R. v. J.C.B., (2011) 382 Sask.R. 267 (QB)

• Judge: Gabrielson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 12, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 382 Sask.R. 267 (QB);2011 SKQB 333

R. v. J.C.B. (2011), 382 Sask.R. 267 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. SE.063

Her Majesty the Queen v. J.C.B.

(2010 Q.B.N.J. No. 18; 2011 SKQB 333)

Indexed As: R. v. J.C.B.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Gabrielson, J.

September 12, 2011.

Summary:

The accused, J.C.B., was charged with six counts of sexual assault. There were two complainants, 14 and 13 at the time of the incidents, and now 17 and 16. The accused applied to sever counts 1 to 3 on the indictment (complainant A) from counts 4 to 6 (complainant B). As part of its opposition to the application to sever, the Crown applied to allow similar fact evidence to be called, whereby the evidence of each complainant could be used to determine the issues in all counts.

The Saskatchewan Court of Queen's Bench allowed the accused's application to sever, and dismissed the Crown's application for the introduction of similar fact evidence.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4737.1

Procedure - Information or indictment - Charge or count - Indictable offences - Severing counts in an indictment - The accused was charged with six counts of sexual assault -There were two complainants - The accused applied to sever counts 1 to 3 on the indictment (complainant A) from counts 4 to 6 (complainant B) - The Saskatchewan Court of Queen's Bench concluded that the accused had established that the severance was necessary in the interests of justice - First, the risk of general prejudice to the accused favoured severance - There was a risk of both credibility bolstering and prohibited propensity reasoning - The fact that it was a trial by way of judge alone, did not eliminate that risk - Second, the nexus between the incidents involving the two complainants was not sufficient to bear any weight in favour of a joint trial - Third, there was no undue complexity to the case and a severance would not be necessary on that basis - Fourth, the accused met the subjective and the objective requirements in that there was an objective rationale for his expressed intention to testify with respect to the allegations pertaining to complainant A, but not complainant B - Fifth, the merits of the desire to avoid a multiplicity of proceedings were balanced - Sixth, based on the court's ruling regarding the Crown's similar fact evidence application, the use of similar fact evidence was not a factor - Seventh, if severance was granted, both trials could likely be completed in a similar time frame - See paragraphs 7 to 34.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - [See Criminal Law - Topic 5214 ].

Criminal Law - Topic 5214

Evidence and witnesses - Admissibility and relevancy - Similar acts - Where indictment includes several counts - The accused was charged with six counts of sexual assault - He was the non-biological uncle of complainant A, and the non-biological brother of complainant B - The accused's position was that the alleged assaults did not occur - The Crown opposed the accused's application to sever and applied to allow similar fact evidence to the actus reus of the offence, i.e.,whether the accused had the propensity to commit sexual assaults upon minor members of his family - The Saskatchewan Court of Queen's Bench dismissed the Crown's application - The similarities between the alleged assaults were not so probative to the actus reus so as to outweigh the spectre of moral or reasoning prejudice which could give rise to a wrongful conviction if misapplied propensity evidence was considered - There was evidence that raised the potential for innocent collusion - There was no evidence of "grooming" concerning complainant A - The evidence of "grooming" concerning complainant B was "thin at best" - The accused was not in a position of trust - While there was some similarity in respect to the relationship between the complainants and the accused, the area where the alleged assaults took place and their timing, there was not a strong degree of similarity in the alleged acts themselves - The probative value of the similar facts was slight - The admission of similar fact evidence in this case had the potential to create real moral prejudice and significant reasoning prejudice, notwithstanding that the trial was by a judge alone - See paragraphs 35 to 64.

Criminal Law - Topic 5214.4

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove propensity - [See Criminal Law - Topic 5214 ].

Evidence - Topic 1256

Relevant facts - Relevance and materiality - Similar acts - To prove criminal conduct - [See Criminal Law - Topic 5214 ].

Cases Noticed:

R. v. Last (G.E.), [2009] 3 S.C.R. 146; 394 N.R. 78; 255 O.A.C. 334; 2009 SCC 45, appld. [para. 5].

R. v. J.M., [2011] O.T.C. Uned. 3924; 2011 ONSC 3924, consd. [para. 9].

R. v. Villeda (G.M.) (2011), 502 A.R. 83; 517 W.A.C. 83; 269 C.C.C.(3d) 394; 2011 ABCA 85, consd. [para. 11].

R. v. Ticknovich (N.M.) (2003), 353 A.R. 8; 2003 ABQB 597, refd to. [para. 14].

R. v. D.G.M. (2006), 288 Sask.R. 226; 2006 SKQB 296, consd. [para. 19].

R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 2002 SCC 58, consd. [para. 36].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, consd. [para. 36].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, consd. [para. 36].

R. v. Dueck (N.J.) (2011), 371 Sask.R. 134; 518 W.A.C. 134; 2011 SKCA 45, refd to. [para. 39].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 44].

R. v. M.B., [2011] O.A.C. Uned. 49; 267 C.C.C.(3d) 72; 2011 ONCA 76, consd. [para. 46].

R. v. A.G. (2004), 191 O.A.C. 386; 190 C.C.C.(3d) 508 (C.A.), refd to. [para. 48].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 591(3) [para. 4].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed.) (2011 Looseleaf Update), p. 10-3, para. 10:10 [para. 38].

Counsel:

Buffy L. Rodgers, for the Crown;

Kevin B. Lieslar, for the accused.

These applications were heard before Gabrielson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following fiat, dated September 12, 2011.