This week’s top three summaries: R v ASL, 2021 ONCJ 205: #severance, R v Beresaw, 2021 ABPC 107: #over80 as soon as practicable, and R v Klimowicz, 2021 ONSC 2589: #mischief
R v ASL, 2021 ONCJ 205
[April 6, 2021] Severance of Charges [A. T. McKay J.]
AUTHOR’S NOTE: There are many rationalizations for the Crown to attempt to hold a trial on multiple matters for an accused. One is a lack of resources. Where there is overlapping evidence, it makes sense to proceed together. Another is less savoury. Simply trying an accused for multiple things at the same time creates a potent pool of bad character evidence than can infect the decision-making process. In this case, Justice McKay provides a short and useful summary of the law and takes apart the Crown's attempt to try to separate incidences of sexual assault together.
Facts
The count involving MD
[2] There was a small party at A.S.L.’s residence on September 20, 2019. A few of the party guests spent the night at his residence, including MD. MD alleges the following. She was intoxicated, having consumed too much alcohol and cannabis and went to sleep alone on a bed in the basement. She woke up in the early morning hours of September 21 on her knees with A.S.L. having vaginal intercourse with her from behind. She told him to stop and tried to flip over but he prevented her from doing so. She is uncertain of whether she suffered a blackout or passed out. The next thing she recalls is waking up next to A.S.L. in bed. She had only met him on one occasion prior to this party.
The counts involving GR
[4] ... During that interview, she alleged that she had been sexually assaulted by A.S.L. on two occasions between February 1 and June 30 of 2019. Her allegations can be summarized as follows.
[5] She indicated that she and A.S.L. were friends and classmates at school. She was uncertain of the exact time frame for either incident that she described. On one occasion they had been drinking alcohol and they were in the basement at his residence. They were sitting on a couch. A.S.L. pushed her down and crawled on top of her. He began touching her breasts and hips over top of her clothing with his hands. She told him to stop but he continued. She started to loudly say no, telling him to stop. A.S.L. got up and went to the bathroom. That ended the assault.
[6] She described the second incident which occurred at a movie theatre. The two of them attended a scary movie. She described the theatres being “pretty empty” with no one around them. A.S.L. began to cuddle her, which she did not have an issue with. However, he began to touch her breasts over her clothing and he got an erection. She moved his hand away but he continued to touch her breasts over her clothing. He asked her to touch him and placed her hand on his penis over the top of his clothing. She said no and removed her hand. He pulled down the top of his pants and put her hand on his penis more than once, and she kept removing it. He then masturbated.
The Applicable Principles
[7] Trial courts have the discretion to grant severance of multiple accused or multiple counts in an Information. The relevant provisions are set out in section 591 of the Criminal Code. The Crown has a right to exercise discretion in a decision to include separate incidents in one Information. A number of factors generally weigh in favour of trials joining multiple accused or multiple counts, including the desire to use time and resources efficiently, the desire to spare witnesses repeated court attendances, consistency of verdicts and the concept that it is more likely that the full truth will emerge if every alleged participant gives his or her account on one occasion.(See R. v. Crawford (1995), 1995 CanLII 138 (SCC), 96 C.C.C. (3d) 481 (S.C.C.). However, severance can be granted where the court is satisfied that the interests of justice so require.
[8] On an application to sever a multicount Information, the overarching criteria are the interests of justice. In R. v. Last (2009), 2009 SCC 45 (CanLII), 247 C.C.C. (3d) 449 (S.C.C.), the court provided a non-exhaustive list of factors which help capture how the interests of justice may be served in a particular case. Those factors include:
1. General prejudice to the accused;
2. Legal and factual nexus between the counts;
3. Complexity of the evidence;
4. Whether the accused intends to testify on one count but not another;
5. Possibility of inconsistent verdicts;
6. Avoidance of multiplicity of proceedings;
7. Use of similar fact evidence;
8. Length of trial having regard to the evidence to be called; and
9. Potential impact on the accused right tried within a reasonable time.
[9] All of the factors must be considered and weighed cumulatively to determine where the balance lies between the risk of prejudice to the accused and the benefits to the administration of justice. As the factors in favour of a joint trial become less compelling, the degree of possible prejudice required to justify severance decreases.
