) ) HER MAJESTY THE QUEEN Respondent – v. –, 2017 ONSC 6128

CITATION : R. v. Vora, 2017 ONSC 6128 COURT FILE NO.: 17-0077 DATE: 2017/10/26 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – PARAG VORA Applicant ) ) ) ) ) ) ) ) ) ) ) ) ) )) A. Scott, on behalf of the Crown D. Humphrey and J. Makepeace, on behalf of the Applicant HEARD: October 13, 2017 A. J. G oodman J.: RULING ON APPLICATION FOR severance [ 1 ] This is an application brought by Parag Vora (“Vora”) for severance of a three count indictment, pursuant to s. 591(3) (

a) of the Criminal Code . 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, (“DK”) and (“CC”), 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 perpetrated against two complainants at divergent periods of time.

The applicant submits that there is a hiatus between the alleged incidents involving DK and the alleged single incident between Vora and CC. 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 propensity conduct in the course of his encounters with both complainants. [ 5 ] Second, the applicant says there is a substantial difference of severity and nature of the alleged offences against DK and the alleged offence against CC.

There is a significant absence of factual nexus between the two complaints. [ 6 ] The applicant concedes that a viable similar fact application would necessitate joinder. Nonetheless, he submits that there is a risk that the prejudice engendered by joinder of the counts including the accused’s right to choose whether to testify with respect to these two different complainants. It would not be overcome and so, it is necessary that the counts be severed by complainant to protect his rights to a fair trial.

By joinder, the applicant submits that the Crown will lead a body of evidence that undermines his character and introduces propensity reasoning. Even in a judge-alone case, the applicant submits that the risk of prejudice is high and that the interests of justice require that he be tried separately on the counts related to the incidents. [ 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 or the underlying circumstances is somewhat intertwined to such an extent that holding separate trials would be an artificial division. [ 8 ] The Crown intends to bring a similar fact application. The Crown also submits that the actus reus is a live issue. These applications are premised on supporting the credibility of the complainants, to negate any defence of lack of opportunity to commit the offences or the notion of fabrication. It may also go to the issue of a distinct propensity to commit a sexual assault as a person in a position of trust

on those under his control or direction in a public place. [9] The Crown submits that an accused’s subjection to cross-examination or taking a different position with respect to one complainantand not the other is not inherently a justification for severance. Multiplicity of proceedings is another factor. The Crown asserts that thelink between the alleged events is relevant and the applicant has not demonstrated that it is in the interests of justice to grant severance ofcounts. Legal Principles: [10] 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. [11] The Code provides for the exercise of discretion where a Court “is satisfied that the interests of justice so require”. These wordsobviously confer a broad discretion. While the Crown is itself given a broad discretion in joining any number of counts in a singleindictment, the Court has the power to order separate trials where the interests of justice requires it. [12] It is not my intention to canvass the plethora of authorities on this subject.

The starting point in considering the exercise of theCourt’s discretion is found in the Supreme Court of Canada’s seminal decision in R. v. Last, 2009 SCC 45 , [2009] 3 S.C.R.146, [2009] S.C.C. 45. [13] In Last, the trial judge had declined to order separate trials where an indictment alleged two separate sexual offences against anaccused, that were unrelated in terms of time and location, as well as involving different complainants. The trial judge found that therewas a nexus in time and place because the incidents occurred roughly one month apart in the same city.

He was not persuaded that thequestion 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. [14] The Court of Appeal dismissed the appeal. The majority held that the trial judge had acted judicially in refusing to sever thecounts in the indictment.

Justice Juriansz dissented, and opined that the trial judge erred in assessing the weight of the relevant factorsand their cumulative effect on the interests of justice. [15] On further appeal to the Supreme Court of Canada, the appeal was allowed and a new trial was ordered. Justice Deschamps, for aunanimous 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. [16]At para. 18 of Last, Deschamps J. listed the factors to be considered by the Court in exercising its discretion under s. 591(3) of theCode: (

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]

Analysis: [17] 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. [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 and probative to the potential admission and use of similar fact evidence at the trial, if such an application isadvanced. No one factor is determinative and all relevant factors must be weighed by a trial judge in the determination of whetherseverance is in the interest of justice. [19] 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 the interestsof the accused and society that trial judges ensure fairness for the accused throughout the proceedings. [20] 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. [21] 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. [22] One complainant was a patient. The other was a co-worker at the hospital. The first complainant stems from an unwanted sexualtouching or fondling of CC’s right breast in August 2014.

The second and third allegations arise from an unwanted touching of DK’sbreast and posterior from events that were alleged to have transpired in 2009. [23] 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. Events separated by six years. The complainants did not know each other and the earlier events only came to lightas a result of police inquiries based on CC’s disclosure. Over clothing or skin-on-skin.

