under the principled approach, this will go to weight of the evidence, not admissibility.

See R v Smith, (SCC),[1992] 2 SCR 915 at p 935. [95] There was other evidence that corroborated the contents of the police statement, the 911 call and the preliminaryinquiry evidence. This included the fact that Complainant 1’s facial injuries were evident in her videotaped police statement, but werenot visible on Complainant 1’s initial encounter with the accused captured on the building’s security video, and that her blood andpersonal items were left in the laundry room where the accused was arrested holding her coat.

See R v Thomas (RJ), 2009 MBCA 85 atpara 47, 245 ManR (2d) 155; R v Woodard (J), 2009 MBCA 42 at para 53, 240 ManR (2d) 24; R v CES, 2009 MBCA 61 at para 30, 240ManR (2d) 107; and R v MNP, 2014 MBCA 2 at para 13, 303 ManR (2d) 67. [96] The accused also asserts that the trial judge erred by failing to consider whether the hearsay statements were admissibleindividually. As previously noted, each hearsay statement met the requirement of threshold reliability under the principled approach. [97] There is some authority for the position that individual pieces of hearsay should each be the subject of a separateruling.

For example, see R v GND (1993), (ON CA), 62 OAC 122, in which Weiler JA wrote (at para 53): I now propose to consider the various statements in issue. A ruling on the admissibility of each proposed statement should have beenmade by Fedak, J. This does not mean, however, that on the voir dire as to the admissibility of the series of statements, consideration ofeach statement by Fedak, J., should have taken place in isolation.

On the contrary, in considering whether a particular statement met thecriteria of necessity and reliability, he was right to have regard to all of the surrounding circumstances, including other statements at issueand related to the initial one. All of the statements made by L.D. on July 30 are part of a reporting sequence closely related in time.

[98] While it may have been preferable for the trial judge to have considered the hearsay statements individually, we are ofthe view he committed no reversible error in the manner in which he proceeded, for two reasons: 1) as mentioned in GND, admissibilityshould be considered in the context of the other evidence tendered in the trial; and 2) the trial judge’s ruling must be viewed in thecontext of the trial and how it unfolded.

See R v Rockey, (SCC), [1996] 3 SCR 829, in which McLachlin J (as she thenwas) wrote (at p 847): To appreciate the reason for the admission of the additional statements and their significance it is necessary to consider their place in thecontext of the trial and how it unfolded. It behoves appellate courts to remind themselves that a trial is a dynamic process. Particularevents and rulings are best judged, not in isolation, but in connection to the events that precede and follow them.

The reception of theadditional statements in this case provides a classic illustration of the need to consider the dynamics of the trial. [99] In this case, defence counsel did not object to the manner in which the admissibility voir dire proceeded. While thefailure to object is not determinative of the issue, it does serve “as a yardstick against which to measure the contrary position nowadvanced for the first time on appeal” (R v Phillips (

C) et al (2001), (ON CA), 139 OAC 282 at para 41). See also Rv SGT, 2010 SCC 20 at paras 34-37, [2010] 1 SCR 688. [100] To summarize, it was open to the trial judge to accept the hearsay statements made by Complainant 1 for admissionunder the principled approach on the basis that they met the threshold of reliability. The decision of the trial judge in this regard isentitled to deference. VI. Severance of the 2007 Counts [101] The accused sought to have the counts relating to Complainant 1 (the 2007 counts) severed from the other counts. [102] Discretion is given to a trial judge to order severance under s 591(3)(

a) of the Code, which states: Severance of accused and counts 591(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. [103] The trial judge referred to R v Last, 2009 SCC 45, [2009] 3 SCR 146, the leading case on severance, and considered thevarious factors identified in that case. After weighing the Last factors and recognizing that the burden of proof lay on the accused, thetrial judge concluded that the interests of justice did not require severance of the 2007 counts from the remaining counts.

See 2012MBQB 229. [104] In Last, Deschamps J explained that the standard of review with respect to a trial judge’s decision on severance is one ofdeference. An appellate court should not interfere with a severance decision unless the judge acted unjudicially or the ruling resulted inan injustice (see para 14). When considering whether a judge acted unjudicially, the appellate court should only interfere if the judgeerred on a question of law or made an unreasonable decision (see para 21).

An unreasonable decision could result from the failure of thetrial judge to conduct a proper balancing of the relevant factors. [105] The accused contends that the trial judge erred by improperly applying the Last factors.

