COURT OF APPEAL FOR ONTARIO
DOHERTY, FELDMAN and LAFORME JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Christopher Hicks and Sarah Egan
for appellant Savoury
Respondent
Peter Connelly
for appellant Shaw
- and -
Philip Perlmutter
TRAVIS SAVOURY and SEYMOUR SHAW
for the respondent
Appellants
Heard: June 28, 2005
On appeal from the conviction entered by Justice Denise E. Bellamy of the Superior Court of Justice, sitting with a jury, on February 28, 2001 and the sentence imposed dated April 30, 2001.
DOHERTY J.A.:
I
Overview
1The appellants were jointly tried on a three count indictment. The first count charged Travis Savoury (“Savoury”) alone with attempted murder. Counts two and three charged Savoury and Seymour Shaw (“Shaw”) jointly with robbery while armed with a firearm and aggravated assault. The jury convicted on all charges. Savoury received sentences totalling thirteen years in addition to four and half months pretrial custody. Shaw received sentences totalling six years in addition to fifteen months pretrial custody. Savoury and Shaw both appealed conviction and sentence, but Shaw has abandoned his sentence appeal.
2I would allow Savoury’s appeal and order a new trial on the ground that the trial judge erred in refusing Savoury’s severance application. I would dismiss Shaw’s appeal.
II
Factual Background
3The charges arose out of a single incident. Lloyd Noel, who knew Shaw from junior high, bumped into him at a plaza. Shaw offered to sell Noel a gold chain. The two men left the plaza in a car belonging to Noel’s girlfriend. Noel was driving and Shaw was seated in the front seat. After travelling a short distance, Shaw directed Noel to stop the vehicle near a group of men who were standing in front of a house. Noel and Shaw got out of the vehicle and Shaw went into the house. He exited shortly afterwards with another individual. Shaw and Noel got back into the front seat of the vehicle. The companion sat in the back seat.
4Shaw directed Noel to drive away from the house and park on an adjoining street. As soon as Noel had parked the car, the man in the back seat pulled out a gun, pointed it at Noel and told him not to move. The man in the back seat directed Noel to climb between the seats into the back seat. After Noel was in the back seat, the man instructed him to remove his jewellery. Noel complied. At the same time, Shaw, at the instruction of the person in the back seat, went through the glove compartment. After the man in the back seat had removed Noel’s jewellery, he placed a jacket over Noel’s head. Noel believed he was about to be shot and grabbed for the gun. A struggle ensued and the gun discharged. Noel was shot in the stomach. Noel saw the man in the back seat and Shaw leave the vehicle, exchange congratulatory hand gestures and run off together.
5Noel managed to get out of the car and seek assistance. He suffered life-threatening injuries.
6Noel identified Savoury as the man in the back seat in a photo line-up held two days after the incident. He maintained that identification throughout the proceedings.
7The Crown’s case against Savoury rested primarily on Noel’s identification of Savoury as the person in the back seat in the photo line-up. The Crown also led evidence that Savoury’s left palm print was found on the outside of the right rear door of the automobile in which the robbery had occurred. The Crown argued that Savoury had no connection to the vehicle and no opportunity, save for at the time of the robbery, to place his palm print on the outside of the vehicle. There was no evidence that prior to the robbery, Savoury had any connection to Noel, or the car.
8Savoury did not testify. Through counsel, he attacked the reliability of Noel’s identification evidence. Counsel placed particular significance on Noel’s assertion that the person in the back seat had a noticeable gap in his front teeth. Counsel argued that Savoury had no such gap. Counsel suggested to the jury that Savoury could have been one of the men standing outside of the house where Noel and Shaw parked and that he may have placed his palm print on the outside of the vehicle at that time.
9The Crown’s case against Shaw rested on his admission through counsel that he was present in the car when the robbery occurred and Noel’s evidence describing Shaw’s conduct during the robbery. The Crown argued that Shaw had set up the robbery and that his conduct during the robbery indicated that he and Savoury had agreed to carry out the robbery. The Crown submitted that the evidence supported the inference that Shaw knew that Savoury was armed and knew that it was probable that he would use the firearm in the course of the robbery. It was the Crown’s position that Shaw was guilty of robbery as a co-perpetrator and of aggravated assault pursuant to the common intention provisions of s. 21(2) of the Criminal Code.
