Court Information

Court File No.: Not provided

Date: October 27, 2014

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— and —

Vinbert Samuels

Before the Court

Justice: Heather McArthur

Reasons for Judgment released: October 27, 2014

Counsel

For the Crown: B. Cohen

For the Accused: M. Grossman

Decision

McArthur, J.:

A. Introduction

[1] Mr. Vinbert Samuels is facing charges in relation to two separate break and enters.

[2] On September 14, 2013, a man entered the garage at 40 Berkindale Drive, Toronto and ransacked through three cars. He stole a number of items. A video surveillance system captured images of the perpetrator. The Crown alleges that Mr. Samuels is this man. At trial, the Crown will attempt to establish this beyond a reasonable doubt pursuant to R. v. Nikolovski, [1996] 3 S.C.R. 1197. There will be no other evidence; the Crown will rely solely on the images and urge me as the trial judge to compare them to Mr. Samuels and find that I am convinced beyond a reasonable doubt that Mr. Samuels is that man.

[3] On September 21, 2013, a man entered the garage at 11 Portsmouth Road, Toronto and stole a bicycle and a fuel container. A video surveillance system captured images of this man. Again, the Crown will attempt to prove that this perpetrator is Mr. Samuels, relying solely on R. v. Nikolovski, supra.

[4] On September 29, 2014, the defence brought an application for severance. Defence counsel submits that a trial judge should not make more than one Nikolovski determination for any one accused, nor should a trial judge hear evidence with respect to a different count after making a Nikolovski determination. Thus, he argues, the interests of justice require a severance in the circumstances of this case. The Crown counters that there is no prejudice to the accused in having the matters tried together and a proper weighing of all relevant factors militates against severance. For the reasons that follow, I find that the interests of justice do not require severance of the counts and the application is dismissed.

B. Applicable Legal Principles

[5] Pursuant to s.591(1) of the Criminal Code, the Crown may join "any number of counts for any number of offences" in the same indictment[1]. As noted by the Supreme Court of Canada in R. v. Last, [2009] 2 S.C.R. 146, this section places no restrictions on the number of counts that can be tried together on a single indictment and the Crown enjoys a large discretion in deciding to include more than one count.

[6] Despite this wide discretion, pursuant to s.591(3) of the Code, a court may order that the accused be tried separately on one or more of the counts "where it is satisfied that the interests of justice so require". The accused bears the onus of establishing on a balance of probabilities that severance is required in the interests of justice. The interests of justice encompass the accused's right to be tried on the evidence admissible against him or her, as well as society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner. (R. v. Last, supra, para. 16)

[7] In R. v. Last, the court identified a non-exhaustive list of factors to be considered when deciding whether to sever or not. The factors include:

• The factual and legal nexus between the counts
• The use of similar fact evidence at trial
• The complexity of the evidence
• The possibility of inconsistent verdicts
• The desire to avoid a multiplicity of proceedings
• The length of the trial having regard to the evidence to be called
• The potential prejudice to the accused with respect to the right to be tried within a reasonable time
• The existence of antagonistic defences as between co-accused persons
• Whether the accused intends to testify on one count but not another
• The general prejudice to the accused

[8] I propose to address each of the factors, and then turn to a balancing of the factors in my assessment of the interests of justice.

C. Analysis

The Factual and Legal Nexus Between Counts

[9] A factual nexus often refers to a continuity of events, time and means. When there is a clear factual nexus, the logic of a joint trial is more compelling than where there are multiple sets of events, linked together only by the identity of the party charged and the place where the events occurred. (R. v. J.C.L., 2012 ONSC 6603, [2012] O.J. No 5533 at para. 16-17.)

[10] In this case, there is slim to no factual nexus between the counts. Thus, this factor does not weigh in favour of a joint trial. In my view, this factor is neutral in the severance assessment.

[11] In terms of a legal nexus, the essential elements of the offences are the same. The same legal issue is raised in both sets of counts; identification of the perpetrator by way of video surveillance. In my view, subject to any risk of prejudice that might arise from my undertaking more than one Nikolovski assessment, which I will address later in my reasons, the legal nexus in the present case weighs in favour of a joint trial.

Use of Similar Fact Evidence

[12] The Crown will not be bringing a similar fact application. If the Crown successfully argued a similar fact application, that would militate in favour of a joint trial. In my view, however, the absence of a similar fact application does not suggest that the interests of justice require severance. Rather, it renders this factor neutral in the overall assessment of whether severance should be granted.

The Complexity of the Evidence

[13] Here, the evidence is not complex. It is a straightforward case. In my view, the simplicity of the case does not weigh in favour of either a joint trial or severance. Instead, this factor is neutral in the severance assessment.

The Possibility of Inconsistent Verdicts

[14] Different verdicts with respect to the two different break and enters would not be an inconsistency. In my view, this fact does not weigh in favour of either a joint trial or severance. Again, this factor is neutral in the severance assessment.

The Desire to Avoid a Multiplicity of Proceedings and the Length of Trial Having Regard to the Evidence Called

[15] In the present case, I am told that there will be little or no overlap of witnesses. It is unlikely that any witness would be required to testify twice if I granted the severance application. Thus, this does not militate in favour of a joint trial. There would, however, be some benefit to the administration of justice if there were only one proceeding. If there are two separate trials, legal submissions relating to the Nikolovski issue would have to be repeated by both the Crown and defence. As a result, two separate trials would likely take longer than one trial. That said, any savings to court resources from a joint trial would be slight. Thus, while this factor does weigh somewhat in favour of a joint trial, it plays a minimal role in the overall assessment.

