) ) HER MAJESTY THE QUEEN Respondent – v. –, 2017 ONSC 1077

CITATION : R. v. Price, 2017 ONSC 1077 COURT FILE NO.: 16-0131 DATE: 2017/02/15 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – SAMUEL ROY PRICE Applicant ) ) ) ) ) ) ) ) ) ) ) ) ) )) J. Booy, on behalf of the Crown G. Read, on behalf of the Applicant HEARD: February 10, 2017 A. J. G oodman J.: RULING ON APPLICATION FOR severance [ 1 ] This is an application brought by Samuel Price (“Price”) for severance of a three count indictment, pursuant to s. 591(3) (

a) of the Criminal Code . On February 10, 2017, I provided my oral ruling and denied the application with reasons to follow. These are my Reasons. Issues: [ 2 ] The central issue is whether the applicant’s right to a fair trial will be undermined by the joinder of counts related to two different complainants, (“KTG”) and (“TW”), from events alleged to have occurred years apart. [ 3 ] Will the applicant be sufficiently prejudiced by the counts as alleged in the indictment? Do the interests of justice require that the counts be severed?

Positions of the Parties: [ 4 ] The applicant moves for severance of counts in relation to alleged sexual assaults against both of the complainants at divergent periods of time. First, the applicant submits that there is an almost decade-long hiatus between the alleged single incident involving TW and the alleged multiple incidents between the applicant and KTG.

This alone may cause the trier-of-fact to suppose that the applicant is a pattern offender who has engaged, or has tried to engage, in such conduct in the course of his long term relationships with both TW and KTG’s respective mothers. [ 5 ] Second, the applicant says there is a substantial difference of severity and persistency between the alleged offences against TW and the alleged offences against KTG. The offence of sexual assault includes variations of egregiousness.

There is a risk that the trier-of-fact will experience the "cross-pollination" effect by inferring equal culpability for the lesser offence, when a less egregious offence is tried with more egregious offences. [ 6 ] The applicant submits that there is a grave risk that the prejudice engendered by the joinder of the counts with respect to these two different complainants would not be overcome by any jury instruction and so, in this case, it is necessary that the counts be severed by complainant to protect the right to a fair trial guaranteed by the Charter .

By joinder of counts, the applicant submits that the Crown will lead a body of evidence that undermines his character and introduces propensity reasoning. In these circumstances, Price submits that no limiting instruction to a jury can cure the damage. The applicant submits that the interests of justice require that he be tried separately on the counts related to the two complainants. [ 7 ] The Crown submits that none of the rationale relied upon by the applicant, collectively or standing alone, require severance.

The Crown contends that the evidence of the two complainants is intertwined to such an extent that holding separate trials would be an artificial division leaving the jury with unaccounted for gaps in the evidence.

[8] The Crown says both complainants were in a father/stepdaughter relationship with Price at the time the sexual assaults wereperpetuated on them. Price convinced one complainant that sexually assaulting her was "normal" because he had done the same thing toher step-sister, the other complainant. The disclosure of the events evidence is also intertwined.

TW disclosed the sexual assault onlyafter she discovered that KTG was sexually assaulted by the applicant as well. [9] The Crown may bring a similar fact and a prior discreditable conduct application(s), related to the applicant making the two youngcomplainants watch pornography with him. The Crown submits that these applications are premised on supporting the credibility of thecomplainants and to negate any defence of fabrication. It is not a complicated issue. [10]The Crown suggests that Price may not testify and so the application for severance on this ground is premature.

In any event,subjection to cross-examination or taking a different position with respect to one complainant and not the other is not inherently ajustification for severance. The Crown submits that the applicant has not demonstrated that it is in the interests of justice to grantseverance. Legal Principles: [11] The joinder and severance of counts in an indictment are dealt with in s. 591 of the Criminal Code, which provides as follows: 591.

(1) Subject to

section 589, any number of counts for any number of offences may be joined in the same indictment, but the countsshall be distinguished in the manner shown in Form 4.

(2) Where there is more than once count in an indictment, each count may be treated as a separate indictment.

