


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Dorsey, 2012
    ONCA 185

DATE:  20120323

DOCKET:  C50631

OConnor A.C.J.O., MacPherson J.A. and OConnor
    J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Dorsey

Appellant

Brian Snell and Zachary Kerbel, for the appellant

Deborah Krick, for the respondent

Heard:  January 25, 2012

On appeal from the convictions entered on November 1, 2007
    by Justice Gloria Epstein of the Superior Court of Justice, sitting with a
    jury.

By the Court:

INTRODUCTION

[1]

On November 1, 2007, the appellant, Christopher Dorsey, was convicted by
    a jury of sexual assault, sexual assault with a weapon, sexual assault
    causing bodily harm and unlawful confinement.  These offences involved three
    different complainants, L.B., M.B. and M.N.  He was acquitted on similar counts
    against two other complainants, C.B. and B.M.  Counts relating to a sixth
    complainant, D.T., were severed.  The appellant was declared a long-term
    offender and given a three year and four month prison sentence to be followed
    by 10 years of supervision.

[2]

He appeals his convictions on two grounds, arguing that:

a)

the trial judge erred
    in her instructions to the jury on its use of similar fact evidence, and

b)

the trial judge erred
    by admitting the evidence of a complainant to be put to the jury as similar
    fact evidence after allowing the counts relating to that complainant to be
    severed.

[3]

A third ground, that the trial judge erred respecting a
Vetrovec
instruction, was not argued and therefore was not considered by this court.

[4]

For the reasons that follow, we would allow the appeal and order a new
    trial.

OVERVIEW

[5]

All six complainants, who did not know each other, were crack cocaine users,
    prostitutes or both.  The appellant was a heavy crack cocaine user.  All the
    complainants gave evidence of attacks allegedly by the appellant that were the
    subject of the similar fact application.

[6]

Between March 2003 and August 2004, the appellant met with each of the
    complainants either at the Newsboys Boxing Gym or in his apartment, and had
    sexual relations with them in return for crack cocaine.  However, according to
    all of the complainants, after often long periods of smoking crack cocaine and
    engaging in various sex acts, the appellants demeanour changed radically.
    While demanding further sex with them, he would become angry and threatening
    and then physically abusive.  The incidents usually lasted several hours and
    ended when the women eventually managed to escape, or when he threw them out. 
    On one occasion, with the complainant whose counts were severed, he allegedly
    locked her in the gym for several hours while he left the premises to find more
    drugs.

THE FACTS

[7]

A summary of the alleged attacks on the six complainants is as follows.

[8]

In April, 2003, L.B. met the appellant when he was living at the Avenue
    Road Hotel on Pears Avenue in Toronto. She went to his apartment and smoked
    crack cocaine and then agreed to allow him to perform oral sex on her. He
    became argumentative and demanded that L.B. perform oral sex on him.  He then
    brandished a knife, held it to L.B.s neck, and threatened to kill her and
    throw her off the balcony.  He would not let her leave the apartment.  He
    forced her to continue giving him oral sex.  After leaving the apartment, L.B.
    contacted a rape crisis centre.  She reported her experience to the police on
    June 7, 2004.  The appellant was found guilty of sexual assault of L.B. with a
    weapon.

[9]

In July of 2003, M.B. met the appellant at the Avenue Road Hotel. They
    went to his room to smoke crack cocaine.  She asked how much she owed him and
    he told her he was not in the business of selling crack.  He demanded that she
    give him oral sex and threatened to break her jaw.  She performed oral sex for
    a lengthy period of time.  He then sodomized her.  He would not let her leave
    the apartment. She escaped into the hallway naked and ran to her friends
    apartment.  M.B. contacted the police after hearing about the appellant in the
    media.  She gave a statement to police on July 18, 2004.  The appellant was
    found guilty of sexual assault of M.B.

[10]

In
    March 2004, M.N. went to the Newsboys Boxing Gym at Greenwood Avenue and Queen
    Street to buy drugs.  She met the appellant there, did drugs and stayed there
    alone with him.  After the drugs ran out, he began to touch her and pulled her into
    the bedroom portion of the gym.  He grabbed her by the hair.  He digitally
    penetrated her and grabbed her breasts.  He told her that he had a gun and that
    he would shoot her if she moved.  He left the building and M.N. remained locked
    in the gym.  When he returned, the appellant dragged her up the stairs and
    pushed her out the door onto the street.  She provided a statement on August
    11, 2004.  The appellant was found guilty of sexual assault causing bodily harm
    and unlawful confinement of M.N.