The Potential Prejudice to the Accused with Respect to the Right to be Tried Within a Reasonable Time

[16] Neither party made submissions about this issue. That said, this is an extremely busy courthouse. There would likely be some delay if I granted severance. Thus I find that this factor bears some minimal weight in favour of a joint trial.

The Existence of Antagonistic Defences

[17] This factor is irrelevant in the context of this case, as Mr. Samuels is alone on the information.

Whether the Accused Intends to Testify on One Count but not the Other

[18] In oral submissions, defence counsel conceded that he could not say that the accused intended to testify on one count but not the other. Thus, this factor does not weigh in favour of severance.

The General Prejudice to the Accused

[19] When assessing the issue of prejudice, the question to be asked is whether there is a risk that the accused will not get a fair trial. The Court must assess both moral prejudice and reasoning prejudice. The risk of moral prejudice arises when evidence may be taken by the trier of fact as proof of bad character rather than for its intended purpose, and from there as proof that the accused is the kind of person who would be likely to commit the offence. With respect to reasoning prejudice, the concern is whether evidence that is properly admissible on one count may confuse or distract the trier of fact with respect to other counts.

[20] Here, defence counsel focuses his submissions on the risk of moral prejudice. Counsel submits that if a trier of fact finds that an accused is a perpetrator displayed on video images, that there is a real potential that this will be used as evidence that the accused is the kind of person to commit such offences. This in turn, he argues, could affect the assessment of whether the accused is depicted in images from other crimes. Defence counsel argues that it is analogous to a judge making an adverse credibility finding against an accused, and then being asked to hear a new trial with respect to the same accused. This, he argues, would not be allowed. He submits the same reasoning applies to a situation where a trier of fact would be called upon to make more than one Nikolovski determination.

[21] I am not persuaded by the defence submission for three reasons.

[22] First, there is no absolute prohibition against a judge who has made an adverse credibility finding against an accused from hearing a trial with the same accused. (See for example, R. v. Werner, 2005 NWTCA 5; R. v. Novak, [1995] B.C.J. No 1127; R. v. James, 2000 BCCA 616, 149 C.C.C. (3d) 534)

[23] Second, even if there is some reason to say that a judge should not hear a trial after making an adverse credibility assessment, in my view, the issues involved in making a Nikolovski determination are quite different. With the Nikolovski, a judge is required to look at particular images to determine the degree of clarity and quality of the tape, whether the perpetrator is clearly depicted and the length of time the perpetrator is pictured. A finding that one set of images may be of good quality and provide a clear image of the perpetrator will have nothing to do with the assessment of the second video. The judge will be required to conduct a completely distinct assessment with respect to any other surveillance images. In my view, this is not at all analogous to a previous adverse finding of credibility against an accused.

[24] Finally, judges are required to take oaths to behave and reason judicially. (see R. v. N.C.B., [2012] A.J. 785 (Alta.C.A.) at para. 19) Our system is premised on the belief that judges will honour their oath, and, through training and experience, be able to disabuse their minds of inadmissible evidence. It is for this reason that there is no absolute prohibition against a judge hearing a trial after making a negative credibility finding. Moreover, judges are often called upon to hear evidence, and then not consider that evidence in determining whether the case has been made out. For example, judges rule confessions inadmissible and continue to hear the trial. Judges exclude evidence after successful Charter applications, and continue to hear the trial. That is because, as Watt J. said for our Court of Appeal in R. v. J.M., 2010 ONCA 117, [2010] O.J. No 585 at para. 88, "In trials by judge alone, like this case, the danger that a conviction will be rooted in either reasoning or moral prejudice is significantly lessened".

[25] It is well established that the trier of fact cannot use evidence on one count as evidence on other counts. Where there are multiple charges against an accused, the evidence with respect to each count must be considered separately unless the test for similar fact evidence is met. There is a presumption that a judge will know the law and apply it dispassionately. In my view, as a judge I will be fully able to keep the evidence between the two sets of offences distinct. In light of all of the above, in my view, any risk of moral or reasoning prejudice has been diminished to the point of vanishing. (See R. v. MacCormack, 2009 ONCA 72, [2009] O.J. No.302 at para. 69)

D. Overall Balancing of the Factors

[26] In this case, many of the factors are either neutral, or bear only minimal weight in the analysis. Aside from a basic legal nexus, and some slight savings to court resources, there is really not much to militate in favour of a joint trial. On the other hand, I can see no prejudice to the accused in having a joint trial.

[27] In my view, in this situation, it is important to keep in mind the wide discretion given to the Crown by virtue of s.591(1). While there may be only minimal benefit in having a joint trial, the Crown is entitled to join counts unless the defence can show that the interests of justice require severance. When there is no general prejudice to the accused in having one trial, and the other factors are neutral, or minimally favour a joint trial, then in my view severance is not warranted.

[28] Thus, I find that the defence has failed to establish on a balance of probabilities that the interests of justice require severance and the application is dismissed.

Disposition

[29] Date: October 27, 2014

Signed: Justice Heather McArthur

Footnote

[1] This is subject to section 589, which provides that charges other than murder shall not be joined with a murder charge unless the offence arises out of the same transaction or the accused consents to joinder.