10Shaw did not testify. Prior to closing argument, counsel sought a ruling as to the availability of the defence of duress. He submitted that there was evidence in the testimony of Noel that supported the claim that Shaw had been threatened by the person in the back seat and acted under duress in the course of the robbery. The trial judge found that there was no “air of reality” to a duress claim. Counsel for Shaw argued before the jury that Shaw had no prior knowledge that the person in the back seat was armed or was going to rob Noel, and that Shaw was not a party to any of the offences committed by the person in the back seat. Counsel contended that to the extent that he did anything to assist that person, he acted out of fear and not out of any common design to rob Noel.
III
Savoury’s Conviction Appeal
11Counsel for Savoury relied primarily on the submission that the trial judge erred in failing to sever the trial of Savoury and Shaw so that Savoury could call Shaw as a witness. Counsel submitted that the failure to order severance occasioned a miscarriage of justice. As I would give effect to this argument and direct a new trial, I will not make a detailed analysis of the other grounds of appeal. I will first make brief reference to three of those other grounds.
(i) The eyewitness identification instruction
12Counsel at trial, and again on appeal, argued that the trial judge was required to tell the jury that if Savoury did not have a gap in his front teeth as Noel had said the robber did, this discrepancy was sufficiently significant to necessitate a rejection of Noel’s identification evidence and hence, an acquittal of Savoury. Counsel relies on Chartier v. Attorney General of Quebec (1979), 1979 17 (SCC), 48 C.C.C. (2d) 34 at 51-52 (S.C.C.) to support this submission. Chartier did not involve an instruction to a jury. The passage extracted from Chartier by the appellant is a reference to the evidence of a witness which, as observed in Chartier, the trial judge had mistakenly described as identification evidence when in fact the witness, while noting a resemblance, had also noted a significant difference between the assailant and the person in the line-up.
13Chartier is not authority for the proposition that in a jury trial it is the trial judge’s function to decide whether there are discrepancies between a description provided by a witness and the actual appearance of an accused and, if so, whether those discrepancies are significant. These are factual questions that arise out of the evidence and like other factual questions, are for the jury to decide.
14In this case, the trial judge instructed the jury on the potential importance of any significant discrepancy between the description of the robber provided by Noel and Savoury’s actual appearance. She referred to the evidence concerning the alleged absence of any gap in Savoury’s front teeth. The trial judge properly left it to the jury to decide whether there were any discrepancies between Noel’s description of the robber and Savoury’s actual appearance, and if those discrepancies existed, the significance that should be attributed to them in the circumstances of this case when assessing the identification evidence of Noel.
(ii) The alleged misdirection on the attempted murder charge
15There was ample evidence from which the jury could infer that the gun discharged accidentally during the struggle between Noel and Savoury. Counsel submits that the accidental discharge of a firearm is not an act capable of supporting a conviction for attempted murder. He submits that the trial judge should have told the jury that if they concluded that the gun discharged accidentally, or if they had a reasonable doubt on that issue, they must acquit on the charge of attempted murder.
16The same submission was made and rejected at trial. The trial judge told the jury that if Savoury had pointed a cocked, loaded firearm at Noel, he had as a matter of law gone beyond the mere preparation phase of the crime of murder. The trial judge was required to make this determination under s. 24(2) of the Criminal Code. Counsel on appeal concedes that this instruction was correct. The trial judge further instructed the jury that Savoury could only be convicted if at the time he pointed the cocked, loaded firearm at Noel he intended to kill him. She instructed the jury that the question of whether Savoury intentionally discharged the firearm during the struggle was relevant to whether he had the intention to kill when he pointed the loaded, cocked firearm at Noel.
17The trial judge’s instructions on attempted murder were correct in law and well tailored to the evidence adduced in this case. An instruction that Savoury could not be convicted of attempted murder if the gun discharged accidentally during the struggle would have been wrong in law. If Savoury intended to kill Noel when he pointed the firearm at him, he was guilty of attempted murder even if the gun subsequently discharged accidentally.
