Court Information

Ontario Court of Justice

Date: 2017-04-10

Court File No.: Newmarket 15-0776

Between:

Her Majesty the Queen

— and —

Jeffrey Shuman

Before: Justice David Rose

Heard on: March 13, 2017

Reasons for Judgment released on: April 10, 2017

Counsel

Ms. Montemurro and Mr. Giordano — counsel for the Crown

Mr. Proudlove and Ms. VanderHeyden — counsel for the accused Jeffrey Shuman

Judgment

ROSE J.:

Application for Severance

[1] Mr. Shuman appeared before me on March 13, 2017 on a 30 Count Information. The Crown withdrew Count 21 and Mr. Shuman pleaded not guilty to all charges. Mr. Proudlove then brought an Application for Severance of the counts under s. 591(3) of the Code. Because of the nature of the Application I will outline briefly the charges against Mr. Shuman.

Charges

Count 1 Robbery with a handgun on 3 February 2010 in Richmond Hill;

Count 2 Robbery with an imitation handgun on 3 February 2010 in Richmond Hill;

Count 3 Robbery on 4 February 2010 in Markham;

Count 4 Robbery with a firearm on 7 June 2010 in Markham;

Count 5 Using an imitation firearm while committing Robbery on 7 June 2010 in Markham;

Count 6 Robbery on 11 June 2010 in Vaughan;

Count 7 Robbery using a handgun on 20 August 2010 in Vaughan;

Count 8 Use of an imitation firearm while committing Robbery on 20 August 2010 in York Region;

Count 9 Use a Firearm to commit robbery on 20 August 2010 in Vaughan;

Count 10 Use an imitation firearm while committing robbery on 20 August 2010 in Vaughan;

Count 11 Use a Firearm to commit robbery on 30 August 2010 in Mississauga;

Count 12 Use an imitation firearm while committing robbery on 30 August 2010 in Mississauga;

Count 13 Robbery on 1 September 2010 in Mississauga;

Count 14 Use a Firearm to commit robbery on 9 September 2010 in Hamilton;

Count 15 Use an imitation firearm while committing robbery on 9 September 2010 in Hamilton;

Count 16 Robbery on 11 September 2010 in York;

Count 17 Use a Firearm to commit robbery on 4 May 2011 in Vaughan;

Count 18 Use an imitation firearm while committing robbery on 4 May 2011 in Vaughan;

Count 19 Use a Firearm to commit robbery on 8 May 2011 in Ottawa;

Count 20 Use an imitation firearm while committing robbery on 8 May 2011 in Ottawa;

Count 22 Robbery on 18 September 2012 in Richmond Hill;

Count 23 Face Masked with intention to commit robbery on 18 September 2012 in Richmond Hill;

Count 24 Use a Firearm to commit robbery on 4 October 2012 in Richmond Hill;

Count 25 Use an imitation Firearm to commit robbery on 4 October 2012 in Richmond Hill;

Count 26 Face masked commit robbery on 4 October 2012 in Richmond Hill;

Count 27 Use a Firearm to commit robbery on 5 May 2014 in Toronto;

Count 28 Use an imitation Firearm to commit robbery on 5 May 2014 in Toronto;

Count 29 Use a Firearm to commit robbery on 8 May 2015 in Mississauga;

Count 30 Use an imitation Firearm to commit robbery on 8 May 2015 in Mississauga;

Crown's Evidence Chart

[2] For purposes of argument, the Crown provided a chart of anticipated evidence regarding these charges. The chart is within the Crown Response to Mr. Proudlove's application. It groups the charges into 17 different events, each of which is a bank robbery, and summarizes the anticipated evidence on each relative to several facts, namely:

• the timing of the robbery relative to Mr. Shuman's arrival in Canada;
• the type and location of the bank;
• the time of the robbery;
• things said during the robbery;
• the clothes and eyewear worn by the culprit;
• the culprit's gender, age and height.

For purposes of this Application Mr. Proudlove fairly concedes that the Crown is in a position to call this evidence on the charges before me. The Chart and Mr. Proudlove's concession were helpful to me in this Application.

Similar Fact Evidence Application

[3] As part of its response, the Crown applies to have evidence of each count in the Information admitted on a count to count basis. The grounds for making this Application are outlined in a separate Application and factum. This is relevant to the severance Application because there is now a similar fact Application before the court.

Legal Test for Severance

[4] Applications to sever the counts under s. 591 of the Criminal Code must ultimately ask and answer the question of whether severance is required in the interests of justice, which encompass the accused right to be tried on the evidence admissible against him, as well as society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.

See R. v. Last, 2009 SCC 45 at par. 16

Factors to Consider

[5] Factors which must be examined in order to decide this question include, again from Last at par. 17:

i) the general prejudice to the accused;

ii) the legal and factual nexus between the counts;

iii) the complexity of the evidence;

iv) whether the accused intends to testify on one count but not another;

v) the possibility of inconsistent verdicts;

vi) the desire to avoid a multiplicity of proceedings;

vii) the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called;

viii) the potential prejudice to the accused with respect to the right to be tried within a reasonable time;

ix) and the existence of antagonistic defences as between co-accused persons.