(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; and (

b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more counts. [12] The relevant subsection for the purposes of this application is s. 591(3)(b). The Code provides for the exercise of discretionwhere a Court “is satisfied that the interests of justice so require”. These words obviously confer a broad discretion.

While the Crown, isitself given a broad discretion in joining any number of counts in a single indictment, the Court has the power to order separate trialswhere the interests of justice requires it. [13] It is not my intention to canvass the plethora of authorities on this subject, and I will refer only to a few cases for theirprinciples. The starting point in considering the exercise of the Court’s discretion is found in the Supreme Court of Canada’s decision inR. v.

Last, 2009 SCC 45 , [2009] 3 S.C.R. 146, [2009] S.C.C. 45. [14] In Last, the trial judge had declined to order separate trials where an indictment alleged two separate sexual offences againstan accused, that were unrelated in terms of time and location, as well as involving different complainants. The trial judge found thatthere was a nexus in time and place because the incidents occurred roughly one month apart in the same city. He was not persuaded thatthe question of prejudice would be significant, since a modern jury should be able to handle appropriate instructions given by the trialjudge.

He did not place much weight on a statement by defence counsel that the accused might wish to testify on counts related to oneincident but not the other. The accused was convicted on all counts, and he appealed. [15] The Court of Appeal, dismissed the appeal. The majority held that the trial judge had acted judicially in refusing to severthe counts in the indictment.

Justice Juriansz dissented, and opined that the trial judge erred in assessing the weight of the relevantfactors and their cumulative effect on the interests of justice. [16] On further appeal to the Supreme Court of Canada, the appeal was allowed and a new trial was ordered. JusticeDeschamps, for a unanimous Court, states the following at para. 16: The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in theinterests of justice, as per s. 591(3) of the Code.

The interests of justice encompass the accused’s right to be tried on the evidenceadmissible against him, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner. Theobvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count. [17] At para. 18 of Last, Deschamps J. listed the factors to be considered by the Court in exercising its discretion under s. 591(3) ofthe Code: (

a) the general prejudice to the accused; (

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

c) the complexity of the evidence; (

d) whether the accused intends to testify on one count but not another; (

e) the possibility of inconsistent verdicts; (

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

g) the use of similar fact evidence at trial;

(

h) the length of the trial having regard to the evidence to be called; (

i) the potential prejudice to the accused with respect to the right to be tried within a reasonable time. See: R. v. E.(L.), (ON CA), [1994] O.J. No. 2641 (C.A.); R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333. 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. [1] [18] The factors identified by the Supreme Court of Canada are not exhaustive. They simply help capture how the interests of justicemay be served in a particular case to avoid an injustice.

Of course, some of these factors will have greater or less weight, or even noweight, depending on the circumstances. Some of these factors may overlap. For example, the legal and factual nexus between thecounts will be relevant to the potential admission and use of similar fact evidence at the trial, if such an application is advanced. No onefactor is determinative and all relevant factors must be weighed by a trial judge in the determination of whether severance is in theinterest of justice.

Analysis: [19] A trial judge has a wide discretion to order separate trials where joinder of counts would exact an injustice. Severance will begranted only where an accused displaces the presumption, on a balance of probabilities [20] A person charged with a crime has a right to be tried on evidence admissible against him or her. That said, inadmissible orprejudicial evidence can potentially impact the fairness of the proceedings and occasion a miscarriage of justice.

It is in both interests ofthe accused and society that trial judges ensure fairness for the accused throughout the proceedings. [21] Weighing against severance is the desire to avoid multiple proceedings, the prospect of two lengthy trials and the potential ofinconsistent verdicts.[2] Where, however, the risk of prejudice to an accused is significant and outweighs the benefits to theadministration of justice of joinder of counts, severance should be ordered. The weighing exercise ensures that a reasonable balance isstruck between the risk of prejudice and the public interest in a single trial.

I am reminded that severance can impair not only efficiencybut the truth-seeking function of the trial. [22] Before turning to the application of the appropriate factors, I will briefly canvass the facts of this case that are relevant to theexercise of my discretion. [23] The two complainants are the daughters of different partners of the applicant, who cohabitated with him on various dates. TWresided with the applicant from 1993-2004 and KTG cohabitated with the applicant from 2005-2015.