(iii) The application of the “Kienapple” principle
18Counsel for Savoury submitted, and the Crown conceded, that Savoury should not have been convicted of both attempted murder and aggravated assault. The offences arose out of the same factual transaction, involved the same victim, and related to offences that protected the same societal interests: R. v. Kinnear, an unreported decision of the Court of Appeal for Ontario dated June 15, 2005. If on a new trial Savoury is found guilty of both attempted murder and aggravated assault, the conviction on the aggravated assault charge should be stayed. This would, of course, have no effect on the determination of an appropriate sentence.
(iv) The severance argument
19At the conclusion of the Crown’s case, counsel for Shaw elected to call no evidence. Counsel for Savoury indicated that he intended to call a defence and moved for an order severing his trial from Shaw’s. Counsel indicated that he wanted to call Shaw as a witness. Shaw was, of course, not a compellable witness as long as he was a co-accused.1
20Savoury’s counsel advised the trial judge that he anticipated that if Shaw were compelled to testify, he would state that Savoury was not the person in the back seat who had robbed and shot Noel. To support this submission, counsel for Savoury relied on Shaw’s videotaped statement made under oath to the police at the time of his arrest and Shaw’s testimony in his own defence at the first trial on these charges. That trial had resulted in a mistrial when the members of the jury were unable to agree on their verdicts. In the videotaped statement, Shaw identified the person in the back seat as a man known to him as “Buju”. Shaw described “Buju” and that description was not consistent with Savoury’s appearance. In the statement, Shaw said he had no knowledge that “Buju” planned to rob Noel. Shaw insisted he had nothing to do with the robbery. In his evidence at the first trial, Shaw testified that the person in the back seat was a man known to him as “Buju”. He further testified that he was also a victim of the robbery and had been threatened by “Buju” during the robbery. Shaw testified that he knew Savoury and that while Savoury was present outside of the house when he and Noel drove up in his girlfriend’s car, Savoury did not get into the vehicle and had nothing to do with the robbery.
21The trial judge refused to order severance. In detailed reasons, the trial judge acknowledged that one accused’s desire to call a co-accused to give evidence that could assist the accused in his or her defence could justify a severance order. She went on to consider the substance of Shaw’s videotaped statement to the police and his testimony at the prior trial. After noting many inconsistencies in Shaw’s account of the relevant events, she said:
As for evidence not available in joint trials, courts have attempted to gauge the actual prejudice to the accused as opposed to hypothetical possibilities. The practical result of Seymour Shaw testifying in a trial in favour of Travis Savoury is that he has given so many prior inconsistent statements under oath that he would very likely be found not to be a reliable witness [emphasis added].
22A trial judge may order severance of the trial of a co-accused only if satisfied that “the interests of justice so require”: Criminal Code, s. 591(3). The interests of justice encompass those of the accused, the co-accused, and the community as represented by the prosecution. The trial judge must weigh these sometimes competing interests and will direct severance only if the accused seeking severance satisfies the trial judge that severance is required. To satisfy that burden, the accused must overcome the presumption that co-accused who are jointly charged and are said to have acted in concert, should be tried together. The policy behind this presumption was described by D.W. Elliot in his article “Cut Throat Tactics: The Freedom of an Accused to Prejudice a Co-Accused”, [1991] Crim. L. Rev. 5 at 17, and cited with approval by Sopinka J. in R. v. Crawford (1995), 1995 138 (SCC), 96 C.C.C. (3d) 481 at 397:
[I]t is undeniable that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion. ….
23In the present case, the co-accused Shaw did not allege that he would be prejudiced by a severance order, or by a joint trial. The competing interests are, therefore, those of Savoury and the Crown. Savoury did not argue that his fair trial right would be prejudiced in the sense that at a joint trial the jury would hear evidence that was inadmissible against Savoury and that could prejudice his case. Savoury did argue, however, that his right to make full answer and defence was prejudiced by a joint trial in that it rendered his co-accused Shaw a non-compellable witness. Savoury contended that Shaw had direct exculpatory evidence to give and that Savoury could make full answer and defence only if he could compel Shaw to give that evidence.
