) ) Her Majesty the Queen Respondent – v. –, 2010 ONSC 7024

CITATION: R. v. R.L., 2010 ONSC 7024 COURT FILE NO.: 219/09 DATE: 20101217 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Her Majesty the Queen Respondent – and – R.L. Applicant ) ) ) ) ) ) ) ) Andrew Slater, for the CrownMichael Venturi, for the Applicant ) ) HEARD: December 16, 2010 DECISION ON APPLICATION TO SEVER Cornell J.: [1] This is an application by the applicant, R.L. (“R.L.”) seeking an order severing counts 10 through 13 in an indictment datedJanuary 27, 2010.

Introduction [2] In the indictment, R.L. is charged with six counts of sexual/indecent assault and three counts of assault against S.M. and fourcounts of assault upon C. C. The complainants are brother and sister and are the step-children of the applicant. R.L. seeks to sever thefour counts of assault upon C. C. contained within the indictment. Having heard this motion to sever, I am required to be the trial judge:see R. v. Litchfield (SCC), [1993] 4 S.C.R. 333.

Issues Preliminary Issue [3] The applicant previously brought an application for an order quashing his committal to stand trial on charges of assaultcontrary to s. 245.1(

a) of the Criminal Code of Canada (“Criminal Code”), assault with a weapon contrary to s. 276(

a) of the CriminalCode and assault contrary to s. 266 of the Criminal Code. These counts relate to the applicant’s step-son, C.C. This application washeard by me on September 28, 2010, and was dismissed pursuant to written reasons rendered on October 1, 2010. [4] It was originally suggested by both counsel that it would not be appropriate for me to hear this application in view of the factthat I had rendered a decision on the prior certiorari application. When asked to outline the basis for this concern, counsel were unableto do so and eventually both agreed that I could proceed to hear the application.

If there were to be any doubt about my ability to hearthis application after hearing the certiorari application, the answer can be found in R. v. Robotham (1988), (ON CA),41 C.C.C. (3d) 1 (Ont. C.A.), and R. v. Manitowabi, (Ont. S.C.). Main Issue [5] The main issue in this case is whether the interests of justice require that the four counts in the indictment involving C.C. besevered from the remaining counts which involve his sister, S.M.

Background [6] The original indictment dated January 8, 2010 contained nine counts against R.L. for offences alleged to have beencommitted against S.M. [7] Although initially C.C. was not prepared to provide a statement to the Espanola Police Service, he changed his mind and didso on August 12, 2008. This fact was disclosed to defence counsel on August 19, 2008. [8] During the course of the preliminary hearing, C.C. gave evidence alleging that he had been assaulted by R.L. during thesame time period as S.M. was allegedly assaulted.

At the conclusion of C.C.’s evidence, the Crown asked the justice to add four counts

of assault against C.C. to the indictment, pursuant to s. 548(1)(

a) of the Criminal Code. The presiding justice refused the Crown’srequest with the result that the Crown preferred an indictment pursuant to s. 574(1)(

b) of the Criminal Code, adding four additionalcounts of assault upon C.C. [9] L.M. is the mother of S.M. and C.C. L.M. married R.L. when the children were quite young. [10] In July 2007, S.M. contacted the Espanola Police Service to report historic physical and sexual abuse that her step-father, R.L.,allegedly inflicted upon her from the age of four until she left home at age sixteen. At that time, S.M. also alleged that her youngerbrother, C.C., was physically assaulted during those years. [11] During the initial investigation, C.C. did not want to become involved in the matter.

He initially agreed to provide a statementas a witness. Prior to the preliminary hearing, C.C. made it known that he wished to become a complainant and defence counsel wasimmediately advised by letter of this development. C.C. testified at the preliminary hearing and was subject to cross-examination bydefence counsel. [12] At the preliminary hearing, S.M. described the so-called play fights that occurred between her and R.L. and between R.L. andC.C. She described situations where she and her brother were assaulted at the same time.

