Court File and Parties

Date: October 15, 2019

Court File No.: 19-1037

Ontario Court of Justice

Between:

Her Majesty the Queen Respondent

-and-

James Ronald Christie Applicant

Before: Justice Michael G. March

Application for Severance Heard on: October 15, 2019

Reasons for Judgment Released Orally on: October 15, 2019

Counsel

Timothy McCann — Counsel for the Federal Crown

Sherri Beattie — Counsel for the Accused

Reasons for Judgment

March, M.G., J.:

Background and Charges

[1] The Applicant, Mr. Christie, stands charged with one count of possession of a controlled substance and trafficking in a controlled substance contrary to ss. 4(1) and 5(1) of the Controlled Drugs and Substances Act ("CDSA") respectively. He is jointly charged with one Ronald Haybecker. Pursuant to s. 591(3) of the Criminal Code, Mr. Christie seeks severance of his charges from those of Mr. Haybecker.

Factual Background

[2] By way of factual background, Mr. Christie was the driver of a vehicle pulled over on May 11, 2019 at a R.I.D.E. program in Arnprior. Mr. Haybecker, his co-accused, was his front seat passenger.

[3] Mr. Christie misidentified himself. He could not produce I.D. He was arrested by Cst. Chirke of the O.P.P. for "Failure to Provide I.D." under s. 33(3) of the Highway Traffic Act. He was searched incident to arrest. In his front jean shorts pocket, Cst. Chirke located a glass crack pipe and blue capsule containing what police believed to be cocaine, but was later determined to be methamphetamine. Upon arrest for the drugs, Mr. Christie properly identified himself. Police then learned he was a suspended driver.

[4] Cst. Chirke informed his partner, Cst. Jean-Louis, of the CDSA arrest of Mr. Christie and his ground to search the vehicle in question. Cst. Jean-Louis approached the passenger side of the vehicle. He noticed that the passenger, who later identified himself as Mr. Haybecker, was attempting to conceal an open can of beer. Cst. Jean-Louis asked Mr. Haybecker to step out. He did. Underneath the front passenger seat, Cst. Jean-Louis located a box containing a purple change purse. In the purse were three dime bags of white pills believed to be speed (i.e. methamphetamine), and two blue Bud Light capsules. The capsules contained the same type of pills.

[5] Cst. Jean-Louis arrested Mr. Haybecker for trafficking upon discovery of the pills. The officer asked whose pills they were, which he had just found under the seat. Mr. Haybecker claimed ownership of them.

[6] Cst. Jean-Louis then provided rights to counsel to Mr. Haybecker. The officer cautioned Mr. Haybecker as well.

[7] Upon questioning by police again as to whose pills were found under the seat, Mr. Haybecker reiterated they were his. He said he received them from a buddy. Cst. Jean-Louis then asked Mr. Haybecker if "his buddy" was the driver of the vehicle in question (i.e. Mr. Christie), and if Mr. Christie was dealing with Mr. Haybecker. Mr. Haybecker responded, "I do it all myself."

Legal Framework for Severance

[8] The Defence seeks severance relying heavily upon the decision of the Court of Appeal for Ontario in R. v. Savoury, [2005] O.J. No. 3112. In Savoury, Doherty J. held at paras 22 and 23:

[22] A 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), 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. ….

[23] In 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.

[9] The factual underpinnings in Savoury are very much akin to the facts in the case at bar.

[10] In paragraph 28 of Savoury, Doherty J. set out the tests for severance of co-accused as follows:

[28] Where 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?

[11] The tests do not set a high threshold for the defence to meet particularly on the facts of this case.

Court's Analysis

[12] The Federal Crown argues that multiplicity of proceedings should be avoided. I agree. Indeed, I would hold that there is a presumption in favour of joint trials where one set of facts give rise to charges being laid against more than one accused. Joint trials preclude the possibility of disparate findings being made by different triers of fact. Witnesses are less inconvenienced if only called upon to testify once. Further, joint trials save the administration of justice significant time and expense.

[13] The Federal Crown submits as well that it wishes to make the argument that Mr. Christie had knowledge and control of the vehicle in which the purse full of pills was found. Frankly, I fail to see how that Crown theory of criminal liability in a separate trial for Mr. Christie cannot be pursued.

[14] I find that in the circumstances of this case, the interests of justice require separate trials. Mr. Christie's inability to call Mr. Haybecker in a joint trial will prejudice his right to make full answer and defence. Mr. Christie's interest in having potentially exculpatory evidence presented for consideration by the trier of fact trumps the inconvenience to the community at large in securing the fair and efficient administration of justice in a joint trial. None of the factors set out in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, a decision of the Supreme Court of Canada, persuade me to do otherwise.

Order

[15] Accordingly, I shall order that Mr. Christie's charges be severed from Mr. Haybecker, such that his trial shall proceed following Mr. Haybecker's, which I understand is presently set for February 13, 2020.

Dated: October 15, 2019

March, M.G., J.