24The Crown opposed severance relying on factors such as the extra costs and delay associated with separate trials, as well as the added imposition on Mr. Noel, the victim who had already been required to testify three times.
25The Crown did not, and could not, rely on the danger of inconsistent verdicts described in cases like R. v. Suzack (2000), 2000 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.). In Suzack, the two co-accused blamed each other for the murder. Where “cut throat” defences are advanced, there is a real danger that if severance is granted, each accused may successfully point the finger at the other accused in their separate trials. Two acquittals based on directly contradictory versions of the relevant events hardly encourage respect for the criminal justice process. The defences advanced by Shaw and Savoury were not antagonistic and there was no suggestion that if severance were ordered, two juries would hear two very different versions of the relevant events.
26The trial judge’s decision to refuse severance was an exercise of her discretion. Like any other discretionary decision, the trial judge’s refusal to grant severance is entitled to deference: R. v. Litchfield (1993), 1993 44 (SCC), 86 C.C.C. (3d) 97 at 113-114 (S.C.C.). This court will interfere with the exercise of that discretion where the trial judge had failed to consider the relevant principles, or has considered an irrelevant principle. If the trial judge has erred in principle, it falls to this court to decide, according to the proper principles, whether severance should have been granted. Even if a trial judge has considered the relevant principles, this court will review the trial judge’s exercise of her discretion against a reasonableness standard. As Laskin J.A. said in R. v. McKnight (1999), 1999 3717 (ON CA), 135 C.C.C. (3d) 41 at 54 (Ont. C.A.), when referring to a different discretionary decision:
The weighing of relevant factors, the balancing process is what the exercise of discretion is all about. To maintain deference to the trial judge’s exercise of discretion, the weighing or balancing of relevant factors must be assessed against the reasonableness standard of review. Only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court interfere … [emphasis added].
27The trial judge correctly recognized that an accused’s desire to call his co-accused as a witness for his defence could provide the basis for a successful severance application, but that the mere assertion of a desire to call the co-accused did not make severance automatic: R. v. Chow (2005), 2005 SCC 24, 195 C.C.C. (3d) 246 at 255-56 (S.C.C.); R. v. Boulet (1987), 1987 849 (QC CA), 40 C.C.C. (3d) 38 at 42 (Que. C.A.); R. v. Torbiak and Gillis (1978), 1978 2266 (ON CA), 40 C.C.C. (2d) 193 at 199 (Ont. C.A.); R. v. Agawa and Mallet (1975), 1975 482 (ON CA), 28 C.C.C. (2d) 379 at 387 (Ont. C.A.).
28Where an accused seeking severance contends that his right to make full answer and defence will be prejudiced unless the co-accused can be compelled to testify, two factors must be addressed by the trial judge:
Is there a reasonable possibility that the co-accused, if made compellable by severance, would testify?
If the co-accused would testify, is there a reasonable possibility that the co-accused’s evidence could affect the verdict in a manner favourable to the accused seeking severance?
29If the accused seeking severance can convince the trial judge that there is a reasonable possibility that the co-accused will testify and that his testimony could affect the verdict by creating a reasonable doubt as to the accused’s guilt, the trial judge may properly grant severance. It is nonetheless open to the trial judge to exercise her discretion against severance if there are other factors of significant cogency that outweigh the potential impairment of the accused’s right to make full answer and defence occasioned by a joint trial. An accused is entitled to a fair trial, but not necessarily the ideal trial from the defence perspective: R. v. Cross (1996), 1996 5992 (QC CA), 112 C.C.C. (3d) 410 at 419 (Que. C.A.), leave to appeal to S.C.C. refused 114 C.C.C. (3d) vi.
