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Criminal - Severance of Counts. R. v. F.C.
In R. v. F.C. (Ont CA, 2024) the Court of Appeal considering the 'severance' of criminal counts:[3] Section 591 of the Criminal Code provides that “any number of counts for any number of offences may be joined in the same indictment”. The leading case interpreting this provision is R. v. Last, 2009 SCC 45, wherein Deschamps J., at para. 18, identified nine factors that may assist in determining whether to sever counts in an indictment in a specific case:(1) The factual and legal nexus between the counts.
(2) The complexity of the evidence.
(3) Whether the accused intends to testify on one count but not another.
(4) The possibility of inconsistent verdicts.
(5) The desire to avoid a multiplicity of proceedings.
(6) The length of the trial, having regard to the evidence to be called.
(7) The potential prejudice to the accused with respect to the right to be tried within a reasonable time.
(8) The use of similar fact evidence at the trial.
(9) General prejudice to the accused. . R. v. Holland
In R. v. Holland (Ont CA, 2023) the Court of Appeal cited a leading case on 'severing' counts in a criminal prosecution:[4] Respecting the first ground of appeal, it is well-established that the decision on severance is a matter to which appellate courts must give considerable deference. As Iacobucci J. observed in R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, at para. 30: “an appellate court should not interfere with the issuing judge's exercise of discretion unless it is shown that the issuing judge acted unjudicially or that the ruling resulted in an injustice.”
[5] It is acknowledged that the severance application judge (who was not the trial judge) applied the proper factors in his severance decision as drawn from the decision in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146. The application judge balanced all of those factors. Ultimately, he concluded that severance should not be granted with respect to the two complainants with whom we are concerned here. In reaching that conclusion, the application judge referred to the fact that the Crown had said that it intended to bring a similar act application at the trial. The application judge found that the Crown had met the low threshold that its similar act application “may possibly succeed”.
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