At the preliminary inquiry, KTGtestified that the various sexual events occurred up to two hundred separate occasions between November 2013 and July 2015 and thatthey occurred only when she and Price were home alone. [24] At the preliminary inquiry, TW testified that she shared a bed with the applicant when visiting him overnight. She claimed thatshe awoke to find his hand placed under her pajama bottoms, under her underwear, and on her vagina. He pulled his hand away when sheshifted her body away from him.

She remained in the same bed with him for the remainder of the night. [25] In terms of the nexus among the incidents, I agree with the applicant that there are facts related to the alleged incidents that aredissimilar in scope. One incident versus hundreds of alleged occurrences. Fellatio and masturbation versus a single incident of manualtouching. Events separated by nine or 10 years. That said, the complainants knew each other and were all young girls at the time theincidents occurred.

The incidents all occurred in the applicant’s residence at the time he was co-habitating with the complainants’respective mothers and was alone with the girls. The disclosure of the incidents occurred at approximately the same time with similarexplanations. Whether or not there is possible collusion among the complainants is left for further adjudication at another time. [26] The Crown asserts that the considerable nexus between the alleged events is relevant to the Crown’s application to have all ofthe evidence considered to be similar fact evidence, admissible on all of the counts.

The sisters’ disclosure is temporally linked while theevents in question are separated by a considerable number of years. The disclosure of the incident and the delay and reasons for thereporting of the incidents by KTG is a key component. The fear of reporting or detection along with the timing and rationale for thedisclosure of the alleged offences merits explanation. [27] While not determinative of the ultimate issue, I must consider the effect of an order severing the counts and ordering separatetrials, on the assumption that the Crown will maintain its position that a similar fact ruling should be made.

If separate trials are ordered,two separate similar fact applications must be made, and much of the same evidence must be called, at least on a voir dire, on each ofthem. This would mean that each complainant may have to testify about the events in question a number of different times. Whileprejudice to the accused is an important, and perhaps overriding, consideration, nevertheless unfairness, or potential unfairness, to thecomplainants is also a valid consideration. [28] Some of these elements, of course, will have relevance to the Crown’s similar fact evidence application.

As noted byDeschamps J., at para. 34 of Last, there is no procedural rule requiring the Crown to bring the similar fact evidence application at thetime of the severance application, and in many cases, the assessment of the evidence may be best done once all of the Crown’s evidencehas been tendered. [29] Indeed, it is not necessary for me to decide, at this stage, whether the Crown’s similar fact evidence application will succeed. In Last, at para. 34, Deschamps J. held that it was clear at the severance motion in that case that a similar fact application was not likelyto succeed. In contrast, in R. v.

J.N.W., 2010 ONSC 1057 , [2010] O.J. No. 730 (S.C.), Fragomeni J., held that the Crown had“a viable similar fact application”. [30] Quite apart from the issue of similar fact evidence, the Crown submits that, to some extent, the evidence of each complainantwould be admissible and necessary for the purpose of completing the narrative. This is particularly so, the Crown submits, as it relatesto the delay in the disclosure of the allegations by the complainants. The disclosures by both complainants occurred at approximately thesame time under similar circumstances.

In terms of the benefits to the administration of justice, the Crown submits that if separate trials

were held, it would be necessary for the Crown to call all of the complainants at each trial in any event. It would be necessary for thetrier of fact to have a full picture of the narrative in order to place the events in context. [31] As is the case with respect to the similar fact or prior discreditable conduct evidence issue, it is not necessary for me to decide,in any definitive way, whether this approach by the Crown would succeed.

However, I think there is at least some modicum of a basisfor the Crown to take this position. [32] At para. 26 of Last, Deschamps J. observed that, it would be necessary for an accused to provide sufficient information toconvey that, objectively, there is substance to his or her testimonial intention. Here, the applicant argues that he would be deprived of ameaningful right to elect to testify with respect to one complainant but not the other in a joint trial. [33] At this stage, I am not prepared to give this factor very much weight.