[11]

During
    the summer of 2003, C.B. was working as a prostitute.  She met the appellant
    and accompanied him to the Avenue Road Hotel to smoke crack cocaine.  The appellant
    allegedly ordered C.B. to get on her knees.  He pulled down his pants and
    forced his penis into her mouth.  He punched her in the face and on the side of
    the head.  He threatened her with a knife. She ran away.  Several months later
    C.B. met the appellant again.  A similar incident allegedly occurred; he pulled
    his pants down and put his penis in her face.  He slapped her.  She yelled and
    eventually left.  C.B. contacted the police after reading an article in a
    newspaper about the appellant.  She provided a statement to the police on June
    10, 2004.  The appellant was found not guilty of the two counts related to C.B.

[12]

On
    May 25, 2004, B.M. was allegedly approached by a male about a date with the appellant.
     B.M. had been with the appellant before and knew that he wanted oral sex in
    exchange for crack. B.M. went to the Newsboys Boxing Gym.  She alleged they
    smoked crack together and she performed oral sex on him. The appellant became
    angry and violent.  He grabbed her by the hair and held her head, forcing her
    to continue to perform oral sex.  He threw her on the bed, ripped her pants off
    and forced himself into her vagina.  Over the next several days, he allegedly held
    her there and repeatedly forced her to have sex with him.  He threatened to
    skin her alive and slice her up.  B.M. managed to escape when a man came to the
    door.  She ran to her friends house.  She told her friends what had happened
    and they took her to the hospital.  The hospital contacted the police and B.M.
    gave a statement to them that same night.  The appellant was found not guilty
    on the two counts relating to B.M.

[13]

D.T.
    allegedly went to the gym with two women in April 2004.  They left and D.T.
    stayed to smoke crack with the appellant.  She alleged that he became angry and
    left the gym, locking her in it.  When he returned, they both smoked more
    drugs, and then he demanded that she remove her clothes.  She complied out of
    fear.  He then began performing oral sex on her.  When he was finished he left
    and locked her in the basement again.  She called her husband using her cell
    phone.  Her husband called the police.  The Fire Department rescued D.T. from
    the gym and took her to the hospital.  The appellant was arrested that same
    evening just outside of the boxing club.  The four counts relating to D.T. were
    severed from this trial.

The Similar Fact Application/Collusion Issue

[14]

The
    granting of the similar fact application and the trial judges instruction as
    to how the jury could use the evidence was important to the outcome of the
    trial.  The issue of possible collusion between complainants in a sexual
    assault case is often a key concern of a trial judge hearing a similar fact
    application.  In this case the appellant raised the spectre of inadvertent or unintentional
    collusion.

Reasons
    of the Trial Judge

[15]

The
    trial judge granted the similar fact application, citing the criteria for admission
    as set out in

R. v. Handy
, [2002] 2 S.C.R. 908.  She undertook
    a careful analysis of the factors to be considered when assessing the probative
    value of the evidence and both the moral and reasoning prejudicial effects of
    it.  She correctly noted that a high degree of probative value is required for
    admission.  She then considered the possibility of collusion.  At paras. 63
    through 67 of her Ruling #6, allowing the admission of the similar fact
    evidence, she said:

The defence is responsible to show that there is an air of
    reality to the claim of collusion.  It is then up to the Crown to prove on a
    balance of probabilities that there was no collusion.
Mere opportunity and
    motive is not enough to taint the evidence.  See: Shearing, supra, para. 44.

Ms. Morrow did not, either in her oral or written submissions
    seriously press the possibility of collusion other than to argue that media
    reports concerning Mr. Dorsey provided the various witnesses with an
    opportunity to concoct.

The Crown contends that there is no air of reality to collusion
    among the complainants.  All six witnesses were unknown to each other, four of
    whom reported after seeing news coverage.  The complainants have never met nor
    know the details of the events others have described.