He argues that the trial judgemisapprehended what a “factual nexus” is in law, gave inappropriate weight to the legal nexus between the charges and the potential useof similar fact evidence, and improperly discounted the accused’s indication that he might testify to some charges and not others. [106] The Crown argues that the trial judge considered the correct test and he analyzed the Last factors properly.

Analysis [107] In Last, Deschamps J noted that the factors identified by the courts in prior cases on severance are not an exhaustive list,and that the relevant factors in any particular case will depend upon how the interests of justice will be served in the circumstances ofthat case.

The factors include (at para 18): [T]he general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether theaccused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity ofproceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potentialprejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences asbetween co-accused persons.

Factual Nexus [108] The accused argues that the trial judge incorrectly analyzed the “factual nexus” factor. In this regard, the trial judgewrote (2012 MBQB 229 at para 14): In my view, there is a strong factual connection between the allegations in counts 1 and 2, and those in counts 3 to 8. Each attack was ofa sexual nature and was made on a single vulnerable person who was alone and was selected for the attack. The presence of a two-year-old child in counts 6 to 7 is immaterial in addressing this issue.

Each attack took place either in the same building where [the accused]resided or a building very close by and was preceded by consumption of alcohol. Each attack began in a public place and took place in astairwell to which other persons had access or en route to a stairwell. The attack in counts 1 and 2 took place a relatively short timebefore the other three attacks, which took place on the same day.

Each victim was subjected to physical violence or threatened with aknife. [109] The accused relies on R v JCL, 2012 ONSC 6603 , for the proposition that an overlapping of transactions isrequired to establish factual nexus. In JCL, Hennessy J wrote (at paras 18-19): The concept of factual nexus includes inter alia whether there would be substantively overlapping transactions (R. v. Ticknovich, 2003ABQB 597, 353 A.R. 8, at para 70). In R. v. Arp (SCC), [1998] S.C.J. No. 82 at para. 52 [[1998] 3 SCR 339], Cory J. warned against confusingadmissibility of similar fact evidence with the severance analysis.

In this case, the relationship and the venue are a link between theaccused and each of the complainants and would likely be emphasized in a similar fact application. However, they are not so much of alink between the complainants. A factual nexus often refers to a continuity of events, time and means. Where there is a clear factualnexus, the logic of a joint trial is more compelling than where there are multiple sets of events, linked together only by the identity of theperson charged and the place where the events occurred: see R. v.

Ticknovich at para. 66. [110] In our view, there are two problems with the accused’s reliance on JCL. First, the comment in JCL indicating that theconcept of factual nexus includes substantively overlapping transactions misquotes R v Ticknovich (NM), 2003 ABQB 597 at para 18,353 AR 8.

In that case, Watson J (as he then was) was referring to legal nexus rather than factual nexus, as evidenced by his reasons (atpara 70): The concept of legal nexus refers in the main to whether there would be substantively an overlapping transaction or transactions, such asdiscussed in Giroux [2002 ABQB 532, 318 AR 201], or whether there would be essential elements in common as between Counts – so asto raise the risk of inconsistency of verdict if severance occurred – or whether there is a commonality of the matters such as to give rise topotential for a res judicata confusion. [111] Second, although the Court in JCL was correct in stating that in R v Arp, (SCC), [1998] 3 SCR 339,“Cory J warned against confusing admissibility of similar fact evidence with the severance analysis” (at para 19), the context of thatwarning was to caution judges not to confuse the respective burdens relating to these two concepts.

That is, that an accused bears theburden of proof in a severance motion, whereas the Crown bears the burden of proof in a similar fact evidence motion.

It should also benoted that in Arp, Cory J indicates that, “These respective burdens may involve the consideration of similar factors” (at para 52). [112] The appropriate approach to analyzing the factual nexus factor is found in the dissenting reasons of Finch CJBC in R vBlacklaws (FO), 2012 BCCA 217, 322 BCAC 107, which were adopted by the Supreme Court of Canada, 2013 SCC 8, [2013] 1 SCR403. [113] In Blacklaws, Finch CJBC concluded that the trial judge had not acted unjudicially in denying severance of offencesrelating to two incidents that occurred nearly three months apart.

Each complainant was a sex trade worker who was picked up by theaccused in a vehicle, driven to a location to purchase and consume crack cocaine and subsequently assaulted.