The specific opportunity and location within theinstitution where the incidents are alleged may be at variance as there is a live question of the degree of privacy. [24] While not determinative of the ultimate issue, I must consider the effect of an order severing the counts and ordering separate trials,on the assumption that the Crown will maintain its position that a similar fact ruling should be made.

If separate trials are ordered, twoseparate similar fact applications must be made, and much of the same evidence must be called, at least on a voir dire, on each of them.This would mean that each complainant may have to testify about the events in question a number of different times. While prejudice tothe accused is an important, and perhaps overriding consideration, nevertheless unfairness, or potential unfairness, to the complainants isalso a valid consideration.

Some of these elements, of course, will have relevance to the Crown’s similar fact evidence application. [25] Much of the materials filed in this application refer to the planned similar fact application. As noted by Deschamps J., at para. 34of Last, there is no procedural rule requiring the Crown to bring the similar fact evidence application at the time of the severanceapplication, and in many cases, the assessment of the evidence may be best done once all of the Crown’s evidence has been tendered. InLast, the court found that at the severance motion stage, a similar fact application was not likely to succeed.

In R. v. J.N.W., 2010 ONSC1057 , [2010] O.J. No. 730 (S.C.), Fragomeni J. held that the Crown had “a viable similar fact application”. [26] It is settled law that in respect of similar fact evidence, it is not necessary for me to decide, at this stage, in any definitive way,whether this approach by the Crown would succeed if the evidence comes out the way the prosecution intends: R. v. Minister, 2012ONSC 1040 at para. 46. The determination is whether there is a viable similar fact application that could possibly succeed if theevidence comes out the way the prosecution intends.

Suffice it to state that the two complainants allege that the offences occurred in thehospital setting, in various circumstances of privacy or exclusive opportunity. The offences are similar, the touching or fondling of thecomplainants’ breast. [27] Similar fact evidence, at this juncture, if admissible, is also relevant to the credibility of the complainants in that defence will attackthe credibility and veracity of both complainants on the basis that the incidents described by them were improbable - in part - by virtue ofthe proximity of others to the event(

s) and the risk of discovery: See R. v. T.L.M., 2011 NLCA 24 , [2011] N.J. No. 118 (C.A.),R. v. M.F. [2010] O.J. No. 1268 (S.C.). [28] Dissimilarities have to be considered as well in order to determine whether they detract from the probative value of the evidence:R. v. L.B. (ON CA), [1997] O.J. No. 3042 (C.A.). [29] Despite the time span between the two complainants' allegations, factually, the incidents involving both complainants areintertwined. Both complainants were in a doctor patient or co-worker setting with the applicant at the time the sexual assaults wereperpetuated on them.

The complainants were in a public place but the alleged acts occurred in a private or semi-private setting. There issome degree of control or direction over both complainants. There is no issue of possible collusion among the complainants. [30] It may be that certain factors may eventually detract from the nexus required in a formal similar fact application. However, at thisstage of the application, I am persuaded that it is not only a focus on the acts themselves, but all of the surrounding circumstances thatare relevant to my determination.

There is at least some modicum of a basis for the viability of the similar fact application. [31] Aside from the aforementioned, other factors need be considered. As mentioned, they include prejudice to the accused, the nexusbetween the allegations, the complexity of the evidence, tactical decisions about testifying, multiplicity of proceedings, amongst otherfactors.

[ 32 ] Recall that in Last , Deschamps J. focused on the accused’s intention to testify; the nexus between the incidents; the potential use of similar fact 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 prejudice to the accused. [ 33 ] At para. 26 of Last , Deschamps J. observed that, it would be necessary for an accused to provide sufficient information to convey that, objectively, there is substance to his or her testimonial intention.

Here, the applicant argues that he would be deprived of a meaningful right to elect to testify with respect to one complainant but not the other in a joint trial. [ 34 ] Even if the accused’s stated intention is to testify on some but not all counts is objectively justifiable, this is not determinative of this application. 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 to involve, to a large extent, issues of credibility.

While the accused may succeed in raising doubts as to the credibility of one complainant or the other, the decision of whether to testify or not is likely to be based on strategic considerations, and may involve factors as to whether the accused, himself, will likely be a credible witness. It is probable, in my view, that the strategic decision of whether to testify or not will involve the same considerations with respect to each of the complainants.

In any event, the applicant has indicated that the defence will be a total denial with respect to the allegations of both complainants. [ 35 ] H ere, the applicant has elected to have his trial before me as a judge sitting alone. That said, the applicant acknowledges that the moral or reasoning prejudice, while reduced, is not eliminated. Defence counsel relies upon the decision of the Alberta Court of Appeal in R. v. Villeda , 2011 ABCA 85 . [ 36 ] In Villeda the accused was charged with assault of his live-in girlfriend.