Similar Fact Evidence at Severance Stage

[6] When there is an Application to admit similar fact evidence on a count to count basis, the trial judge hearing a severance Application must consider the similar fact Application on only a preliminary basis. I can do no better than to quote Paciocco J. (as he then was) from R. v. Brahaney, 2016 ONCJ 132 at par. 22:

Trial judges conducting severance applications are not to resolve the admission of similar fact evidence at the severance application stage for practical reasons having to do with the inadequacy of the evidentiary foundation, and because the accused bears the burden on a severance application, whereas the Crown bears the burden at trial of satisfying the similar fact evidence rule. Accordingly, during a severance motion the trial judge is simply to determine whether a "count-to-count" similar fact evidence application is viable: R. v. Wilson, supra; R. v. Minister, 2012 ONSC 1040, [2012] O.J. No. 741 (Ont. S.C.J.) at para 46; R. v. B. (I.), [2013] O.J. No. 1615 (Ont. S.C.J.) at para 26.

Viability of Similar Fact Evidence Application

[7] Is the Crown's count to count similar fact evidence application viable, or possibly admissible (see R. v. Carson, 2015 ONSC 3189)? It should be emphasised that both the Crown and defence agree that the real issue to be decided at Mr. Shuman's trial is identity. There appears to be no question that the events which are alleged in the Information were robberies using, in most cases, a firearm or imitation firearm.

[8] The Crown application is that the probative value of the count to count similar fact evidence is to prove identity alone. Similarities and dissimilarities must be examined, as well as the proposed purpose, the accused' linkage to the acts, the strength of the evidence and the extent to which the proposed evidence supports the inference sought from it. That probative value must be compared to the prejudicial effect of the evidence, including the possibility of moral prejudice and reasoning prejudice see. R. v. Arp, [1998] S.C.R. No. 339; R. v. Handy, 2002 SCC 56, [2002] SCJ 57; R. v. MacCormack, 2009 ONCA 72, [2009] O.J. No. 302 (C.A.).

[9] This case is in its very early stages. No evidence has been called. For that reason I will limit my comments on the Crown's proposed similar fact evidence Application except to say that I am satisfied that it is viable. I must emphasise again that this is not a case where the Crown seeks to admit extrinsic similar fact evidence but only asks that I consider the evidence on one count as similar fact evidence on the others. This is in the nature of a legal charge, as opposed to the admission of evidence from other events.

Application of Last Factors

[10] With that finding in place, considering the factors in R. v. Last, has the Applicant met the test that the interests of justice require an order for severance? I take the Last factors in turn.

i) The General Prejudice to the Accused

In his submissions Mr. Proudlove describes a trial on 30 Counts of Robbery as monolithic. I do not agree. There are 17 different occurrences, spanning a period of over 5 years. I would describe this as a long trial, but not uncommon in this court. The Crown appears to have organized its case. I am satisfied that there is no general prejudice which supports severance.

ii) The Legal and Factual Nexus Between the Counts

All counts appear to be bank robberies sometimes with a handgun of financial institutions in the Greater Toronto area. In some cases no cash was taken, and in others a great deal was. This does not appear to be a case where the charges are significantly different in nature from each other.

iii) The Complexity of the Evidence

Both Crown and defence agree that, as an identity case, I will be asked to consider R. v. Nikolovski, 111 C.C.C. (3d) 403 (S.C.C.); R. v. Leany, [1989] 2 S.C.R. 393 and the similar fact evidence. Ms. Montemurro was candid in her submissions that the crown has a very strong case of identity of one the charges and will be arguing that all of the robberies were committed by the same culprit. I would not describe that as so complex that it calls for separate trials.

iv) Whether the Accused Intends to Testify on One Count But Not Another

No evidence has been called yet and Mr. Shuman will not be called on to elect to call evidence until some time in the future.

v) The Possibility of Inconsistent Verdicts

Were the counts to be severed it might well lead to different verdicts. The Crown has asserted that if the counts are severed, it will simply ask that its similar fact evidence application be heard as an application to admit the robberies off the Information. That would require separate applications on the same evidence and potentially different rulings.

vi) The Desire to Avoid a Multiplicity of Proceedings

There is a serious problem with severing the counts insofar as an off the Information similar fact evidence application may well lead to evidence being called more than once. A joint trial will avoid that happening.

vii) The Use of Similar Fact Evidence at Trial; The Length of the Trial Having Regard to the Evidence to be Called

I have found that the Crown application is viable. This factor supports a joint trial.

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

A severed trial will push back Mr. Shuman's trial date on some charges. This is to be avoided, especially in the wake of R. v. Jordan, 2016 SCC 27.

ix) The Existence of Antagonistic Defences as Between Co-Accused Persons

This factor is not applicable.

Decision

[11] It is clear that all applicable factors to be considered support a joint trial on all charges. I have no difficulty in finding that it is not in the interests of justice to sever any of the charges. The Application is dismissed.

Released: April 10, 2017

Signed: Justice David Rose