There were severaldifferences between the incidents, including that in the first incident there was an allegation of sexual assault, but not in the other. [114] Finch CJBC noted that a slight factual nexus is not a bar to denying severance (at para 33): Because decisions on the issue of severance are meant to be made through a balancing of a variety of factors, courts have not establisheda “minimum” factual nexus that would justify the hearing of all counts together. [115] After reviewing the facts relating to the two incidents, Finch CJBC concluded (at para 36):

Given the many factors that the trial judge was required to balance, and the high degree of discretion involved, in my view it was open tothe judge to find that the factual nexus between the two incidents was a factor militating against severance. [116] Therefore, there is no requirement of “an overlap in transaction” in order to establish a factual nexus, as argued by theaccused. [117] Furthermore, the trial judge was entitled to take into account facts that could also be considered in a similar fact evidenceapplication.

In addition to Arp, as previously mentioned, there are many appellate decisions that have referred to facts which couldsupport a similar fact evidence application when considering the factual nexus factor in a severance application.

See R v Mastronardi(KWR), 2014 BCCA 302 at paras 27-30, 358 BCAC 264; Cartier c R, 2015 QCCA 329 at paras 52, 55 (QL), leave to appeal to SCCdenied, [2015] SCCA No 473 (QL); R v Gamble (IA), 2014 SKCA 101 at para 11, 442 SaskR 300; R v Blea, 2012 ABCA 41 at para 45,287 CCC (3d) 444; R v Waudby, 2011 ONCA 707 at paras 4, 7 ; and R v Ward (B), 2010 ONCA 806 at paras 8, 11-12, 272OAC 64. [118] We do not agree with the accused’s assertion that the trial judge confused the two principles, as evidenced in thefollowing passage from his reasons (2012 MBQB 229 at para 3): The issue to be decided on this motion bears some resemblance to the issue, which may have to be addressed in final argument on themotion by Crown counsel, that is, whether the evidence addressed in support of one or more of the seven counts of November 23, 2008,may be considered in determining whether the Crown has proved the guilt of [the accused] on counts 1 and 2.

The difference betweenthe two motions is that the burden of proof of grounds for severance rests on [the accused] whereas the burden of proof of theadmissibility of similar fact evidence rests on the Crown. [119] We see no error in the trial judge’s assessment of the factual nexus factor nor are we persuaded that he made anyreviewable errors in his review or weighing of the other factors, as we will briefly explain.

Legal Nexus and Similar Fact Application [120] The accused asserts that the trial judge gave inappropriate weight to the legal nexus between the charges and thepotential use of similar fact evidence. [121] We note that the trial judge referred only to “legal issues arising from the taking of penile swabs” (2012 MBQB 229 atpara 14) after the 2007 arrest and the 2008 arrest.

However, in our view, there is nothing to indicate that the trial judge considered thisas anything more than a neutral factor. [122] As for his consideration of the Crown’s application to admit similar fact evidence, we see no error. [123] The accused submitted that the trial judge was not in a position to assess the weight of the similar fact evidenceapplication, as he had yet to hear arguments on that application. However, a trial judge is not required to determine whether similar factevidence is admissible at the time of a severance motion.

Rather, the trial judge only needs to assess whether the similar fact evidenceapplication has some possibility of success in order for this factor to be given weight.

See Blacklaws at paras 42-43, Mastronardi at para35. [124] The record demonstrates that both the trial judge and defence counsel recognized that the trial judge was not required todecide the similar fact evidence application during the severance motion. [125] After having heard all of the Crown’s evidence regarding the four attacks, and concluding that there was a “strongfactual connection” (2012 MBQB 229 at para 14) between the counts, the trial judge concluded that there was also “a reasonableprospect of this Court admitting similar fact evidence” (2012 MBQB 229 at para 15).

The accused has not persuaded us that the trialjudge erred by coming to that conclusion at that time in the proceedings. Furthermore, the weight given to that factor by the trial judgeis entitled to deference. Intention to Testify [126] Finally, the accused argues that the trial judge erred by discounting the accused’s indication that he may wish to testifyto some charges and not others. [127] The intention to testify should have both a subjective and objective component.

In respect of the objective component,the burden was on the accused to satisfy the trial judge that the circumstances objectively establish a rationale for testifying on somecounts but not others (see Last at para 26). [128] In this case, the accused’s counsel indicated that there was certainly “the possibility that [the accused] would have totake the stand in order to counter” the evidence in relation to the 2007 counts. This does not express a subjective intention to testify. This is an objective, factual statement which could have been made by Crown counsel.