The Crown further argues that viewing media coverage does not
    fall within the concept of collusion as collusion is based on evidence that the
    witnesses actually communicated with each other with a view to fabricating the
    evidence.  I disagree.
Handy
makes it clear (at para. 111) that the
    issue is concoction or collaboration.  The opportunity to concoct can be based
    on media coverage.  See also:
R. v. Hughes
,
1998 Carswell BC
    1747.

However, based on the evidence about the nature and content
    of the media reports and the testimony of the witnesses who said they were
    aware of them, I am not persuaded there is any air of reality to any claim of
    collusion.  I say this due to the limited nature of the information contained
    in the reports and the vagueness of the evidence about the witnesses awareness
    of the reports, particularly the timing of the awareness in relation to when
    the various alleged assaults were reported to the media
.
[Emphasis
    added.]

[16]

After
    the appellant raised the possibility of collusion in her closing submissions to
    the jury, the trial judge told the jurors, both shortly after defence counsel
    had completed her address and the next day in her charge to the jury, that they
    were not to consider the possibility of collusion and that it should not affect
    their assessment of the similar fact evidence.

[17]

After
    defence counsels address, the trial judge said:

You will recall the detailed submissions in which defence
    counsel pointed out that Ms. [B] was the last of the witnesses who testified at
    this trial to complain to police, and that her report to the police included
    many elements that were similar to those elements contained in the reports of
    the other women.

This summary ended with a statement to the effect that you
    should be wary of an account that may be, and I quote from the submissions,
    peppered with easily accessible information.

This easily accessible information, according to the
    submissions of defence counsel, came from media reports and/or the
    communication network within the drug subculture.

Members of the jury, I wish to make it clear to you there
    is no evidence before you to support the submissions in this respect, and that
    you should disregard entirely any suggestion that the evidence of M.B. or the
    evidence of any other complainant should be discounted, due to the possibility
    that the evidence may have been affected by the media reports or through
    communication with others in the drug subculture.

I am giving you these instructions primarily with reference to
    M.B.s evidence, because the collusion submissions were advanced very strongly
    in respect of the allegations she has made, but these instructions apply to any
    other complainant concerning whom that argument was advanced.  [Emphasis
    added.]

[18]

In
    her charge to the jury, the trial judge said:

Based on the test that the Supreme Court of Canada has
    established for the existence of collusion or concoction, I instruct you  and
    I said this to you yesterday  that
there is no evidence of collusion or
    concoction in this case that should concern you in assessing what import, if
    any, you place on any similarities you find there to be in the descriptions of
    events that the women have provided to you.
[Emphasis added.]

Appellants
    Position

[19]

In
    her closing address to the jury, defence counsel made it clear that she was not
    suggesting there was evidence of the complainants actively talking to each
    other about their experiences.  She did not argue the women directly
    collaborated or colluded amongst themselves to coordinate their stories.  She
    characterized what might have happened as collusion on a different level where
    we talk about the amount of information that was available to the women.  The
    type of collusion that may have arisen in this case was the possibility that
    the complainants, in sharing their experiences with others, after having heard
    rumours on the street and having seen and read television and newspaper reports
    about the appellant allegedly preying on women, intentionally or inadvertently
    modified or exaggerated their testimony to make it more convincing.

[20]

The
    defence pointed out that there had been a police press conference followed by television
    and print press coverage of some of the alleged sexual assaults.  Some of the
    particulars of the assaults were made public.  For example, a
Toronto Sun
article alleged the appellant locks up sex-trade workers and sexually assaults
    them and that one woman was able to call police by cell phone when she was
    left alone and that the appellant allegedly contacts women through a third
    party, invites them to a meeting, then things turn bad and the women are forced
    to perform sex acts.  L.B., one of the complainants with respect to whom a
    conviction was registered, said she heard on the street that a lot of women
    who did not come forward, were assaulted by the appellant.  M.N. said she had
    heard stories on the street about various things that may have happened to
    other women.  She also said that he has done this to many people  lots of
    people have told me.