In the final analysis, the resolution of this case is likely toinvolve, to a large extent, issues of credibility. While the accused may succeed in raising doubts as to the credibility of one complainantor the other, the decision of whether to testify or not is likely to be based on strategic considerations, and may involve factors as towhether the accused, himself, will likely be a credible witness. It is probable, in my view, that the strategic decision of whether to testifyor not will involve the same considerations with respect to each of the complainants.

In any event, the applicant has indicated that thedefence will be a total denial with respect to the allegations of both complainants. [34] In Last, Deschamps J. focused on the accused’s intention to testify; the nexus between the incidents; the potential use of similarfact evidence; and the prejudice to the accused.

In the final analysis, she concluded that there was little nexus between the incidents;there was little overall benefit to the administration of justice in having a single trial; and there was a significant possibility of prejudiceto the accused. [35] I note that the discussion in Last was in reference to a jury trial. While prejudice to the accused can be minimized if there is nojury, it cannot be eliminated. Prejudice will be less of a concern, however, if there is no jury. As stated by Finlayson J.A. for the Courtof Appeal in R. v. L.E., (ON CA), [1994] O.J.

No. 2641 at para. 20 on the issue of severance in that case: “Theexistence of a jury is not a specific factor, but the fact that there is not going to be a jury means that the consideration of complexity, andto a lesser extent prejudice, will not have the same weight”. [36] Here, the applicant has indicated his intention to re-elect to judge-alone, but has not as yet made that election.[3] At this stage,it is still a jury trial.

That said, the applicant argues that this means the issue of prejudice is elevated. [37] The applicant says that TW’s claim that her belated disclosure was prompted by learning of KTG’s disclosure is also evidencethat TW could give without any need for a joint trial. The only result of a joint trial would be to risk KTG’s evidence being improperlyused for the prohibited purpose of propensity reasoning. With respect, I disagree.

The fact that TW’s testimony is relevant, materiallyconnected to the allegations provides support for the joinder of counts. [38] Despite the time span between the two complainant's allegations, factually, the incidents involving both complainants areintertwined. Both complainants were in a father/stepdaughter relationship with the applicant at the time the sexual assaults wereperpetuated on them. The applicant convinced KTW that the sexual assaults were "normal" and told her that he had done the same thingto her step-sister, TW.

Disclosure only occurred after TW discovered that KTG was sexually assaulted by the applicant as well. Thesexual assault of her step-sister explains her late disclosure. The overlapping nature of this evidence weighs in favour of trying theallegations together. [39] Frankly, I might have concluded otherwise in the absence of the applicant’s alleged statement to KTG about his committing thesame acts against TW in order to solicit or compel compliance. Most significant is this evidence of the applicant’s statement to KTG,admissible as a statement made against interest.

This evidence is not just for the narrative or non-hearsay purposes. The statementestablishes a clear nexus to the two complainants and such evidence would be called in any event if there were two trials. In my opinion,the jury needs to hear this evidence in order to provide a context within which an alleged admission against interest was made and for theexplanations in reporting the incident as well as the credibility of the witness. [40] It is necessary to return to the words of s. 591(3) of the Code, and decide whether the interests of justice require that there beseparate trials rather than one trial.

As mentioned, the legal and factual nexus between or among the various counts, while perhaps beingeither neutral or slightly favouring a single trial standing alone, assume somewhat greater importance in terms of the Crown’s similar factevidence application or, at least the explanation of the delayed disclosure of the incidents by KTG. [41] The accused’s undisclosed intention to testify on one count but not another is not a strong factor one way or the other. Potential prejudice to the accused is usually a factor favouring separate trials.

Of some significance here is the avoidance of multipleproceedings with the concomitant minimization of potential unfairness to the complainants. In R. v. E.S., (ON CA),[2000] O.J. No. 405 (C.A.) MacPherson J.A. held at para. 18: I see no basis for interfering with the trial judge's ruling not to sever the counts in the indictment and order separate trials with respect toeach complainant. While the counts encompassed separate transactions and complainants, there was an important factual nexus betweenthe assaults. The allegations were disclosed at the same time under similar circumstances.