Analysis:
Prejudice to the Accused
[10] The defence points to the risk of both moral prejudice and reasoning prejudice to an accused when evidence properly admissible on one count is heard with evidence on another count. The risk of moral prejudice relates to the possibility that evidence is taken as proof of bad character. The risk of reasoning prejudice arises from a concern that evidence admissible on one count may be improperly applied to other counts. Those risks are reduced when the trier of fact is a judge sitting alone. However, as noted by the court in R. v. Villeda, 2011 ABCA 85 at para. 18, the risk is not entirely eliminated.
[12] In this case, the risk of prejudice favours severance.
Factual and legal nexus
[13] The defence refers the court to the following passage from R. v. J.C.L., 2012 ONSC 6603, [2012] O.J. No. 5533 at paras. 18-19:
“Similar facts are not the same as a factual nexus. The concept of factual nexus includes inter alia whether there would be substantially overlapping transactions… Nexus connotes connection, bond or link… A factual nexus often refers to a continuity of events, time and means. Where there is a clear factual nexus, the logic of a joint trial is more compelling than where there are multiple sets of events, linked together only by the identity of the person charged and the place where the events occurred.”
[14] The two sets of allegations involve different complainants with incidents occurring in different locations and circumstances. The incident involving MD is separated in time from the incidents involving GR by anywhere from three to nine months. The substantial evidence does not overlap in any significant way. The only common witness is potentially GR, who was present at the party but has no direct knowledge of the allegations related to MD.
[15] The lack of a connection or elements of overlapping transactions favours severance.
Intention of the accused to testify
[20] The defence submits that it is possible that A.S.L. will choose to testify with respect to some counts, but not others. This raises a concern regarding his ability to control his own defence without being hindered by the Crown’s decision to try all counts together. The incident involving MD resulted in an immediate complaint, and physical evidence of bruising and “hickies”. That may raise different tactical considerations than the allegations made by GR. There may be a rationale for A.S.L. to want to testify with respect to some but not all counts.
[21] This factor does not weigh against severance.
The desire to avoid a multiplicity of proceedings and the length of trial
[22] Given the limited factual connection between the counts and lack of overlap in the evidence, the benefits of trying the counts together are limited. Given the minimal overlapping evidence, severance would add little if any time to the total trial time.
[23] These factors do not weigh against severance.
Similar fact evidence
[24] The Crown indicates that it intends to bring an application for similar fact evidence. The defence indicates that the evidence involving the various counts falls well short of the required “high degree of similarity”, and accordingly a similar fact application would not be successful. The defence also points to the decision in R. v. J.C.L. at para. 42where the court indicated: “the mere intention of the Crown to bring a similar fact evidence motion should not in itself be sufficient to tip the balance in favour of a single trial.”
[25] Based upon what I have before me on this application, it is a live issue as to whether the Crown would be successful if it brings a similar fact application. The stated intention of the Crown to bring a similar fact evidence application weighs in favour of having all counts tried jointly but is not determinative.
Prejudice to accused on the right to be tried within a reasonable time
[26] This is a matter where an application under section 11(b) of the Charter alleging undue delay has already been filed and is scheduled to be heard on April 19, 2021. There are currently five days set for trial in June. There is an additional day in May set for pretrial applications which have now been abandoned, leaving a total of six days available for trial. If severance is granted, it is difficult to envision more than six days of trial time in total being required for two trials.
[27] This factor does not weigh against severance.
CONCLUSIONS
[28] There is little to be gained in terms of efficiency by trying these matters together. Indeed, the Crown acknowledges that, if not for the Crown’s intention to bring an application to lead similar fact evidence, separate trials may be appropriate. In my view, there is risk of prejudice to A.S.L. by having all counts joined. In balancing the relevant factors, I find that he has met the burden of establishing that the interests of justice require severance of the counts involving GR from the count involving MD.
R v Beresaw, 2021 ABPC 107
[March 31, 2021] Charter s.8 - Impaired/Over 80: As Soon As Practicable [Judge A. J. Brown]
AUTHOR’S NOTE: The provisions of the Criminal Code of Canada that allow police to force motorists to provide samples of their breath are an exception to general principles that a person cannot be forced to provide evidence against themselves by the police. For this reason, the rules governing this process are enforced strictly in our courts. In this case, Judge Brown held the police to account for a meandering approach to their duties in getting the accused to the breathalyser. Also interesting is that the seriousness of the violation was enhanced by the police attitude towards hands-free driving and failure to use mask during the covid-19 pandemic.
