R. v. Last (G.E.), (2009) 394 N.R. 78 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Charron and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 15, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 394 N.R. 78 (SCC);2009 SCC 45

R. v. Last (G.E.) (2009), 394 N.R. 78 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.R. TBEd. OC.031

Gregory Ernest Last (appellant) v. Her Majesty The Queen (respondent)

(32809; 2009 SCC 45; 2009 CSC 45)

Indexed As: R. v. Last (G.E.)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Charron and Cromwell, JJ.

October 15, 2009.

Summary:

The accused was charged in one indictment with two counts of sexual assault and two counts of breach of an undertaking. The sexual assaults were committed one month apart in the same city, but involved two different complainants. The accused applied for severance, seeking a separate trial for each sexual assault. The trial judge dismissed the application and tried all counts together. The trial judge found a nexus in time and place and was satisfied that proper jury instructions would preclude any prejudice to the accused. The accused was convicted by a jury and, after a dangerous offender application was dismissed, was sentenced to a total of 22.5 years' imprisonment. The accused appealed against conviction and sentence, submitting, inter alia, that the trial judge erred in declining to sever the two sexual assault counts.

The Ontario Court of Appeal, in a judgment reported 2008 ONCA 593, dismissed the appeal. The accused appealed.

The Supreme Court of Canada allowed the appeal, set aside the convictions, and ordered separate trials for the counts respecting each complainant. The trial judge "acted unjudicially in his weighing of the relevant factors in the severance application". In the interests of justice, severance should have been granted.

Criminal Law - Topic 4737.1

Procedure - Information or indictment, charge or count - Indictable offences - Severing counts in an indictment - An indictment charged, inter alia, two counts of sexual assault - The assaults were a month apart, in the same city, involving different complainants - A successful similar fact application was unlikely - The trial judge refused to sever the counts, because there was a nexus in time and place, prejudice to the accused was unlikely with proper limiting instructions to the jury, the case was not complex, the accused's stated intention to possibly testify on one count and not the other was not objectively sustainable, and the possibility of inconsistent verdicts did not "loom large" - The Supreme Court of Canada held that the trial judge acted unjudicially in weighing the relevant factors - The interests of justice required separate trials for each sexual assault count - The court stated that "although [the accused's] intention to testify on one set of counts and not the other was objectively justifiable, it did not constitute ... a significant factor in view of the likelihood that his decision whether or not to testify would be the same in relation to both sets of counts" - The nexus between the two counts was "extremely thin" and was entitled to little weight in favour of a joint trial - The assaults were not meaningfully connected in any way - The two counts involved different defences (consent in one and identification in the other) - There was no truth-seeking interest in trying the counts together - There was a danger of credibility cross-pollination and a significant risk of propensity reasoning, as the jury would wonder why two complainants who did not know each other would independently accuse the accused of sexual assault - The gains in judicial economy normally achieved from avoiding multiple proceedings was absent - Where a proper balancing of all of the facts required separate trials in the interests of justice, a joint trial should not be ordered simply because a proper limiting instruction to the jury could eliminate the prejudice to the accused.

Criminal Law - Topic 4737.1

Procedure - Information or indictment, charge or count - Indictable offences - Severing counts in an indictment - The Supreme Court of Canada referred to the following non-exhaustive list of factors to be considered in determining whether the interests of justice required severance of multiple counts in an indictment: "the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co-accused persons" - See paragraph 18.

Criminal Law - Topic 4737.1

Procedure - Information or indictment, charge or count - Indictable offences - Severing counts in an indictment - One of the factors to be considered in determining whether to sever two counts in an indictment was the accused's stated intention to testify on one count, but not the other - The Supreme Court of Canada stated that "the accused's intention should be objectively justifiable. ... The accused's expression should have both a subjective and an objective component. However, while a formulaic expression of a subjective intention is not sufficient in and of itself to discharge the accused's burden to have the counts severed, the trial judge should not substitute his or her own view for that of the accused and determine that the accused should testify or not. Rather, the trial judge must simply satisfy him or herself that the circumstances objectively establish a rationale for testifying on some counts but not on others. The burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention. The information could consist of the type of potential defences open to the accused or the nature of his testimony. ... However, the accused is not bound by his stated intention; he remains free to control his defence, as the case unfolds, in a manner he deems appropriate. While an accused's provisional intention with respect to testifying is certainly a consideration which should be given significant weight, it is but one factor to be balanced with all the others. An accused's stated and objectively justifiable intention to testify on some but not all counts is not necessarily determinative of a severance application." - See paragraphs 26 to 27.

Cases Noticed:

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 14].

R. v. Kestenberg (1959), 126 C.C.C. 387 (Ont. C.A.), leave to appeal denied [1960] S.C.R. x, refd to. [para. 15].

R. v. Grondkowski (1946), 31 Cr. App. Rep. 116 (C.C.A.), refd to. [para. 15].

R. v. Rose (V.) (1997), 100 O.A.C. 67 (C.A.), refd to. [para. 15].

R. v. L.E. et al. (1994), 75 O.A.C. 244; 94 C.C.C.(3d) 228 (C.A.), refd to. [para. 18].

R. v. Cross (R.) (1996), 112 C.C.C.(3d) 410 (Que. C.A.), refd to. [para. 18].

R. v. Cuthbert (D.A.) (1996), 72 B.C.A.C. 227; 119 W.A.C. 227; 106 C.C.C.(3d) 28 (C.A.), affd. [1997] 1 S.C.R. 8; 208 N.R. 303; 86 B.C.A.C. 81; 142 W.A.C. 81; 112 C.C.C.(3d) 96, refd to. [para. 18].

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, refd to. [para. 33].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 34].

R. v. Jaw (S.G.) (2009), 393 N.R. 246; 464 A.R. 149; 467 W.A.C. 149; 2009 SCC 42, refd to. [para. 48].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 591 [para. 13].

Authors and Works Noticed:

Watt's Manual of Criminal Evidence (2009), § 34.02 [para. 34].

Counsel:

Clayton C. Ruby and Gerald J. Chan, for the appellant;

Lisa Joyal, for the respondent.

Solicitors of Record:

Ruby and Shiller, Toronto, Ontario, for the appellant;

Attorney General of Ontario, Toronto, Ontario, for the respondent.

This appeal was heard on March 27, 2009, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Charron and  Cromwell, JJ., of the Supreme Court of Canada.

On October 15, 2009, Deschamps, J., delivered the following judgment in both official languages for the Court.