30The trial judge’s reasons refusing severance focused on the two criteria identified above. Although the Crown argued, based on Shaw’s refusal to testify in an unrelated proceeding, that there was reason to doubt Shaw’s willingness to testify if severance was granted, I read the trial judge’s reasons as assuming that he would testify if rendered compellable. Shaw had testified at the first trial and had given a sworn videotaped statement to the police. In addition, counsel, who had presumably spoken with Shaw, had indicated that Shaw was prepared to testify. Counsel’s representations are entitled to some weight: R. v. Boulet, supra, at p. 42.
31There was good reason to believe that Shaw would testify if compelled to do so. In reaching that conclusion, I place no weight on Shaw’s decision not to testify in the joint trial. His decision not to testify in his own trial casts little, if any, light on whether he would testify if compelled to do so at a trial in which he was not an accused. This is particularly true in a case like this where the evidence that Savoury wanted to elicit from Shaw had little or no relevance to the defence advanced by Shaw. Shaw did not hurt his cause by testifying in a separate trial that Savoury was not the person in the back seat.
32I am, however, satisfied that the trial judge erred in principle when considering the possible effect of the evidence that Shaw could give if compelled to testify. The trial judge went beyond the limited inquiry into Shaw’s reliability and credibility that is contemplated on a severance application. Martin J.A. described that inquiry in these terms in R. v. Torbiak, supra, at p. 199:
If the evidence of a co-accused sought to be elicited on behalf of another co-accused is such that, when considered in the light of the other evidence, it might reasonably affect the verdict of the jury by creating a reasonable doubt as to the guilt of the latter, then precluding him from having the benefit of that evidence may require a separate trial, [emphasis added] …2
33The trial judge failed to consider what the jury might reasonably take from Shaw’s evidence considered in the context of the rest of the evidence. Instead, the trial judge asked herself: “How reliable is Mr. Shaw going to be as a witness?” She then undertook a detailed examination of Shaw’s videotaped statement and his prior testimony, highlighting several inconsistencies between the videotaped statement and his testimony, and between different parts of his testimony.
34The trial judge’s reasons refusing severance reveal potential difficulties with Shaw’s credibility and reliability. He had, however, from the moment of his arrest consistently asserted that Savoury was not the person in the back seat who committed the robbery. While some of the inconsistencies alluded to by the trial judge are potentially significant, they are the standard fare that juries regularly grapple with when assessing the reliability and credibility of both Crown and defence witnesses.
35The trial judge made her own assessment of Shaw’s reliability and credibility, having never seen him testify, and she found both wanting. On that basis, she refused severance. In doing so, she went beyond her limited responsibilities on the severance application and intruded on the domain of the jury. Provided that Shaw’s evidence, considered in the context of the rest of the evidence, could reasonably have left the jury with a reasonable doubt as to Savoury’s involvement in the robbery, the trial judge was required to leave the ultimate assessment of Shaw’s credibility and reliability with the jury: see R. v. Buric (1996), 1996 1525 (ON CA), 106 C.C.C. (3d) 97 (Ont. C.A.), aff’d (1997), 1997 380 (SCC), 114 C.C.C. (3d) 95 (S.C.C.).
36The circumstances of this case can be usefully compared to those found in R. v. Agawa and Mallet, supra. In that case, the co-accused sought severance so that he could compel Mallet, his co-accused, to testify. In affirming the trial judge’s refusal to grant severance, Martin J.A. noted at pp. 387-88 that the proposed evidence of Mallet was “simply not believable” and was “patently unbelievable” when placed alongside the incontrovertible physical and forensic evidence.
37I find nothing “patently unbelievable” in Shaw’s assertion that Savoury was not the person in the back seat. The fingerprint evidence, although a significant arrow in the Crown’s quiver, does not render Shaw’s evidence sufficiently incredible to allow the conclusion that it could not possibly affect the deliberations of a reasonable jury. In fact, Shaw’s testimony provides some modest support for the contention that Savoury may have touched the car when it was parked in front of the house. It is also noteworthy that at the first trial, at which Shaw testified, the jury was unable to reach a verdict on any count.
