Facing accusations of sexual assault from multiple complainants can feel overwhelming. There is a real danger that jurors may leap to conclusions based on the mere fact that more than one person is making the same kind of allegation. Where there is smoke there is fire, or so the saying goes.
Fortunately, there is a tool at your disposal for lessening the potential prejudice. A severance application can be brought so that there are separate trials for the complainants. Pursuant to s. 591 of the Criminal Code the court may, where it is satisfied that the interests of justice so require, order that the accused or defendant be tried separately on one or more of the counts. The Courts have identified a number of factors that assist in determining how the interests of justice may be served in a particular case, i.e. whether severance would be appropriate:
- 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 desire to avoid a multiplicity of proceedings;
- the use of similar fact evidence at trial;
- 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.
Although severance applications are normally brought in cases where an accused is being tried by jury, there may be circumstances where it is desirable to do so in a judge alone trial. This will usually arise when the accused wishes to testify on some counts but not others.