C.C. also testified that R.L. physicallyassaulted him and his sister at the same time and that on other occasions, his sister witnessed the assaults to which he was subjected. The Crown has obtained Children’s Aid Society records relating to allegations that R.L. was physically abusive toward S.M. and C.C.when they were children during the time period in question. This documentation has been provided to defence counsel. The Law [13] Section 591(1) of the Criminal Code permits the prosecutor to include a number of offences in an indictment. This

section issubject to the power contained in s. 591(3) of the Criminal Code which provides that the court may sever counts where it is satisfied that“the interests of justice so require.” In making this determination, the Supreme Court of Canada has set out the factors that are to betaken into consideration in R. v. Last, 2009 SCC 45 , [2009] 3 S.C.R. 146. The court stated at paras. 17-18: 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 a single trial. It is important to recall that the interests of justice often call for a joint trial. Litchfield, where theCrown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example. Severance canimpair not only efficiency but the truth-seeking function of the trial. 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: R. v.

E. (L.) (1994), (ON CA), 94C.C.C. (3d) 228 (Ont. C.A.), at p. 238; R. v. Cross (1996), (QC CA), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419; R. v.Cuthbert (1996), (BC CA), 106 C.C. C. (3d) 28 (B.C.C.A.), at para. 9, aff’d (SCC), [1997] 1 S.C.R.8 (sub nom. R. v. C. (D.A.)). Analysis [14] It was generally conceded by both counsel that the complexity of the evidence, whether the accused intends to testify on onecount but not another, the length of the trial and the existence of antagonistic defences had minimal or no application to this case.

It wasargued by the Crown that the legal and factual nexus, the possibility of inconsistent verdicts, the desire to avoid a multiplicity of theproceedings, the potential use of similar fact evidence at trial and the potential prejudice to the accused with respect to the right to betried within a reasonable time were all factors favouring no severance being granted. Although counsel for R.L. took a different view onthe application, I am in agreement with respect to the position taken by Crown counsel with respect to those five factors.

Legal and Factual Nexus between the Counts [15] The applicant argues that the legal and factual nexus between the counts is tenuous. In particular, an argument is presentedthat the time frame of the assaults is so wide and so vague as to favour severance. It is further suggested that the differences in thefactual nature and circumstances of the assaults, and in particular, the fact that there were no sexual assaults against C.C., indicate thatseverance should be granted. The Crown takes a different view of the matter and points to the following legal and factual nexus betweenthe counts: 1.

Both complainants share the same relationship with the accused: they are his step-children; 2. Both complainants were the same age during the alleged assaults: they were young children and early teenagers; 3. The location for the alleged assaults was the family home; 4. The frequency of the assaults is similar, in that both complainants described frequent and numerous assaults; 5. The nature of both complainants’ allegations of assault are very similar; and 6.

In some instances, the accused assaulted both children at the same time. [16] The time frame, location, and family dynamic are, for the most part, quite similar if not identical. The offences are all based

in assault ranging from touching, touching with a weapon to sexual touching. In this respect, it is noteworthy that the applicant does notseek to sever the sexual assault counts from the physical assault counts; he simply attempts to sever the counts of physical assaultinvolving C.C. Complexity of the Evidence [17] Although defence counsel raised a concern about the volume of evidence, it was conceded by both counsel that the evidenceis not complex and on behalf of the Crown, involves only three witnesses.

Possibility of inconsistent verdicts [18] If the application to sever is granted, there is a greater risk of inconsistent verdicts. Multiplicity of proceedings [19] It is generally desirable that there not be a multiplicity of proceedings for a variety of reasons. These include minimizing thelegal expenses of the accused, minimizing the exquisite agony of the accused, the complainants and the witnesses involved in theproceeding, and minimizing the demand on judicial resources.

The applicant argues that administrative convenience does not outweighthe applicant’s right to a fair trial, free from propensity evidence. Similar Fact Evidence [20] In Last, the Supreme Court held, “in many cases a ruling allowing similar fact evidence will favour a joint trial since theevidence in all incidents will have to be introduced in any event.” In this case, the Crown has stated that it intends to bring a similar factevidence application in relation to the physical assaults alleged by both complainants. General Prejudice to the Accused [21] In R. v.

Handy, 2002 SCC 56 , [2002] 2 S.C.R. 908, at para. 31, the Supreme Court discusses “moral prejudice” and“reasoning prejudice” as the types of potential prejudice that may arise in similar fact applications. The court goes on to say, at para.134, that moral prejudice is “the risk of an unfocussed trial and a wrongful conviction. The forbidden chain of reasoning is to infer guiltfrom general disposition or propensity. The evidence, if believed, shows that an accused has discreditable tendencies.