38Having concluded that the trial judge erred in principle in weighing the credibility and reliability of Shaw, I turn next to the question of whether severance was warranted on a proper application of the relevant principles. Not without some hesitation, I have concluded that severance should have been granted. For the reasons set out above, Savoury’s inability to call Shaw as a witness prejudiced his right to make full answer and defence. While there were some considerations weighing against severance, such as the requirement that Mr. Noel would have to testify for a fourth time, those considerations were not sufficiently cogent to trump Savoury’s interest in having potentially exculpatory evidence presented to the jury. The interests of justice required severance.
39Crown counsel referred to Savoury’s failure to testify in his own defence to support Crown counsel’s submission that the failure to order severance did not occasion a miscarriage of justice. Savoury’s failure to testify is irrelevant to the determination of whether on an application of the proper principles, the interests of justice required severance. His failure to testify could be relied on by the Crown to support a contention that the Crown’s case was so strong that the failure to order severance could not have affected the verdict and, therefore, did not occasion a miscarriage of justice. The case presented by the Crown here does not carry the kind of weight required to support this argument. Savoury may have secured an acquittal or at least, as occurred at the first trial a hung jury, if he could have compelled Shaw to testify.
40The convictions entered against Savoury must be quashed and a new trial ordered on all counts.
IV
Shaw’s conviction appeal
41Counsel for Shaw argued that the trial judge erred in refusing to leave the defence of duress with the jury and failed to properly relate the evidence of the accidental discharge of the firearm to Shaw’s potential liability on the charge of aggravated assault. The court did not call on the Crown to respond to either argument. I will refer only to the contention that the trial judge should have left the defence of duress with the jury.
42At the conclusion of the evidence, the trial judge heard submissions on whether duress should be left with the jury. She concluded that there was no “air of reality” to the defence and declined to instruct the jury on that defence.
43On appeal, counsel argues that the trial judge improperly applied a purely subjective test in determining whether the evidence gave “an air of reality” to the defence and erroneously focused on the absence of any evidence from Shaw that he had acted under threats from the person in the back seat.
44The trial judge’s gatekeeper function in respect of defences is well established. Meritless defences that could only confuse juries and lead to improper acquittals cannot be left with the jury. An acquittal premised on a legally meritless defence is a miscarriage of justice: R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 at 170-71 (S.C.C.); R. v. Gunning, 2005 SCC 27, [2005] S.C.J. No. 25.
45In performing her gatekeeper function, a trial judge must decide whether on the totality of the evidence, there is evidence reasonably capable of supporting all of the constituent elements of the defence advanced by the accused: R. v. Cinous, supra, at pp. 172-74. In Cinous, McLachlin C.J.C. and Bastarache J. described the appropriate inquiry in these words at p. 170:
Before putting a defence to a jury, it is the trial judge’s duty to ask not just whether there is evidence in some general sense, but whether there is evidence that is reasonably capable of supporting an acquittal. This requires an assessment of whether the evidence relied upon is reasonably capable of supporting the inferences required for the defence to succeed.
46The trial judge correctly observed that as Shaw had not testified, the necessary evidentiary basis for the defence of duress had to be found in the evidence of the victim, Mr. Noel. She reviewed that evidence and concluded that it would “be pure speculation” to find, based on inferences from Mr. Noel’s evidence, that Shaw acted under threat from the person in the back seat.
47In his submissions challenging the trial judge’s ruling, counsel seized on a single, somewhat equivocal answer given by Mr. Noel in the course of describing the way in which the person in the back seat pointed the firearm towards Shaw when directing him to search the glove compartment. The “air of reality” inquiry does not focus on snippets of evidence considered in isolation from each other. Mr. Noel’s evidence as to where the gun was or was not pointed during the robbery must be considered in the context of the rest of his evidence. The overwhelming tenor of that evidence was that Shaw was a willing participant in the robbery, and remained so throughout.
48I agree with the trial judge’s assessment that there was no “air of reality” to Shaw’s duress defence.
49I would dismiss Shaw’s conviction appeal. He has abandoned his sentence appeal.
RELEASED: “DD” “JUL 21 2005”
“Doherty J.A.”
“I agree K. Feldman J.A.”
“I agree H.S. LaForme J.A.”