At trial, Romaine J. admitted evidence of previous physical incidents between the accused and the complainant. After finding that the evidence had “real probative value”, Romaine J. made the following comments about prejudice: On the issue of “moral prejudice”, Mr. Villeda is charged with offences that are more serious than the similar fact incident and, therefore, the similar fact evidence does not overtly prejudice Mr. Villeda. As I am trying this case as a judge alone, aware of the danger of prohibited reasoning, I am able to instruct myself accordingly.

With respect to “reasoning prejudice”, as a judge trying the case alone, the similar fact evidence will not be as distracting or inflammatory as it may be to a jury, nor give rise to confusion over the real issue to the same extent as if a jury was involved. There is no reason in this case why Mr. Villeda would be unable to respond to the evidence. [ 37 ] An appeal was launched. After the first hearing in 2010, [ 2010 ABCA 351], the Court of Appeal ordered a new trial on the basis that the similar fact evidence had been improperly admitted.

However, the first hearing was argued without the benefit of the trial judge’s full reasons, neither the Crown nor the appellant being aware that the trial judge had issued voir dire reasons for admitting the similar fact evidence some months after the conviction.

Consequently, leave was granted to reargue the appeal. [ 38 ] After the second hearing, the Alberta Court of Appeal adopted the reasoning of the first panel that the prejudicial effect of the evidence far outweighed its probative value. [ 39 ] The Court of Appeal went on to state that the trial judge’s comments about prejudice revealed a further error of law because “the trial judge seem[ed] to have proceeded on the basis that the absence of a jury minimized the risk of forbidden reasoning and resulting prejudice to the Appellant” at para. 18: Now that we have the voir dire reasons of the trial judge, we respectfully endorse the first panel's analysis.

We would add only that paras. 18 and 19 of the trial judge's reasons betray a further error of law. The trial judge seems to have proceeded on the basis that the absence of a jury minimized the risk of forbidden reasoning and resulting prejudice to the Appellant. While it is true that judges, by virtue of their training and experience, are better able to instruct themselves regarding the dangers of similar fact evidence, the ability to self-instruct is not a panacea. Human nature and its attendant weaknesses and vulnerabilities may, on occasion, intrude upon the most rigorous and conscientious fact-finding.

The spectre of moral or reasoning prejudice is always a concern regardless of who is sitting in judgment of the guilt or innocence of an accused. [ 40 ] In considering the Villeda decision, the Court of Appeal appears to be critical of the trial judge who did not fully elucidate the basis for admitting evidence in considering its probative value and potential prejudice in a judge-alone case. In my opinion, it is in this context that the court made the comments referred to by counsel and referred to elsewhere in the jurisprudence. [ 41 ] For example, in R. v.

Y.C.B ., 2014 ONSC 1037 , the reference to Villeda is in a very brief

section in relation to the discussion on the potential prejudicial effect of the similar fact evidence. By this point in the judgment, Lalonde J. had already decided that most of the similar fact evidence was not sufficiently similar to provide much probative value at para. 104. The risk of prejudice in judge alone trials was not a focus in the decision. [ 42 ] In R. v. J.M ., 2011 ONSC 3924 , Gordon J. raised Villeda in response to the Crown’s submission that “the risk of prejudice to the Applicant is minimal, if not non-existent”.

Although Gordon J. went on to grant the application to sever counts , he did acknowledge that the risk of prejudice was reduced (though not eliminated) by the accused’s election to be tried by judge alone: at para. 12. [ 43 ] In respect of this particular issue, in R. v. T.W ., 2014 ONSC 4531 , Campbell J. granted severance of a five-count indictment. At paras. 13 and 14 of the decision, Campbell J. cited both lines of authority in respect of this topic, albeit in obiter . The reference in the case to Villeda is within a statement of general legal principles.

Before reproducing the comment from Villeda , Campbell J. acknowledged that “in trials by judge alone the potential prejudice to the accused is greatly reduced”: at para. 12. [ 44 ] In R. v. Pilgrim , 2017 ONCA 309 , one of the issues on appeal was the admissibility of evidence of prior discreditable conduct. The Court of Appeal cited Villeda at para. 60 :

Even if it had been admissible as part of the narration of events, the potential dangers associated with this discreditable conduct evidencewere acute, even in a trial by judge alone: see R. v. Villeda, 2011 ABCA 85, 269 C.C.C. (3d) 394 (Alta. C.A.), at para. 18. It wasessential that the trial judge clearly articulate the limited use he was permitted to make of this evidence — evaluating Mr.

Pilgrim'scredibility — and restrict his assessment of that evidence to its limited use. [45] In my opinion, the Ontario Court of Appeal, while recognizing the statement in Villeda did not, by any stretch of the imagination,foreclose the prospect of a judge sitting alone dealing with the very important issues of similar fact or discreditable conduct in weighingthe potential for propensity reasoning and prejudice. Indeed, judges are called upon each and every day to make such rulings as triers offact. There are no juries in the provincial courts.

