Accused charged with two counts of sexual assault in relation to two different complainants. Both alleged incidents occurred in the course of the accused’s employment as a massage therapist, but the degree of physical contact differed significantly. Application by accused for severance of the counts. Current election of judge and jury.

Held: Severance application allowed.

Factors in Last, 2009 SCC 45 considered. The factual and legal nexus was “if not weak, certainly not very strong”, in light of the very different nature of the two assaults. There would be significant potential prejudice to the accused if the counts were tried together: he sought different elections, intended to raise completely different defences to the two charges, and wished to testify in relation to one count but not the other. While Crown intended to lead similar fact evidence to establish modus operendi, a preliminary assessment suggested the prejudicial effect, including moral and reasoning prejudice, would outweigh the probative value. Counts severed.

E. Weisenburger – Defence Counsel