Overview of the Decision
[1] On March 17, 2021, I gave oral reasons for this decision; these are my written reasons.[2] There was no breach of Mr. Beresaw’s section 9 Charter to be free of arbitrary state detention. The stopping of Mr. Beresaw to check on his sobriety was a constitutionally permissible detention, within the ambit of police traffic enforcement duties.[3] However, the breath samples lawfully demanded from him were not taken as soon as practicable and, accordingly, his section 8 Charter right to be free of unreasonable search and seizure was breached.[4] Considering the seriousness of the breach, the effect on Mr. Beresaw and public interest in cases being decided on their merits, I conclude that the certificate setting out the result of Mr. Beresaw’s breath samples is inadmissible.
The Section 8 (Unreasonable Search and Seizure) Argument
[11] A stop to check on driver sobriety is a constitutionally permissible intrusion into a person’s right to be free of arbitrary state detention; but it is not without limits. It is only permitted in service to the greater good of protecting the community from the harm caused by impaired drivers. And because it is an exception to an important right in a free society, the detention must be kept to a minimum; hence, the requirement that the breath samples be taken as soon as practicable.
[12] The most recent amendments to the drinking/driving provisions in the Criminal Code removed one reason for breath samples to be taken as soon as practicable, a reason related to a rebuttable evidentiary presumption; that evidentiary presumption has now been removed from the Code. But the constitutional requirement that the samples be taken as soon as practicable remains. We do not live in a police state; given that there is a constitutionally permissible detention, it must be strictly limited.
[13] The meaning of “as soon as practicable” has been analyzed many times in countless court cases; key points in the analysis include: it does not mean “immediately;” and, not every minute needs to be accounted for. On balance, the delay needs to be reasonable.
[14] One hour and twenty minutes elapsed from the time of Mr. Beresaw’s driving to the time of the first breath sample being provided at a district office that was a 10-minute drive away.
[16] I have concluded that the samples were not taken as soon as practicable. I highlight parts of the timeline that constitute unexplained and improper delay:
First, the earliest that Cst. Reuser could have departed the scene was 10:43 am, when Cst. Sekunda offered to stay and look after the arrangements to tow Mr. Beresaw’s vehicle. From Cst. Sekunda’s offer to Cst. Reuser’s departure from the scene with Mr. Beresaw, a full 25 minutes elapsed.
Even if it was reasonable to use Mr. Beresaw’s apprehension as a training exercise for Cst. Sekunda – the reason given by Cst. Reuser for not leaving at 10:43 am – the backup officers had arrived by 10:54 am; but Some of the wait time before departing the scene is taken up with note-taking; it is also peppered with some boastful telling of a “war story,” specifically, that of Cst. Reuser’s successful catching of Mr. Beresaw.
...
By 11:24 am, Mr. Beresaw is in the holding room and Cst. Reuser moves to the front counter where, for the next eight minutes, he: completes some paperwork; engages in a discussion about which additional charges under the Traffic Safety Act and Gaming, Liquor and Cannabis Act to lay; tells and re-tells the war story of Mr. Beresaw’s apprehension; and, clearly once, possibly twice, is prompted to give Mr. Beresaw access to a lawyer but does not act. The clear prompting comes at 11:26 am from the breath technician officer, who had been available from the time of Cst. Reuser’s arrival at the district office, and asks directly: “Does he want a lawyer?” to which Cst. Reuser answers, “Yeah, he does.” Under crossexamination at trial, Cst. Sekunda acknowledged that he, too, may well have prompted Cst. Reuser to give Mr. Beresaw his lawyer call at 11:24 am, when Cst. Reuser responds to an indiscernible question, “yeah, in a bit.”
[17] I follow the reasoning of my brother Judge Ogle, in the Goss decision (R v Goss 2008 ABPC 10) in finding that note-taking does not need to be done when it was done by Cst. Reuser; it is not the officer’s note-taking that must be done with dispatch; it is the providing access to counsel and taking of breath samples. At the scene, there was an inordinate amount of time evidently devoted to note-taking, especially bearing in mind that the district office was a mere 10-minute drive away. And, on arrival at the office, there was no reason at all to delay a further eight minutes before giving Mr. Beresaw his lawyer call, when the time was given over to nothing more than completing routine paperwork, debating which ticket offences should be charged and boastful chatter about Mr. Beresaw’s apprehension.
