WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Jonathon Jampies, Jasmyn Jarrett, Ahmad Koroma, and Abdulfatah Moallem
Before: Justice P. K. Doody
Application: Application to allow Jasmyn Jarrett to take part in trial
Heard on: November 2, 2020
Reasons for Decision given on: November 2, 2020
Counsel
Lisa Miles and Stephen Lichti — counsel for the Crown
Jonathan Boss — counsel for the defendant Jonathon Jampies
Cedric Nahum — counsel for the defendant Jasmyn Jarrett
Mellington Godoy — counsel for the defendant Ahmad Koroma
Jacob Legault — counsel for the defendant Abdulfatah Moallem
Decision
1Good afternoon. This trial began on September 29th, 2020. There were four defendants remaining from the original five defendants, one defendant's case having been dealt with before the trial before me commenced. Ten days of court time were set aside for the trial.
2One of the defendants, Ms. Jarrett, did not appear. I asked the parties if there was an application to proceed in her absence. Both Crown counsel and defence counsel advised that there was not.
3Crown counsel asked for a bench warrant to arrest Ms. Jarrett. I ordered that a bench warrant issue.
4Crown counsel indicated she wished the trial to continue against the remaining three defendants. They were arraigned. Two of them pled not guilty to all counts. One pled guilty to two counts and not guilty to the other counts.
5The trial proceeded over five court days until October 6th, 2020. The trial was then adjourned until today so that it could be continued over all five days of this week, to be concluded by the end of the week.
6In the interim, Ms. Jarrett was arrested. Her counsel now seeks an order allowing her to join this trial. He advises the Court that his client is prepared to have all the evidence led thus far be considered in the case against her. He does not have any questions for the witnesses that have completed their evidence thus far.
7He told me that I have only two options: to either allow his client to join the trial or to declare a mistrial. He submits that an error was made on the first day of trial when the Crown was allowed to proceed with the trial without having applied for and been granted severance of the charges against Ms. Jarrett from those against the other defendants.
8Crown counsel submits that the charges against Ms. Jarrett were severed when she chose to proceed with the trial against the other three defendants without seeking an adjournment. She submits that Ms. Jarrett is not a party to this trial; she cannot retroactively seek permission to proceed as if she was and cannot ask for a mistrial of a trial to which she is not a party.
9I agree with Crown counsel. These are my reasons.
Crown's Discretion to Proceed
10The Crown chose to proceed with the trial against the other three defendants when Ms. Jarrett did not appear on the first day of trial. In my view, this effectively severed Ms. Jarrett's trial from that of the other three defendants, requiring that a separate trial be held for her. This is in accordance with the common law, which gives the Crown the discretion to determine which accused persons will be tried together.
11In R. v. Weir (1899), 3 C.C.C. 351, Justice Wurtele, of the Quebec Court of Queen's Bench, wrote at page 352:
When several persons are indicted jointly, the Crown always has the option to try them either together or separately; but the defendants cannot demand as a matter of right to be tried separately.
12This decision has been cited and followed many times but all of the citations I have found for it in the short time available have been with respect to its enunciation of the bases upon which a severance can be granted on the application of the defence. Nevertheless, in my view, it is good law. The Crown has the right to choose whether to charge defendants jointly and whether to proceed against them jointly once charged jointly, subject to the Court's discretion to order that counts or accused persons be severed.
Prejudice to Co-Defendants
13The Crown could have chosen to seek an adjournment of the trial on this information, thereby delaying the trial of Ms. Jarrett's co-defendants. That would have prejudiced them by delaying their trial. They all have the right to a trial within a reasonable time. Two are in custody, one for fourteen months. Further delay affects their right to a trial within a reasonable time under s. 11(b).
14In any event, if the Crown were to seek severance, I would have granted the application.
Interests of Justice
15Subsection 591(3) provides that the Court may direct separate trials of one or more accused on one or more counts where "the interests of justice so require." That section has only been applied, in the cases I have seen, where a defendant applies for severance. That is because the Crown does not have to ask the Court to sever an accused from his or her co-accused; it has the right to do so. But the phrase in the subsection "interests of justice" is broad. As Justice Doherty held in R. v. Savoury, 31 CR (6th) 1, a decision of the Court of Appeal:
The interests of justice encompass those of the accused, the co-accused, and the community as represented by the prosecution.
16The interests of the co-accused are to have this trial, which has commenced, continue to completion. That is the position of the defence counsel for the other three defendants, which they made very clear in their submissions before me.
17The Crown will be prejudiced if I were not to sever Ms. Jarrett and require that the trial continue without her, since she was absent from the first half of the trial.
18The Crown submits that it led its evidence on the basis that Ms. Jarrett was not on trial. From the evidence I have heard so far, she stands in a significantly different position from the other three defendants who are on trial. I accept that Crown submission.
19Counsel for Ms. Jarrett submits that the Crown could recall any witnesses if it chose to not ask questions it would have asked had it known that Ms. Jarrett was on trial. That is unrealistic. It has often been said that you cannot un-ring a bell. This suggestion asks that the bell be re-cast, not just re-rung. The interests of justice require that Ms. Jarrett's trial be severed from the trial of the other three defendants.
Right to Be Present at Trial
20Finally, the position advanced by Mr. Nahum, counsel for Ms. Jarrett, effectively seeks an order under ss. 650(2)(b). Subsection 650(1) requires that an accused shall, subject to ss. (1.1) to (2) and s. 650.01"be present in court during the whole of his or her trial." Paragraph 650(2)(b) allows the Court to "permit the accused to be out of court during the whole or any part of [her] trial on such conditions as the court considers proper."
21No such order was sought by Ms. Jarrett or made by me.
22Mr. Nahum now effectively asks me to make such an order nunc pro tunc, as if it had been made at the beginning of the trial. I would not make such an order.
23The portion of the evidence that Ms. Jarrett was not present for, and was not represented by counsel for, was significant. It included all the examination in-chief of the complainant, together with a lengthy cross-examination by counsel for one of her co-defendants. Nine other witnesses were called in addition to the complainant.
24In my view, it is not in the interests of justice that I grant retroactive permission to Ms. Jarrett to not attend that portion of her trial. Attending one's trial is not a right which can be waived; it is an obligation which can be suspended only for good reason. No good reason has been given to me to justify such an order.
Mistrial
25Nor would it be appropriate for me to grant a mistrial at Ms. Jarrett's request. Her trial did not start. I cannot declare a mistrial where the trial has not started.
26In any event, I can only declare a mistrial in the clearest of cases where the trial process has been fatally wounded in a way that cannot be cured by remedial measures. If I am wrong in my ruling that Ms. Jarrett's trial has not started, I could cure the resulting damage by ordering that her trial be severed from that of her co-defendants. Declaring a mistrial now would only prejudice her co-defendants.
Order
27In the result, I order that the trial against Mr. Jampies, Mr. Koroma and Mr. Moallem proceed.
Released: November 2, 2020
Signed: Justice P.K. Doody