[21]

At
    trial, the defence argued that the evidence from the complainants gave at least
    an air of reality to the form of collusion that could have occurred.  Thus, the
    jurors should have been instructed that they could consider the possibility
    that the womens evidence was not a product only of their independent memories
    but that it could have been tainted by other sources.  The defence argued that
    their memories could have been influenced by their drug addictions and their
    lifestyles.  The jury should have been instructed on the possibility that their
    recollections may have been tainted by news reports, rumours and gossip on the
    street and within the drug culture.

[22]

In
    this appeal, the appellant argues that the trial judges failure to leave the
    possibility of inadvertent collusion with the jury was an error.  The jury
    should have had the opportunity to consider and weigh collusion as a factor. 
    This omission had the effect of depriving the appellant of a fair trial.

Respondents
    Position

[23]

The
    Crown argued at trial that there was no air of reality to any claim of
    collusion because the claimants neither knew each other, nor did they know the
    details of the alleged assaults others had experienced.  Further, because D.T.,
    the complainant whose counts were severed, had been rescued by police in the appellants
    boxing gym and because she had immediately given a statement to the police,
    there was no opportunity for her evidence to have been tainted by press reports
    or street gossip.

[24]

The
    respondent argues that the significant similarities between and among the womens
    evidence, given that they did not know each other and could not have colluded
    with each other, could not be explained by coincidence.  Therefore, their
    evidence should be considered reliable.

The Law

[25]

In
Handy
,
supra
, Binnie J., at paras. 110-112, sets out the
    principles governing collusion and potential collusion in the context of a
    similar fact application:

Collusion is a factor, yes, but more than that it is a
crucial
    factor because the existence of collusion rebuts the premise on which
    admissibility [of similar fact evidence] depends.

If the evidence [of collusion] amounts to no more than
    opportunity, it will usually best be left to the jury.

The Court in
Arp
,

supra
,
concluded that the test for the admission of similar fact evidence is based on
    probability rather than reasonable doubt.
Accordingly where, as here, there
    is some evidence of actual collusion, or at least an "air of reality"
    to the allegations, the Crown is required to satisfy the trial judge, on a
    balance of probabilities, that the evidence of similar facts is not tainted
    with collusion.
That much would gain admission. It would then be for the
    jury to make the ultimate determination of its worth.  [Emphasis added.]

[26]

Where
    the similar fact test is met, that is, the probative value of the evidence
    outweighs its legally prejudicial effect, but there is also evidence of actual
    collusion among the complainants whose testimony constitutes the similar fact
    evidence, the Crown must show, on a balance of probabilities, that the evidence
    of similar fact is not tainted by collusion.  If the Crown is unable to satisfy
    this onus, and the judge finds actual collusion among complainants, he must
    exercise his gatekeeper function and deny the similar fact application. 
    However, where the evidence shows only the opportunity for collusion or collaboration
    possibly tainting the evidence, then the matter should be left to the jury. 
    The jury must consider the effect of the possible collusion when deciding the
    weight to be given to the similar fact evidence.  At para. 111 of
Handy
(above), Binnie J. says, if the evidence [of collusion] amounts to no more
    than opportunity, it will usually be left to the jury.

[27]

In
R. v. Shearing
(2002), 165 C.C.C. (3
rd
) 225 (S.C.C.), at
    para 44, Binnie J. says:

Here, there is some evidence of opportunity for collusion or
    collaboration and motive, but nothing sufficiently persuasive to trigger the
    trial judges gatekeeper function.  There is no reason here to interfere with
    the trial judges decision to let the collusion issue go to the jury.  He
    instructed the jury to consider all of the circumstances which affect the
    reliability of that evidence including the possibility of collusion or
    collaboration between the complainants.  He defined collusion as the
    possibility that the complainants in sharing their stories with one another,
    intentionally or accidentally allowed themselves to change or modify their
    stories in order that their testimony would seem more similar or more
    convincing.
It was for the jury to make the ultimate determination whether
    the evidence was reliable despite the opportunity for collaboration or that
    less weight or no weight should be given to evidence which may have been
    influenced by the sharing of information.

[Emphasis added.]