Section 24(2) Analysis
Seriousness of the Breach
[20] The breach is extremely serious. In reaching this conclusion, I consider what was aptly described by Defence Counsel as Cst. Reuser’s cavalier attitude to his duties while dealing with Mr. Beresaw:
In the midst of a pandemic, Cst. Reuser was not wearing a mask while in almost continuous close contact with Mr. Beresaw; in fact, not one of the officers involved wore a mask.
...
During the transport to the district office, Cst. Reuser removed both hands from the steering wheel, immediately after passing a 70 kmh speed limit sign, to type for an alarming 36 seconds on the on-board computer keyboard, apparently relying on his knees to steer the van. He repeated this dangerous behaviour for an additional four seconds, following a stop at a red light.
[22] Cst. Reuser is an experienced officer; he should know better; it was a serious breach and is not saved by reliance on good faith.
The Impact of the Breach on Mr. Beresaw’s Rights
[23] The second factor when evaluating admissibility is the effect on Mr. Beresaw’s Charter protected rights. While the taking of breath samples is far less intrusive than the taking of blood samples, it is still an extraordinary power of the state to compel a person to give evidence against himself. In the context of Cst. Reuser’s dealing with Mr. Beresaw, on which I have just commented, the impact of the failure to take Mr. Beresaw’s samples as soon as practicable favours exclusion of the evidence.
Conclusion
[25] Therefore, I conclude that the certificate is inadmissible and I acquit Mr. Beresaw of the offence of driving at or over the legal limit.
R v Klimowicz, 2021 ONSC 2589
[April 7, 2021] Mischief [Parfett J.]
AUTHOR’S NOTE: Can you commit mischief even though you destroy no property and do not interfere with anyone's enjoyment of their property through your attendance? Here, after making the mistake of particularizing the offence of mischief within a break and enter count, the Crown was forced to get creative with their mischief arguments. This helps to limit the offence of mischief for the future. The complainant's hurt feelings after the fact, a potential breach of bio-security for his mink farm (in the absence of actual harm), and publication of a video on the internet depicting his mink farm were all insufficient to establish that offence.
Background & Evidence
[1] The accused, Malcolm Klimowicz, is charged with breaking and entering a fur bearing animal pen located in Frontenac Township with intent to commit the indictable offence of mischief, contrary to s. 348(1)(a) of the Criminal Code.
[2] The accused is an animal rights activist. He is involved in attempting to bring attention to the circumstances in which domestic mink live with the hope that he can persuade the Canadian public to support his efforts to ban the mink farming industry.
[3] The complainant is a mink farmer. He owns a farm in Frontenac Township, north of Kingston and he farms mink. His family has farmed mink for three generations.
[4] The evidence in this case is largely uncontradicted.
[5] The accused stated that he went to the complainant’s farm on August 1, 2017 in the early hours of the morning. He entered on the property and went into the sheds where the mink are kept. He took videos of the mink in the sheds. After taking the video, he drafted a complaint to the OSPCA. He had assistance in drafting the complaint that was sent on January 26, 2018. 2 He also posted the video online. As far as he was aware, the OSPCA never acted on his complaint.
[6] The complainant did not discover the fact the accused had been on the property until the video was posted on YouTube and picked up by the media. He indicated that the accused did not have permission to come on his property, nor did he have permission to film the property. He agreed in cross-examination that the reason he did not know that the accused had been on his property was because there was no damage, nothing was different the next day and no animal had been harmed or released. However, the complainant noted there is always the risk of disease and for that reason he does not want people trespassing on his property.
[8] As a result of the accused posting the film he took on YouTube, a news reports came out about the video. The complainant said he was subject to disturbing emails where he was asked to close the farm, called an animal killer and told he should be ashamed of himself. He has received similar emails and comments as a result of the publicity this trial has received. The complainant stated he was concerned enough about security that he installed video surveillance and hires guards on a seasonal basis. There is a cost associated with these security measures. In cross-examination, the complainant agreed that the communications were not threatening; just unpleasant.
