Ontario Court of Justice

Date: 2024 07 16 Court File No.: Hamilton 24-47101105

Between:

HIS MAJESTY THE KING

— AND —

DANIEL MAY

Before: Justice J.P.P. Fiorucci

Heard on: July 4 and 9, 2024 Ruling on the Crown’s Application for Adjournment released on: July 16, 2024 [1]

Counsel: Igor Osowski and Matthew Moser................................................. counsel for the Crown Larissa Fedak.......................................................... counsel for the accused Daniel May

FIORUCCI J.:

Introduction

[1] On February 20, 2024, police responded to a violent home invasion robbery in Hamilton. Police officers chased four male suspects seen leaving the residence. Only two males were arrested and charged on February 20: Daniel May and Sefer Korkusuz. They were jointly charged on one information with offences including break and enter a dwelling house and commit robbery, and two counts of uttering a threat to cause bodily harm.

[2] Mr. Korkusuz has entered guilty pleas to resolve his charges. Mr. May elected to proceed to trial in the Ontario Court of Justice. On June 4, 2024, within three and a half months of being charged, Mr. May scheduled his trial dates: July 16, 18 and 19, 2024. The Crown accepted these dates. Mr. May is in custody awaiting his trial. He is represented by counsel.

[3] After the arrests of Mr. May and Mr. Korkusuz, the police investigation continued. On June 12 and 13, two new suspects were arrested and charged on a separate information with offences related to the home invasion.

[4] The Crown has applied to adjourn Mr. May’s trial saying that it intends to lay a joint information to try Mr. May together with the newly charged accused persons. No joint information was placed before the Court on the hearing of this adjournment application. Mr. May is opposed to the Crown’s adjournment application; he and his counsel are prepared to proceed to trial.

Overview of the Crown’s Case

[5] On February 20, 2024, Justine Gill heard a female screaming for help and it sounded like the door to 45 Nightingale Street, Unit 1, Hamilton had been kicked in. Ms. Gill called 911. Police responded to the area and a second 911 call was received from a nearby resident, Tara Howe. Ms. Howe reported that the victim, Annette Cooper, was on her porch, was very frightened and acting paranoid.

[6] Patrol officers who responded to the calls observed two men exiting the back door of 45 Nightingale Street. A third male was seen exiting the front door. Constable Innes began chasing the two males from the rear and provided descriptions of the male suspects.

[7] Detective Constables Gauthier and Bouwers were in the area and heard the call being broadcasted. The suspects were last seen around 86 Century Street, Hamilton, after going northbound on Wentworth Street North. Detective Constables Gauthier and Bouwers located two males in the alley behind 75 Wentworth Street North. Both males turned and ran away from the police officers.

[8] At 11:06 a.m., Mr. Korkusuz was arrested in the backyard of 452 Cannon Street East, Hamilton for break and enter and failure to comply with a probation order that required him to keep the peace and be of good behaviour.

[9] At 11:06 a.m., Constable Innes located Mr. May, one of the males she had been chasing, and arrested him for break and enter and other offences related to the possession of a pair of brass knuckles. Mr. May was also found to be in possession of red gloves.

[10] Police obtained witness statements from two victims, Ms. Cooper and Nicholas Cipparone. Ms. Cooper told police that she had been in the bathroom when the door to her apartment was kicked in and five suspects entered the unit, demanding money, jewelry, and drugs. One of the suspects, believed to be Mr. Korkusuz assaulted her by punching her in the face while holding a small crowbar in his other hand.

[11] The suspects threatened to shoot Mr. Cipparone and Ms. Cooper with a gun if they didn't cooperate, but no firearm was observed. The unit was ransacked, and valuables were removed including at least two tablet computers. Ms. Cooper was able to escape when the suspects were in the kitchen and not watching her. She fled to a nearby address for assistance. Ms. Cooper described one of the suspects as wearing red gloves.

[12] Mr. Cipparone is legally blind and was not able to provide a description of the suspects. However, he provided a statement that corroborated the information provided by Ms. Cooper. Mr. Cipparone was ordered to stay on the bed and not to move. He did so with his hands raised. A black duffle bag containing Mr. Cipparone's wallet, keys and a Frank Gore San Francisco 49ers football jersey were among the items that were stolen.