In addition, the accused did not indicate asubjective intention not to testify on the remaining counts. Accordingly, we are not persuaded that the trial judge erred in discountingthe accused indication that he may wish to testify in respect of the 2007 counts. [129] To summarize, the trial judge’s decision to dismiss the severance motion is entitled to deference. He referred to the

correct legal test and considered the proper factors. We are not persuaded that the denial of the severance application resulted in aninjustice. VII. Similar Fact Evidence [130] The Crown applied to the trial judge to admit the evidence of each count as similar fact evidence in respect of the othercounts. In particular, the Crown wished to rely on the similar fact evidence in respect of the issues of absence of consent and lack offabrication on the part of Complainant 1 and Complainant 4.

The Crown was not relying on the similar fact evidence to prove theidentity of the assailant. [131] The trial judge referred to the leading case of R v Handy, 2002 SCC 56, [2002] 2 SCR 908. He reviewed the sevenfactors identified in Handy (not an exhaustive list), that may be helpful for determining if there is a sufficient connection between thesimilar facts and the allegations set out in the charges. After reviewing these factors, the trial judge granted the Crown’s application andadmitted the similar fact evidence.

See 2012 MBQB 230. [132] The accused contends that the trial judge erred in admitting the similar fact evidence because its probative value is slightand is outweighed by its prejudicial nature. The accused argues that the degree of similarity of the alleged similar facts was insufficientto allow the trial judge to have assigned to it the probative value that he did, and that the trial judge failed to properly assess theprejudicial nature of the similar fact evidence. [133] He also argues that the manner in which the similar fact application was argued as part of the overall trial was unfair.

The application was argued after the Crown closed its case, and after the accused was asked whether he would be calling evidence. Thetrial judge’s ruling was given as part of his reasons for conviction delivered seven weeks after closing arguments were made.

Theessence of the accused’s argument is that it was unfair for the accused not to know the result of the similar fact application at the time hewas required to decide if he would call evidence. [134] The Crown submits that the similar fact evidence was admissible because it was useful to the trier of fact to assess theevidence of Complainant 1 and Complainant 4.

The Crown also argues that the risk of moral or reasoning prejudice is low in a judge-alone trial and that defence counsel did not object to the procedure adopted in respect of the similar fact application, and it should bepresumed that all parties considered it to be fair. [135] For the reasons that follow, we are not persuaded that the trial judge erred in admitting the similar fact evidence. Standard of Review [136] Absent an error in principle, deference is owed to a trial judge’s decision to admit similar fact evidence.

The standard ofreview was set out in R v Shearing, 2002 SCC 58, [2002] 3 SCR 33 (at para 73): In the weighing up of probative value versus prejudice, a good deal of deference is inevitably paid to the view of the trial judge: B. (C.R.)[ (SCC), [1990] 1 SCR 717], at p. 733. This does not mean that the trial judge has a discretion to admit similar factevidence whose prejudicial effect outweighs its probative value, but it does mean that the Court recognizes the trial judge’s advantage ofbeing able to assess on the spot the dynamics of the trial and the likely impact of the evidence on the jurors.

These are evidentiary issueson which reasonable judges may differ and, absent error in principle the decision should rest where it was allocated, to the trial judge. See also Handy at para 153; and R v Cresswell, 2009 ONCA 95 at para 7 . Analysis [137] Similar fact evidence is evidence of misconduct by the accused which is outside of the subject matter of the offenceunder consideration. See Handy at para 3.

Such evidence is presumptively inadmissible. [138] The policy for this general exclusionary rule is that, while the propensity of the accused to commit an offence inferablefrom similar facts may be relevant in some cases, its potential for prejudice is very great, and will often outweigh the probative value ofthe evidence. See Handy at para 37. [139] There are two types of prejudice that may arise from the admission of similar fact evidence.

Reasoning prejudice arisesif the jury is confused or distracted by the evidence of other misconduct and the time it takes to hear it, and the jury puts more weight onit than is warranted. Moral prejudice arises if the jury convicts based on its conclusion that the accused is a bad person. See Handy atpara 31. [140] Despite this general exclusionary rule, it has also been recognized that similar fact evidence may be so highly probativeof an issue in the trial that its admission will outweigh the potential prejudice to the accused.

See Handy at para 41. [141] The test for the admissibility of similar fact evidence was summarized in Handy (at para 55): Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance ofprobabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs itspotential prejudice and thereby justifies its reception.