[9] The accused testified that while he saw evidence at other farms of animals with wounds and other serious health conditions, he did not see anything of that nature at the complainant’s farm.
Mischief
[14] The real issue in this case is whether the Crown has proven beyond a reasonable doubt that Mr. Klimowicz broke into the property intending to commit mischief. The Crown particularized the indictment as follows:
That Malcolm Henryk Klimowicz did break and enter a certain place to wit: a fur bearing animal pen enclosure…..with intent to commit a indictable offence therein.
[15] At the outset of the trial, the Crown was asked to provide further particulars in relation to the indictable offence it was alleging the accused intended to commit. The Crown indicated that it was the offence of mischief. Consequently, the Crown cannot rely on the presumption in s. 348(2) and instead it must prove mischief beyond a reasonable doubt.3
[16] In its submissions, the Crown outlined various ways it suggested Mr. Klimowicz committed mischief. The Crown suggested that mischief was committed because;
- Mr. Freeman felt an invasion of privacy and security;
- Personal details concerning Mr. Freeman were posted without his permission;
- Mr. Klimowicz surreptitiously and without permission, videotaped the mink barns; and
- Mr. Klimowicz published personal information of Mr. Freeman on the internet.
[17] The Crown also argues that there was potential mischief in relation to the breach of biosecurity and disturbance of the animals. The evidence at this trial was that no harm befell the mink as a result of Mr. Klimowicz entering the barns. He took measures to ensure there would be no breach of bio-security and there was none. In my view, a harm that might have occurred, but did not, cannot constitute mischief.
[18] I also agree with Defence counsel that Mr. Freeman’s feelings when he found out, well after the fact, that his property had been entered do not constitute an interference with the lawful use of his property. As noted in R. v. Bevo,
Wholly abstract notions or feelings of privacy and security and interference with theoretical rights to control access to property, even a dwelling house, cannot be transformed into criminal conduct.[4]
[19] Finally, in relation to the information that Mr. Klimowicz published on the internet, that information was already publicly available and that also does not constitute mischief.
[20] A lot of evidence was led at trial concerning whether Mr. Freeman complied with the Code of Practice in relation to mink farming and/or the requirements of the Ontario Society for the Protection of Cruelty to Animals Act.[5] ...
[21] In any event, as was noted by the Crown, where other sanctions for unlawful use are available, such as a complaint to the OSPCA, breaking and entering is not a reasonable alternative.[6] Moreover, I agree with Crown counsel, that Mr. Klimowicz could not have known when he entered on the property that its use was unlawful (assuming it was). He may have suspected that was the situation, but that expectation is not enough to justify the unlawful entry.
[23] Defence counsel has argued that Mr. Klimowicz’s intent in entering onto Mr. Freeman’s farm was to publicize the conditions in which mink are farmed. In other words, he did not intend to do anything that could constitute mischief.
[24] In my view, Defence counsel is mixing up motive with intent. Mr. Klimowicz’ motive in entering on the property was clearly to publicize the conditions he found there. However, that was not his intent. His intent as he clearly stated in his testimony was to film the conditions in which the mink were kept.
[25] The key issue in this case is whether the videotaping of the mink constitutes mischief. The Crown pointed to the case of R. v. Manoux as support for the position that surreptitious videotaping can constitute mischief.[7] It is important to note that in Manoux, the landlord was surreptitiously videotaping his tenants.
[26] In Manoux, the fact the property was a private residence was critical to the trial judge’s analysis. She noted the high level of privacy expected in one’s home. The reasonable expectation of privacy is informed by the place and biographical details available from entering the place.[8] In present case, the sheds are commercial properties and therefore, there is a lesser expectation of privacy.
[27] In my view, in the circumstances of this case, the videotaping of the mink barns does not constitute mischief. There was no interference with the conduct of any activity in the barn. There is no evidence that the mink were disturbed by what occurred. There is no evidence that the mink suffered any harm. Indeed, the evidence indicates that Mr. Freeman was completely unaware that anyone had entered on his property until he saw the video through the media.
[28] Consequently, I find the Crown has failed to prove that Mr. Klimowicz entered Mr. Freeman’s property with the intent to commit mischief and Mr. Klimowicz will be acquitted of that charge.
