R v Last

R. v. Last

[2009] S.C.J. No. 45
Supreme Court of Canada — Deschamps J. | October 15, 2009

Background

Gregory Ernest Last was charged in one indictment with counts related to two separate sexual assault incidents in London, Ontario, approximately one month apart. The first incident involved S.M., whom Last had met at a nightclub on her 19th birthday. After giving her a ride home, Last allegedly pulled out a gun, held it to her forehead, choked her, and repeatedly sexually assaulted her. The second incident involved M.A., a 32-year-old woman Last met through a mutual friend. After accompanying her to her apartment, Last allegedly struck her across the forehead with a mug, choked her until she was unconscious, and sexually assaulted her while she was naked and covered in blood.

Before trial, Last applied for severance under section 591(3) of the Criminal Code, asking that the counts related to each sexual assault be tried separately. The trial judge denied the application, finding there was a nexus in time and place between the incidents but concluding that any prejudice could be addressed through jury instructions. Last was convicted on all charges and sentenced to 22.5 years' imprisonment.

Issues

1. Did the trial judge err in dismissing the application for severance?
2. Whether the significant risk of prejudice to the accused outweighed any benefits to the administration of justice in trying the counts together.

The Severance Analysis

Section 591(3) of the Criminal Code allows a court to order that an accused be tried separately on different counts "where it is satisfied that the interests of justice so require." The Supreme Court established that courts must balance the risk of prejudice to the accused against the public interest in a single trial. Key factors include: 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 multiple proceedings; the use of similar fact evidence; the length of trial; and the potential prejudice regarding the right to be tried within a reasonable time.

The Court found the trial judge failed to conduct a proper balancing exercise. Although Last was likely to testify on both incidents, the risk of prejudice was nevertheless significant because of the dangers of credibility cross-pollination and prohibited propensity reasoning. The two incidents involved different complainants who didn't know each other, occurred in different locations, and raised different legal issues (consent versus identification). There was no factual nexus beyond the city and timeframe, and no similar fact evidence application was made.

Key Takeaway

When multiple charges involve separate incidents with different complainants, courts must carefully weigh whether trying them together creates unfair prejudice that outweighs judicial efficiency.

The Supreme Court emphasized that judges cannot simply rely on jury instructions to cure significant prejudice, and must genuinely balance all relevant factors rather than giving undue weight to administrative convenience. The Court set aside the convictions and ordered separate trials for the counts related to each victim.