R. v. Mousseau (T.M.), 2002 ABQB 191

• Judge: Moen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 08, 2002
• Citations: 2002 ABQB 191;(2002), 309 A.R. 255 (QB)

R. v. Mousseau (T.M.) (2002), 309 A.R. 255 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. FE.156

Her Majesty the Queen v. Terrance McIntosh Mousseau (accused)

(Action No. 006135131Q2; 2002 ABQB 191)

Indexed As: R. v. Mousseau (T.M.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moen, J.

February 19, 2002.

Summary:

An accused was charged with sexual assault, robbery, weapon offences and harassment arising from six incidents involving five complainants. The accused applied to sever the charges with respect to each of the complainants so that each proceeded to a separate trial. The accused also applied to sever the criminal harassment count respecting the complainant C.H. from the other counts respecting C.H.

The Alberta Court of Queen's Bench severed the counts in relation to one complainant (not C.H.). The court otherwise dismissed the application.

Criminal Law - Topic 4737.1

Procedure - Information or indictment - Charge or count - Indictable offences - Severing counts in an indictment - An accused was charged with sexual assault, robbery, weapon offences and harassment - The Alberta Court of Queen's Bench severed one count involving a 12 year old complainant where the similar fact evidence was morally repugnant and would be highly prejudicial on the assaults involving the other four adult complainants - There were also several differences between that assault and the other assaults - See paragraphs 66 to 68.

Criminal Law - Topic 4737.1

Procedure - Information or indictment - Charge or count - Indictable offences - Severing counts in an indictment - An accused was charged with sexual assault, robbery, weapon offences and harassment - The Alberta Court of Queen's Bench refused to sever the counts relating to four of the five complainants - The accused had not demonstrated a real intention of testifying on the harassment charge by providing a possible defence and had given no grounds for testifying on that charge and not others - There was a legal and factual nexus among the counts - There was a "narrative framework" which was only partly based on similar fact evidence - The evidence gained its probative value and underpinnings from the framework - The possibility that the various incidents might not constitute similar fact evidence was not grounds for severance - Evidence might be admissible as similar fact evidence to provide identity given the cumulative effect of the number of significant similarities - A jury warning would overcome any prejudice caused by a multi-count indictment - There was a public interest in avoiding the further delay that would result from severance - See paragraphs 12 to 69.

Cases Noticed:

R. v. A.J., 2001 ABQB 492 (Q.B.), dist. [para. 14].

R. v. L.W., [2000] N.W.T.J. No. 65 (S.C.), dist. [para. 25].

R. v. T.M. (1998), 63 O.T.C. 227 (Gen. Div), refd to. [para. 25].

R. v. M.L. et al. (1998), 215 A.R. 295 (Q.B), refd to. [para. 25].

R. v. Taylor (G.) (1996), 189 A.R. 69 (Q.B), refd to. [para. 26].

R. v. McNamara (No. 1) - see R. v. Canadian Dredge & Dock Co., Marine Industries Ltd., Porter (J.P.) Co. and Richelieu Dredging Corp.

R. v. Canadian Dredge & Dock Co., Marine Industries Ltd., Porter (J.P.) Co. and Richelieu Dredging Corp. (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 27].

R. v. Papequash (1987), 61 Sask.R. 222 (C.A.), refd to. [para. 32].

R. v. Welyki (1975), 26 C.C.C.(2d) 484 (Alta. T.D.), refd to. [para. 32].

R. v. McClory (1981), 60 C.C.C.(2d) 91 (Ont. Prov. Ct.), refd to. [para. 32].

R. v. Cross (R.) (1996), 112 C.C.C.(3d) 410 (Que. C.A.), leave to appeal refused (1997), 215 N.R. 160 (S.C.C.), refd to. [para. 32].

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. 37].

R. v. C.D.R. (1995), 178 A.R. 94; 110 W.A.C. 94 (C.A.), dist. [para. 38].

R. v. D.V.N., [1998] A.J. No. 1565 (Q.B.), refd to. [para. 42].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81; 55 C.C.C.(3d) 1, refd to. [para. 53].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to. [para. 57].

R. v. E.J.S., [1994] O.J. No. 435 (C.J.), refd to. [para. 58].

Authors and Works Noticed:

Ewaschuk, E.G., Criminal Pleadings and Practice in Canada (2nd Ed. 2001) (Looseleaf), pp. 9-67, 9-68 [para. 14].

Salhany, R.E., Canadian Criminal Procedure (6th Ed. 1994), generally [para. 55].

Counsel:

Susan Hughson, for the Crown;

Arnold Piragoff, Q.C., for the accused.

Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, heard this application on February 8, 2002, and delivered the following memorandum of decision on February 19, 2002.