[28]

In
R. v. F.(J.)
(2003), 177 C.C.C. (3
rd
) 1 (O.C.A.), at para
    86, Feldman J.A. says:

The Supreme Court has recently addressed the seriousness of the
    possibility that evidence has been tainted by collusion in the context of the
    treatment of similar fact evidence. In the cases of
R. v. Handy

(2002),
    164 C.C.C. (3d) 481
and
R. v. Shearing

(2002),
    165 C.C.C. (3d) 225
,
the court held that before admitting
    similar fact evidence, the trial judge must be satisfied of its reliability and
    exclude it if not satisfied on a balance of probabilities that the evidence is
    not tainted by collusion. Once admitted, the jury must still be warned to
    assess the evidence carefully and to consider whether it can be considered
    reliable given the possibility of deliberate or accidental tainting by
    collusion among the witnesses.

[Emphasis
    added.]

Analysis

[29]

Here,
    it is clear that there was at least some evidence of possible inadvertent collusion,
    perhaps not enough to deny the similar fact application, but sufficient to
    raise concerns that the opportunity for tainting of the evidence existed.  Put
    another way, there was at least an air of reality to the possibility of
    inadvertent collusion.  As discussed in
Shearing
, the trial judge
    should have left it with the jury to decide the effect that possible collusion
    may have had on the weight to be assigned to the evidence of the complainants.

[30]

In
    this case, the opportunity for the jury to assess the weight of evidence, given
    the possibility for collusion, was specifically taken from them.  In our view,
    the trial judge erred in instructing the jury, after the defence address, that
    there was no air of reality to the theory that evidence may have been affected
    by the media reports or through communication with others in the drug
    subculture.  Similarly, in her charge, she erred in instructing the jury that
    the test set down by the Supreme Court of Canada for collusion or concoction
    had not been met and further that there is no evidence of collusion or
    concoction in this case that should concern you in assessing what import, if
    any, you place on the similarities you find there to be in the descriptions of
    events the women have provided to you.  The reference to the Supreme Court of
    Canada test added an aura of authority to the trial judges admonition.  In our
    view, she erred in taking the issue from the jury.

[31]

At
    trial, the issue of potential collusion or tainting, even inadvertently, was an
    important element in the defence case, as counsel told the jury in her closing
    address.  Taking from the jury any consideration whatsoever of this issue,
    especially in a case where the balance of the evidence was not overwhelming,
    given that the appellant was found not guilty of two of the five complainants
    counts, amounted to reversible error.

The Severance/Admission of Evidence
    Issue

[32]

At
    the outset of the trial, the judge permitted the severance of the counts
    respecting D.T.  Having done so, she then permitted the Crown to call D.T. as a
    witness to give similar fact evidence.  Her rulings in this regard raise the
    question of whether or not the combined effect of allowing both applications
    violated the appellants right to silence.

Reasons of the Trial Judge

[33]

During
    the pre-trial motions the defence applied to sever the counts on the indictment
    relating to the allegations of D.T., M.B. and B.M.  The appellant indicated
    that his defence to the D.T. counts was that she had consented to the sexual
    activity.  He therefore wished to testify with respect to only that issue as it
    related to the D.T. counts.  He indicated he did not wish to give evidence
    respecting his defence to the other complainants counts.

[34]

The
    trial judge allowed the severance of the D.T. counts only.  In ruling #3, at
    paragraphs 66 to 69, she said:

I now turn to the D.T. counts.

First, I agree with the defence that while there are
    similarities between the alleged circumstances of the D.T. assault and the
    other alleged assaults, there are also factors that set the D.T. counts
    somewhat apart.

However, this slightly diminished probative value alone would
    not be sufficient to warrant the D.T. counts being severed.
The primary
    factor that has influenced the exercise of my discretion to sever the D.T.
    counts is Mr. Dorseys stated intention to testify on his own behalf in relation
    to those counts and the timing, significance and apparent legitimacy of that
    intention.

I am satisfied that Mr. Dorsey has met his burden of
    demonstrating that the interests of justice require that the D.T. counts be
    severed from the rest of the indictment. While the consequences of this
    conclusion give rise to administrative inconvenience and additional cost, these
    considerations do not take precedence over Mr. Dorseys interests or his
    constitutional rights. [Emphasis added.]