In the end, theverdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence.” [22] Reasoning prejudice is defined as the “distraction of the members of the jury from their proper focus on the charge itselfaggravated by the consumption of time in dealing with allegations of multiple incidents involving two victims in divergent circumstancesrather than the single offence charged” (R. v. Handy at para. 144). [23] The applicant argues that he will suffer both moral and reasoning prejudice if the counts are not severed.

The difficulty withthis position is that this trial is to be heard by judge alone and accordingly, concerns that might otherwise be present in a jury trial are notpresent in this case. The applicant relies upon R. v. Last, where the Supreme Court allowed the appeal indicating that the trial judgeshould have granted the severance application.

This case can be distinguished on the basis that Last involved a jury trial, the accused inthat case indicated that he may wish to give evidence in connection with some of the counts in the indictment but not others and theoffences involved two different accused in different circumstances. [24] The Court of Appeal has recently stated in R. v. M.(J.) (2010), 2010 ONCA 117 , 251 C.C.C. (3d) 325 (Ont. C.A.), atpara. 88, “In trials by judge alone, like this case, the danger that a conviction will be rooted in either reasoning or moral prejudice issignificantly lessened: R. v.

B. (T.) (2009), 2009 ONCA 177 , 95 O.R. (3d) 21, at paras. 28-30; R. v. Cresswell, 2009 ONCA 95,at para. 10; R. v. MacCormack, 2009 ONCA 72, at paras. 56, 68, 69.” [25] Any danger of moral or reasoning prejudice is reduced where the trial is by judge alone. Almost all of the cases on thesubject of severance involve jury trials. In the cases cited by the applicant, the exceptions are R. v. McClory, [1981] O.J. No. 3256 (C.J.)and R. v. B. (C.R.), (SCC), [1990] 1 S.C.R. 717.

In McClory, the application to sever was granted in large part becausethe accused indicated a willingness to testify on some of the counts, but testifying on one of them might put him in the position “of beingcompelled to testify against himself.” This is not the case here. Further, B. (C.R.) was a case dealing with the admissibility of similarfact evidence. The passage cited by the applicant discusses how the court should weigh the prejudicial effect of the similar fact evidenceagainst its probative value, cautioning that the court should beware of propensity reasoning.

While propensity reasoning is a real dangerin both severance and similar fact applications, as explained above, that danger is greatly reduced in a judge-alone trial. Procedural Unfairness [26] The applicant points to my decision on a certiorari application where it was indicated that it would have been preferable if thejustice conducting the preliminary hearing had conducted a voir dire to determine if the allegations involving C.C. formed part of thesame transaction.

Given the limited power of review of preliminary hearings, it was not possible to grant relief on the certiorariapplication as a result of the presiding justice’s refusal to conduct the voir dire. The applicant now says that this procedural unfairnesscan be remedied by granting the application for severance. The first observation that I would make is that the issue in the certiorariapplication dealt with the procedure to be followed while conducting a preliminary hearing.

The second point to be noted is that this issimply one factor to be considered among all of the other factors and is not determinative of the issue. Conclusion [27] The onus is on the accused to satisfy the court that a severance is in the interests of justice on a balance of probabilities. In

determining whether or not the applicant has discharged this onus, the court must consider various factors including those set out by theSupreme Court in R. v. Last, while engaging in the weighing exercise that is required to ensure that a reasonable balance is struckbetween the risk of prejudice to the accused and the public interest in a single trial. [28] This onus will unlikely be met where there is a close nexus in time and place between the alleged events. Severance will alsobe refused where one count may serve as similar fact evidence in respect of another: see R. v. J.J.D. [1997] O.J. No. 451 (Gen.

Div.), atpara. 6, and Regina v. Rollocks, (1994), (ON CA), 19 O.R. (3d) 448 (C.A.), at p. 451. [29] This is a judge-alone trial. After weighing all of the factors, it is clear that not only has the applicant failed to discharge theonus upon him, but that the benefits to the administration of justice in trying the counts together clearly outweigh the risk of prejudice tothe accused. In view of this, the application for severance of counts 10 through 13 in the indictment dated January 27, 2010, isdismissed. Justice R. D. Cornell Released: December 17, 2010