[142] As a result, the issue for trial judges is how to assess the probative value and the potential prejudice of the similar factevidence in a given case. Assessment of Probative Value [143] Similar fact evidence will only be considered probative if a trier of fact is able to infer from that evidence that 1) theaccused has a situation-specific propensity; and 2) the accused acted in conformity with that propensity in the situation leading to thecharges. These are referred to as the “double inferences” (Handy at para 29).

See also Shearing at para 31. [144] When considering the probative value of similar fact evidence, the similarities between the disreputable conduct and thecharges in issue must be such that the double inferences can be made, and it would be an affront to common sense to suggest that thesimilarities were coincidental. See Sopinka J, dissenting in R v B (CR), (SCC), [1990] 1 SCR 717 at p 751, and quotedat para 41 of Handy. [145] Probative value will exceed prejudice where “the force of similar circumstances defies coincidence or other innocentexplanation” (Handy at para 47).

In other words, it is the objective improbability of coincidence that underpins the admission of similarfact evidence. See Arp at para 44. [146] In Handy, the probative value of similar fact evidence “can only be determined in light of the purpose for which theevidence is proffered” (at para 69). The importance of identifying the issue in question is that the trier of fact may only use the evidencein relation to that issue and not otherwise (see para 70).

Similar fact evidence cannot be admitted solely to prove that the accused has ageneral disposition for misconduct or is otherwise of bad character (see para 72). [147] The degree of connectedness between the similar fact evidence and the alleged offence will determine probative value,particularly if the connections reveal a “degree of distinctiveness or uniqueness” (Arp at para 43), such that the objective improbability ofcoincidence has been established.

See also Handy at para 76. [148] Where the issue is identification of the offender, similar fact evidence will not be admissible unless it reveals apropensity which is so highly distinctive or unique as to amount to a “signature” (Handy at para 77). [149] However, where the issue in question is not identification, a “signature” is not required, nor is it necessary to show a“striking similarity” (Arp at para 44). See also Shearing at para 50; and B (CR) at p 729.

Instead, as indicated by Binnie J in Handyquoting from Grange JA in R v Carpenter (1982), (ON CA), 142 DLR (3d) 237 (Ont CA) at p 244 (at para 78): The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to beintroduced and the other evidence. [150] In Handy, the Court identified seven factors which could help a trial judge to identify similarities or dissimilaritiesbetween the similar fact evidence and the charged conduct. These factors are not exhaustive, and not all factors will be relevant in everycase.

The seven factors are: proximity in time of the similar acts; extent to which the other acts are similar in detail to the chargedconduct; number of occurrences of the similar acts; circumstances surrounding or relating to the similar acts; any distinctive featuresunifying the incidents; intervening events; and any other factor tending to support or rebut the underlying unity of the similar acts (seepara 82). [151] The accused argues that a “signature” was not present in this case, and that there was no distinct pattern of propensityoperating in a closely defined and circumscribed context.

He argues that the differences between the incidents were discounted, and thatthe judge afforded undue probative value to the similar fact evidence. [152] In this case, the issues related to the likelihood of fabrication or consent (i.e., whether the actus reus occurred), not theidentity of the assailant. Accordingly, the similar fact evidence does not have to be highly distinctive, show a “signature” or be strikinglysimilar. [153] The trial judge considered the circumstances of all four attacks and specifically addressed each of the Handy factors.

The trial judge identified the following circumstances which supported the underlying unity of the incidents: • the attacks were carried out upon a vulnerable woman or child; • each victim was alone (save for a two-year-old child in one case); • each victim was not previously known to the accused; • all attacks were perpetrated within a two-week period (taking into account the accused’s time in custody) and three occurred on thesame day; • three attacks occurred in the apartment building in which the accused resided, and one attack occurred in an apartment buildingfour and one-half blocks away;

• three victims were taken from a more public location to a stairwell in the apartment building to perpetrate the sexual assaults, andthe accused was attempting to drag another victim to a stairwell before being interrupted; • three victims were subjected to fellatio and penile penetration (the fourth assault was interrupted); • each victim was subjected to physical violence sufficient to overcome resistance, or threatened with a knife; • a knife was found on the accused following his arrest relating to the first attack, and a knife was found on the accused followinghis arrest relating to the last of the three attacks that occurred on the same day; • each victim was watched and attacked in a predatory fashion; • the accused was under the influence of alcohol in each case; • the first attack took place approximately three months after the accused started living in the building where the attack occurred, andthe remaining th

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