[35]

Following
    the severance application, the Crown applied to admit D.T.s allegations as
    similar fact evidence to support the credibility of the other five
    complainants.  The trial judge, in allowing the application, in Ruling #4, said
    at paras. 63 and 64:

As I have said, the potential probative value is high. The risk
    of moral prejudice is low because Mr. Dorsey already faces allegations made by
    5 separate complainants, the details of which are factually similar and the
    severity of the conduct alleged is of a similar degree of seriousness. One more
    complainant will not affect the trier of fact in an improper way. Furthermore,
    the risk of reasoning prejudice is also low where the case involves 5
    complainants. This evidence will not distract the trier of fact from coming to
    their conclusion.

The Crown has satisfied me that, on balance, the probative
    value of the proposed evidence would be greater than any prejudicial effect.

Appellants Position

[36]

The
    Appellant argues that in having granted the severance and then allowing the
    similar fact application, including D.T.s evidence, placed the appellant in
    the untenable position of testifying only regarding D.T.s severed counts and
    none of the others. The jury would have been at least curious, if not dubious
    about his sincerity, as to why he was testifying on the counts on which he
    could not be convicted but not on the counts on which he could be found guilty.

[37]

The
    trial judge was alive to the conundrum the appellant faced.  At the conclusion
    of the Crowns case she said:

If, however, he decides to testify only because the jury has
    heard what D.T. has to say, and thats the only reason he decides to testify,
    then in those  and thats all he wants to talk about  then in those
    circumstances, it seems to me one possibility in relation to making sure that
    he is not adversely affected by my similar fact ruling, in a way that
Ive
    tried to protect him with my severance ruling, is to allow him to testify only
    in relation to D.T., not allow the Crown to cross-examine him beyond that, and
    simply give proper instructions to the jury.
[Emphasis added.]

However, the appellant argues that the trial judges
    proposed solution did not correct the problem of which she was admittedly
    aware.

Respondents Position

[38]

The
    respondent argues that the trial judges reasons for granting the similar fact
    application discloses no error and the appellants right to a fair trial was
    not impaired by the ruling.

[39]

The
    respondent asserts that a similar fact application is not the same as a
    severance application, and that the tests for granting each are different.  The
    granting of one application does not automatically bring a similar ruling in
    the other.  It is acceptable that the outcomes may differ.  The trial judge
    provided detailed reasons on the similar fact application decision, and applied
    relevant law.  There was a discussion of the similarities between the evidence
    of D.T. and the other complainants.  The potential risk of prejudice was low
    and the probative value was high.

[40]

The
    respondent also submits that the Crown deliberately omitted calling evidence
    that would bolster the strength of the D.T. evidence.  He elected not to call
    DNA evidence, nor evidence of other witnesses that would have corroborated the
    D.T. story.  Therefore, the defence had no need to give evidence in response to
    the testimony of D.T.  At the conclusion of the Crowns case, the defence could
    have brought another application, but did not do so.  This was an indication
    that the appellant wished to testify on all charges at trial.

The Law

[41]

In
R. v. Hebert
,
[1990] 2
    S.C.R. 151
,
the
    Supreme Court of Canada expanded the rules, rights and privileges derived from
    the principle against self-incrimination by finding that the right to silence
    is included within s. 7 of the
Charter
.

[42]

The
    connection of the right to silence to the principle against self-incrimination
    is clear in the reasons of McLachlin J., as she then was, at para. 47:

The measure of the right to silence may be postulated to reside
    in the notion that a person whose liberty is placed in jeopardy by the criminal
    process cannot be required to give evidence against himself or herself [i.e.,
    the principle against self-incrimination], but rather has the right to choose
    whether to speak or to remain silent.

[43]

Thus, the right to silence is
    rooted in the privilege against self-incrimination. Section 11(c) of the
Charter
precludes a person from being compelled to testify at
    trial.

[44]

In
R. v. Amway Corp.
, [1989] 1 S.C.R. 21, at para. 35, Sopinka J. wrote
    that the purpose of s. 11(c) is: to protect the individual against the affront
    to dignity and privacy inherent in a practice which enables the prosecution to
    force the person charged to supply the evidence out of his or her own mouth.

