Court and Parties
Date: September 3, 2024 Ontario Court of Justice Toronto
Between: Her Majesty The Queen — And — Michael Francis — And — Diane Campbell
Before: Russell Silverstein, J.
Counsel: E. McNamara, for the Crown/Respondent A. Stastny, for the Defendant/Applicant Francis No counsel for Campbell
Heard: August 14, 2024
Ruling
A. Introduction
1Mr. Francis and Ms. Campbell are jointly charged with criminal offences arising out of an April 17, 2024, confrontation with Joshua Beckford that took place at a Toronto Community Housing Building.
2Mr. Francis, currently represented by Mr. Stastny, brings this application for severance from Ms. Campbell. On August 14, 2024 I granted the severance application. These are my reasons for doing so.
3Mr. Francis and Ms. Campbell were arrested on February 17, 2024. Ms. Campbell was soon released from custody. Mr. Francis was ordered detained at his show cause hearing on February 26, 2024. This detention order was upheld on a bail review held April 5, 2024.
4Ms. Campbell remains out of custody, and as of August 14, 2024, the date of the hearing of this motion, six months after the incident, she had not yet retained counsel.
5The Crown has elected to proceed by indictment on the joint information.
B. The Anticipated Evidence
6There is CCTV video of the encounter between the two accused and Mr. Beckford. Mr. Beckford has refused to provide police with a statement, and it is not anticipated that he will be called as a witness by the Crown or by either defendant.
7Mr. Stastny has offered to admit the identity of the victim, the nature of his injuries as well as date, jurisdiction, and his client’s identity.
8The trial will essentially come down to what the trier of fact can make of the CCTV video which shows the three protagonists in a scuffle whereby Mr. Beckford emerges with a cut to his hand and Ms. Campbell can be seen stabbing Mr. Beckford in the back with an indiscernible object. When arrested she was found to be in possession of a screwdriver.
C. Ms. Campbell’s Pretrial Behaviour
9Ms. Campbell, although present before the court for the hearing of this application, has not always appeared when required to do so. At the hearing before me she first indicated that she intended to represent herself and thus had taken no steps to apply to Legal Aid Ontario for a certificate. Ms. McNamara made it clear to Ms. Campbell and to the court that the Crown’s position as set out in their Charge Screening Form would likely entitle her to a certificate, and at my urging Ms. Campbell changed her mind and said she would apply to Legal Aid.
D. The Positions of the Parties
10Mr. Stastny’s argument is set out in his factum and was augmented in oral argument. He maintains that since he has taken all the necessary pretrial steps and is prepared to make numerous concessions, the trial of his client will be a simple one-day affair in provincial court, where he would elect to be tried. He has been ready to set a trial date since April 2024.
11Mr. Stastny argues that there is significant prejudice to Mr. Francis in having to wait for Ms. Campbell to secure representation. He has been in custody since February 18, 2024. This prejudice far outweighs the prejudice to the administration of justice posed by the risk of inconsistent verdicts.
12There is little prejudice to the witnesses since there will be so few, and any witnesses are likely to be police officers.
13He further argues that the principles set out in R. v. Jordan support an order of severance thus expediting the trial against Mr. Francis.
14Ms. Campbell listened to oral argument and when asked her position said that she would prefer to be tried together with Mr. Francis.
15Ms. McNamara argues that the video demonstrates that the co-accused are acting in concert and that this weighs in favour of a joint trial. She also points out that severance would make Ms. Campbell compellable as a witness in the Francis case and that would prejudice her.
16Finally, she points out the possibility of inconsistent verdicts, i.e. where the trial judge in the Francis trial (which would naturally go first) comes to a different conclusion on party liability than does the Campbell trier of fact.
E. Analysis
17Section 591(3)(b) of the Criminal Code states:
The court may, where it is satisfied that the interests of justice so require, order
(b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts.
18As Mr. Stastny sets out in his factum, joint trials are typically preferred as they prevent inconsistent verdicts, use court resources more efficiently, and prevent inconvenience to witnesses. Severance should not be ordered unless the failure to do so will result in an injustice to a defendant: R. v. Crawford, [1995] 1 S.C.R. 858 at paras. 34–35. Where a party wishes to sever other parties, the onus is on that party to show that the interests of justice require severance: R. v. Zaza, 2021 ONSC 2780, par. 14, citing R. v. McNamara, [1981] O.J. No. 3254 (Ont C.A.) at par. 118.
19In R. v. Last, [2009] 3 S.C.R. 146, at par. 18 the Supreme Court of Canada identified a non-exhaustive list of factors that courts ought to consider in determining the issue of severance of parties:
a) The general prejudice to the accused; b) The complexity of the evidence; c) The possibility of inconsistent verdicts; d) The desire to avoid a multiplicity of proceedings; e) The use of similar fact evidence at trial; f) The length of the trial having regard to the evidence to be called; g) The potential prejudice to the accused with respect to the right to be tried within a reasonable time; and, h) The existence of antagonistic defences as between co-accused persons.
20In my view, the prejudice to Francis in having to wait in custody while Ms. Campbell takes the steps necessary to retain counsel, and for that counsel to get prepared for trial far outweighs the possible prejudice to Ms. Campbell and the Crown that might be occasioned by a severance. The worst-case scenario for the Crown would be that she would have to prove party liability twice in two short trials.
21As for the interests of the administration of justice, the need for two simple trials is not a significant burden and the risk of inconsistent verdicts is not particularly worrisome.
22Nor am I of the view that the risk that Ms. Campbell might be compelled to testify at Francis’s trial presents any real prejudice to her, in light of the Charter protection she will enjoy regarding her compelled testimony.
23Applying the principles in Last, I find that not ordering severance would result in an injustice to Mr. Francis. The two accused will be severed.
Released on September 3, 2024 Justice Russell Silverstein