None can gainsay that jurists cannot act accordingly in a judge alone setting. In thesame vein, the take away from these decisions appears to be the recognition that a judge sitting alone and acknowledging the legal issue,in of itself, is not enough.

A trial judge must articulate the basis upon which he or she reasoned on the issues of propensity and prejudicereasoning, the probative value of evidence and its prejudicial effect; whether it is in the course of a similar fact application, severance, orotherwise. [46] While persuasive, I am disinclined to follow the statement raised by the Alberta Court of Appeal in Villeda and prefer the other lineof authorities exemplified by the Ontario Court of Appeal’s decision in R. v. Cresswell, 2009 ONCA 95 , [2009] O.J. No. 363and R. v. T.B., 2009 ONCA 177 , [2009] O.J. No. 751.

While there was no severance application in Cresswell, the Court ofAppeal offered at para. 10: Finally, we observe that this was a judge alone trial on a multi-count indictment. There was no severance application and it wasinevitable that the judge deciding the case would hear all of the evidence. While this, of course, does not by itself render the evidenceadmissible across all counts, it significantly reduces the risk of prejudice.

Moreover, in his reasons, the trial judge properly identified thepermitted use of similar fact evidence and cautioned himself against prohibited lines of reasoning. [47]In T.B., at para. 27, the Court of Appeal stated: As the proposed similar fact evidence in this case was related to all the counts in the indictment and the evidence was already before thecourt, and because this was a non-jury trial, reasoning prejudice was not a real issue.

Unlike cases such as Handy, this was not a casewhere the proposed similar fact evidence was extrinsic to the charges before the court and required extra witnesses to present it. The onlyadditional time needed as a result of the similar fact evidence was the time required to argue the motion to admit it.

As trial judges arepresumed to know the law and the proper and improper uses of evidence, it seems counterintuitive that similar fact evidence could beexcluded in a non-jury trial based on the trial judge's determination that the evidence would confuse him or induce him to put moreweight on it than is logically justified. [48] Finally, as stated by Finlayson J.A. for the Court of Appeal in R. v. L.E., (ON CA), [1994] O.J.

No. 2641 atpara. 20 on the issue of severance: “The existence of a jury is not a specific factor, but the fact that there is not going to be a jury meansthat the consideration of complexity, and to a lesser extent prejudice, will not have the same weight”. [49] 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. In Last, at paras. 26 – 42, Deschamps J. identified two significant issues. First, joinder creates thepotential for cross-pollination on credibility assessments.

Second, joinder creates a risk of prohibited propensity reasoning. [50] As mentioned, the legal and factual nexus between or among the various counts, while perhaps being either neutral or slightlyfavouring a single trial standing alone, assume somewhat greater importance in terms of the Crown’s similar fact evidence application. [51] The Crown’s argument has some merit to the extent that the evidence of each complainant would be admissible and necessary forthe purpose of the actus reus.

In terms of the benefits to the administration of justice, if separate trials were held, it would be necessaryfor the Crown to call all of the same witnesses at each trial. Of some significance here is the avoidance of multiple proceedings with theconcomitant minimization of potential unfairness to the complainants. Conclusion: [52] The applicant raises concerns regarding the potential for improper propensity reasoning and moral prejudice that might impactupon his fair trial rights.

While potential prejudice to an accused is usually a factor favouring separate trials, I do not agree that the resultof a joint trial in this case would be to risk the complainants’ evidence being improperly used for the prohibited purposes. [53] I agree with the Crown that there is a viable foundation for similar fact evidence and a factual and legal nexus for joinder ofcounts. I understand that the defence for both DK and CC’s allegations will be one of denial or lack of opportunity.

In order to prove theallegations with respect to each complainant, if severance were granted, the Crown would need to call similar admissible evidence forboth trials. The legal issues are the same and the surrounding circumstances weigh in favour of joinder of counts. [54] Frankly, my decision in this application is a close call.

However, in this judge alone case, I am not persuaded that by not severingthe counts, the applicant will endure prejudice that cannot be balanced with appropriate rulings as to the admissibility of evidence; alongwith proper consideration of probative value and potential for prejudice as it relates to evidence for each count in the indictment. [55] For all of the aforementioned reasons, the application for severance of counts is dismissed. A. J. GOODMAN, J. Date: October 26, 2017

CITATION : R. v. Vora, 2017 ONSC 6128 COURT FILE NO.: 17-0077 DATE: 2017/10/26 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and - PARAG VORA Applicant RULING ON APPLICATION FOR SEVERANCE A. J. GOODMAN, J. Released: October 26, 2017