Alberta court rejects attempt to separate charges citing employment relationship
The Court of King's Bench of Alberta recently dealt with an application to sever multiple sexual assault charges against a nightclub manager who allegedly assaulted eight different complainants over a 13-year period. The case discussed issues regarding the conduct of individuals in supervisory positions.
The nightclub manager applied to have the eight counts separated into seven distinct trials. His defence argued that trying all charges together would create unfair prejudice, that the incidents lacked sufficient connection to each other, and that he might want to testify on some counts but not others. They claimed the combined allegations spanned too long a timeframe to be tried fairly together.
The Crown opposed the application, arguing that the cases shared substantial similarities in pattern and method that justified hearing them together. The court needed to balance several factors including potential prejudice, legal connections between counts, evidence complexity, and judicial efficiency in determining whether separation would serve the interests of justice.
The case involved eight separate charges of sexual assault against different complainants who worked in the hospitality industry. The indictment covered incidents from 2006 to 2019, with each charge involving a different complainant who worked in bars and nightclubs.
According to court documents, the Crown alleged that the nightclub manager "used his position as the manager, boss and owner of various nightclubs to ply young women with alcohol, and allegedly spike their drinks with drugs, rendering them incapable of consenting to sexual activity."
Most of the complainants were in subordinate positions to the manager, who occupied supervisory roles in these establishments.
The court noted that there was a recurring pattern in the allegations: "All of the complainants were young females employed as servers at Bars. Except in Count 3, [the manager] was in a supervisory role. [the manager] invited most of the complainants to join him on the night of the allegations. [the manager] provided the complainants with alcohol."
Further similarities included that many complainants reported feeling unusually intoxicated after consuming drinks provided by the manager. The court observed: "All of the complainants described a similar feeling of being heavily intoxicated to the point of experiencing either loss of consciousness or loss of memory. The symptoms described by the complainants were consistent with having ingested substances commonly used to facilitate sexual assault."
Several complainants said they did not initially report the incidents because of employment concerns. For example, one complainant "did not initially report the incident as she did not want people to 'get at her' or to lose her job." Another continued working at the establishment "for another month because she needed the job."
The main legal issue before the court was whether to grant the nightclub manager's application to split the charges into separate trials. The defence argued that trying all charges together would unfairly influence the judgement on each individual count.
The manager applied under section 591(3) of the Criminal Code of Canada for an order to divide the eight counts into seven separate trials, with only two related counts to be heard together.
As stated in the application, the defence argued that "the sheer number of complainants alone significantly heightens the risk that the evidence admissible on one count will influence the verdict on unrelated counts."
The defence also said that the incidents had "no direct connection between the alleged incidents beyond [the manager's] involvement" and that they spanned from 2006 to 2021. The defence claimed that "the superficial similarity of circumstances does not establish the necessary factual nexus to support a joint trial."
The Crown opposed splitting the charges, arguing that Counts 1-7 should be tried together due to their similar nature and overlapping evidence. They did not oppose severing Count 8, which involved allegations of a different nature spanning a longer time period.
In its consideration, the court applied factors from the Supreme Court of Canada case R v Last, which provides guidance on severance applications. These factors included: general prejudice to the accused, legal and factual connections between counts, evidence complexity, the accused's intention to testify on some counts but not others, possibility of inconsistent verdicts, avoiding multiple proceedings, similar fact evidence, trial length, and potential delays.
A key element in the court's decision was whether "similar fact evidence" from multiple complainants could be considered together to establish a pattern of behaviour by the nightclub manager. The court needed to determine if there was sufficient similarity among the allegations.
The court identified striking workplace-related patterns: "Six of the seven complainants referred to him as a boss or manager. All were young and employed in the service industry. The majority were scared they would lose their jobs. Six of the seven complainants bumped into [the manager] on the night in question by chance or met up with him in a group setting."
The complainants described similar experiences following their interactions with the manager. Many reported unusual levels of intoxication and impairment of their faculties after consuming drinks provided by the manager. Most complainants reported seeking medical attention afterward.
The court found this repeated pattern was not likely to be coincidental. As stated in the decision: "One of the distinctive features alleged by the Crown is the fact that he targeted a pool of young females who worked in the service industry. At the same time, he was a manager/owner in a senior position of authority."
This assessment of similar fact evidence was crucial for the court's decision. The court found these similarities "weigh heavily in favour of trying these charges together" because they pointed to a specific behavioural pattern that would be relevant across the different counts.
The employment relationship between the nightclub manager and the complainants was a significant factor in the court's analysis. The position of authority was considered important in creating situations where the alleged assaults occurred.
In most instances, the manager had organisational authority over the complainants as their supervisor or the owner of their workplace. According to the court, "except in Count 3, [the manager] was in a supervisory role" over the complainants who worked at various bars and nightclubs.
This power dynamic affected how complainants responded after the alleged incidents. Many continued working at their establishments, with some expressing concerns about job security or workplace repercussions. As noted in the decision, several complainants "did not initially report the incident" because they "did not want to make a big deal" or were worried about losing their jobs.
The court found that the employment context helped establish a strong "factual nexus" between the counts. While the defence argued that the legal issues would differ between counts, the court found that "based on my review, the main issue will be consent or whether the sexual activity occurred at all. Both the factual and legal nexus weigh heavily in favour of trying these charges together."
The court also noted that several complainants had connections to each other through their employment. For example, one complainant "is acquainted with [two other complainants], and she worked alongside [another complainant] at the same pub." This workplace overlap further strengthened the connection between the different charges.
In its final analysis, the court weighed all factors to determine whether severing the charges would serve the interests of justice and ensure trial fairness for all parties involved in the case.
The court decided against severing most charges, finding that "the possibility of a successful similar fact evidence application weighs strongly in favour of trying Counts 1 to 7 together. Severance of the counts would create an unnecessarily lengthy process, with multiple repetitions of expert evidence and lay evidence, including multiple repetitions of Complainants' evidence."
The court dismissed the manager's argument about needing to testify on some counts but not others: "[The manager] has not provided sufficient information" to justify this concern. The court explained: "While I do not expect [the manager] to disclose his trial strategy, [the manager] must provide sufficient information to convey that 'objectively, there is substance to his testimonial intention'."
The court did, however, grant severance for Count 8, which involved allegations of a different nature. The court stated: "The factual nexus is sufficiently different that it warrants a severance. [The complainant's] allegations span a lengthier period and involve an exploitative relationship. Furthermore, Defence counsel has submitted that they may bring a s 276 application in the context of this charge."
The trial was scheduled to take place between March 24 and April 11, 2025, with the nightclub manager having elected to be tried by judge alone rather than by jury. The court concluded its ruling simply: "Counts 1-7 will be heard together. Count 8 will be severed."