Much of the strength of the defence theory layin the common issue of the custody battle. As the trial judge pointed out in his charge to the jury, it was the position of the defence "thatall three [BH, PG and RH] were linked by blood, and that the two complainants acted to further [BH's] custody claim". It would havebeen artificial to separate the timing and reasons for both complainants' disclosure from the fact that the disclosure led to criminalcharges against the appellant relating to both complainants. It cannot, therefore, be said that the trial judge acted unjudicially in refusingseverance.

I am also satisfied that, having regard to the manner in which the trial unfolded and the theory of the defence, no injusticeresulted. [42] I agree with the Crown's position that, as in the situation in E.S., it would be an artificial separation of the timing and reasonsfor disclosure in the similar circumstances of this case.

[43] As far as prejudice to the accused is concerned, in Last, at paras. 26 – 42, Deschamps J. identified two significant issues. First,joinder creates the potential for cross-pollination on credibility assessments. Second, joinder creates a risk of prohibited propensityreasoning. Indeed, as stated by the jurist at para. 40, “the significant risk of propensity reasoning to the accused cannot be understated”. [44] The applicant submits that no instruction is capable of curing the reasoning and moral prejudice that will be caused to his fairtrial rights.

Considered cumulatively, the prospect of a fair trial is unthinkable and crafting instructions aimed at mitigating the damageis a futile task. Instructions would need to be multi-fold and would require repetition at various points in the trial. With respect, I fullyacknowledge these valid concerns but do not share the applicant’s assertions as to the disutility of timely and clear jury instructions. [45] In my view, appropriate instructions can safeguard against the misuse of the evidence related to the counts.

The danger does notlie in the information that may be disadvantageous or contrary to an accused’s position, rather the prejudice that may arise in thestatement is the danger of a juror’s misuse of such evidence. The notion or perception that juries are incapable of following theinstruction provided by the trial judge or that they will inevitably follow the chain of forbidden reasoning has been dispelled bynumerous appellate courts.

Many appellate decisions from cases past and present, endorse a solid affirmation in the judicial confidencethat jurors are faithful to their oath, and follow the instructions given to them by the trial judge: Corbett v. R. (1988), (SCC), 41 C.C.C. (3d) 385 (S.C.C.). See also Largie, Phillips v. Nova Scotia, (SCC), [1995] 2 S.C.R. 97, R. v. Vermette, (SCC), [1988] S.C.J. No. 47. Conclusion: [46] While this is a very close call, I agree with the Crown that there is a factual and legal nexus for joinder of counts.

In order toprove the allegations with respect to each complainant, the Crown will need to call the same admissible evidence for both trials, ifseverance was granted, including the testimony of both KTG and TW. The legal issues are essentially the same. The complainants areintertwined from a historical cohabitation setting involving an adult relative.

The allegations were disclosed at roughly the same time.Given the nature of the allegations and the ages of the complainants at the relevant time, the manner and reasons for the delay or non-disclosure is central to the complainants' credibility and for the jury’s determination of the facts. [47] The defence for both KTG and TW's allegations will be one of denial.

I am not persuaded that by severing counts, the applicantwill endure prejudice that cannot be balanced with rulings as to the admissibility of evidence; along with clear and timely instructions asto how a jury must consider the evidence as it relates to each count in the indictment. [48] For all of the aforementioned reasons, severance of counts will not result in the best interests of all parties and for theadministration of justice. In my opinion, the applicant will receive a fair trial when tried for all the alleged counts. The application forseverance of counts is dismissed.

That said, this Ruling is made without prejudice to the applicant to revisit this application shouldcircumstances warrant during the course of the trial. A. J. GOODMAN, J. Date: February 15, 2017 CITATION: R. v. Price, 2017 ONSC 1077 COURT FILE NO.: 16-0131 DATE: 2017/02/15

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and - SAMUEL ROY PRICE Applicant RULING ON APPLICATION FOR SEVERANCE A. J. GOODMAN, J. Released: February 15, 2017