[45]

In
R. v. Last
, 2009 SCC 45, [2009] 3 S.C.R. 146, the trial judge dismissed Mr. Lasts
    application to sever the counts of two complainants.  He was convicted on all
    counts.  This court dismissed his appeal.  The Supreme Court of Canada set out
    the factors a trial court must take into account when considering a severance
    application.  While the court in
Last
was dealing with only a severance application, its comments on one of
    the eleven factors to be considered are applicable to this case.  Where the
    accused expresses his intention to testify on one count but not others,
    Deschamps J, writing for the court, said at paras. 25 and 26:

In assessing the accuseds testimonial intention on a severance
    application the underlying concern is for the accuseds ability to control his
    defence, and, more specifically,
his right to decide whether or not to
    testify with respect to each of the counts unimpaired by inappropriate
    constraints.


Both the Crown and the defence submit that the accuseds
    intention should be objectively justifiable. This requirement is, indeed, a
    threshold. The accuseds 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 accuseds 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 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:
Cross
, at
    p. 421.
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.
[Emphasis added.]

Analysis

[46]

An
    accuseds right to remain silent is an anchor in protecting his
Charter

rights.  In this case, the appellant submits that he was coerced into the
    box to testify by the trial judges decision to allow the severance of the
    D.T. counts, and then to later allow the similar fact evidence application
    regarding D.T.s evidence.

[47]

There
    is merit to the appellants position.   By deciding to sever the D.T. counts,
    the trial judge properly allowed the appellant to control his own defence. 
    However, by then allowing the similar fact application regarding the D.T.
    evidence, the trial judge, in effect, nullified the protection she had
    previously concluded was necessary when severing the counts.

[48]

The
    two rulings conflicted with each other.  The similar fact ruling likely had the
    unintended, yet unfortunate, effect of at least influencing the appellant to
    testify on all counts, if not leaving him no choice but to do so.  This
    violated the principles described in
Last
, and removed from the appellant
    his ability to control his own defence, thereby violating his ss. 7 and 11(c)
Charter
rights.
The appellants counsel expressed the appellants
    surprise and frustration that the inevitable result of the two rulings was
    that he felt he had to testify on all counts.  His counsel then advised the
    court that the appellant reluctantly had decided to give evidence in response
    to all counts he faced.   While the result was no doubt unintended, it
    nevertheless resulted in infringing the appellants right to a fair trial.

[49]

Once
    both applications were granted, the trial judge suggested that she would allow
    the appellant to testify in relation to D.T.s alleged consent to the sexual
    conduct and limit the respondents cross-examination to that issue.  She also
    suggested giving a limiting instruction to the jury.  She said she would
    allow him to testify only in relation to D.T., not allow the Crown to
    cross-examine him beyond that, and simply give proper instructions to the
    jury.  However, in our view, the trial judges proposed solution did not
    assist the situation.  The prospect of the appellant testifying on only the
    counts relating to D.T. was not satisfactory.  It would raise serious questions
    in the jurys mind about why the appellant did not testify on the other
    charges.  A limiting charge may only have emphasized or highlighted the fact
    that the appellant had not denied the counts of the other complainants.  The
    jury may have been left wondering why he had not done so.

[50]

In
    reaching this conclusion, we should not be taken to say that in cases where an
    accused seeks a severance on the basis that he or she wishes to testify on only
    some of the counts, a court should always grant severance.  As pointed out by
    the Supreme Court in
Last
, there are a number of factors to be taken
    into consideration in making a decision to sever.  The difficulty in this case
    is that the trial judge made the severance order primarily on the basis of the
    need to allow the appellant to testify on only the D.T. charges.  Having
    reached that conclusion, it was an error, in our view, to then make the similar
    fact ruling that had the effect of denying the appellant the protection the
    trial judge had previously determined was necessary.

[51]

It
    should be noted that the admission of D.T.s evidence probably added no more
    than a minimal benefit to the administration of justice.  While one can only
    speculate on the effect her evidence may have had on the verdicts the jury
    reached, it is noted there were five other complainants giving similar
    evidence.  When weighing the potential probative value of D.T.s evidence
    against the prejudice to the appellant, once her counts were severed, her
    evidence should not have been permitted before the jury.

CONCLUSION

[52]

The
    appeal is allowed and a new trial ordered.

D. OConnor A.C.J.O.

J.C. MacPherson J.A.

OConnor J. (
ad hoc
)

RELEASED: DOC  MAR 23 2012