[13] A Canine article search revealed several discarded pieces of evidence including a large knife, meat cleaver, brass knuckles, an iPad with blood on it, a balaclava, frozen meat, and prescription pill bottles in Ms. Cooper's name.

[14] Police seized video from the area. A review of the video evidence suggests that there were four suspects in total. The Crown says that the clothing found on Mr. Korkusuz and Mr. May matched the suspects that were captured on video both leading up to and after the incident. Constable Baglieri also confirmed that Mr. Korkusuz and Mr. May were the same males fleeing from the residence upon police arrival.

[15] Mr. Korkusuz and Mr. May were both given an opportunity to speak with their lawyers of choice. Neither Mr. Korkusuz nor Mr. May provided a statement to police.

[16] Counsel advised that the arrests of the two new accused persons on June 12th and 13th were prompted by DNA matches on articles of evidence that originated from 45 Nightingale Street, Unit 1. The two new accused were charged together on a joint information; a separate information from Mr. May.

Positions of the Parties

[17] The Crown says it is seeking to vacate Mr. May’s July trial dates so that a joint trial with all co-accused can be scheduled. The Crown raises two related grounds for the adjournment: (i) the police investigation has resulted in the arrest of two additional accused in relation to these charges and the Crown intends to lay a joint information to try Mr. May together with them; and (ii) the Crown says that having two separate trials is contrary to the interests of justice because it requires the Crown to prove the case twice which is a waste of resources and it permits the accused to appear at each others’ trials to frustrate the fact finding purpose of the court. The Crown notes that the charges involve a violent home invasion robbery involving two vulnerable victims which favours one trial.

[18] In oral submissions, Crown counsel argued that this is solely an application to adjourn Mr. May’s trial and should be decided as such. Issues such as his detention pending trial or judicial interim release, s. 11(b) of the Charter, or severance are peripheral to the application says the Crown. Nonetheless, the Crown relies heavily on the general rule that persons jointly charged with the commission of an offence, particularly where the prosecution asserts that the accused were engaged in a common enterprise, should be tried together.

[19] The Defence says that Mr. May moved expeditiously to retain counsel, to conduct a Crown pre-trial and a judicial pre-trial, and to elect his mode of trial and schedule the trial dates. The Crown agreed to the trial dates, notwithstanding that the Crown was aware of the continuing investigation including the fact that items of evidence had been sent for forensic analysis. The Defence says that, in deciding the Crown’s application, it is entirely appropriate for the Court to consider Mr. May’s s. 11(b) rights, his detention pending trial, and the fact that his counsel of choice may not be available if the trial dates are adjourned.

[20] Furthermore, the Defence argues that there is no guarantee that a joint trial will ever take place. There is no indication that the newly charged accused have even retained counsel or indicated an intention to enter pleas of not guilty and proceed to trial.

Legal Principles

Adjournments

[21] Section 571 of the Criminal Code states that a provincial court judge can adjourn a trial from time to time until the trial is finally terminated.

[22] In R. v. Siddiqui, 2022 ONCJ 62, Justice Jones of the Ontario Court of Justice provides a helpful summary of the law relating to adjournments, albeit in the context of an application by accused persons to adjourn their trial due to missing disclosure. [2]

[23] The following legal principles emerge from Justice Jones’ review of the authorities and the caselaw cited in his decision:

(1) Where a party to a criminal proceeding seeks an adjournment, two important considerations must be balanced: (a) the fair trial interests of the accused, including his right to make full answer and defence; and (b) the court’s obligation to control the trial process; [3]

(2) A number of concepts are subsumed in protecting the trial process, including both the accused’s and the public’s interest in having criminal cases disposed of on their merits in an expeditious and efficient manner; [4]

(3) Section 11(b) Charter considerations are applicable to applications for adjournment. Efficient and fair justice is inextricably linked to timely justice, and this is one factor that must be considered when an adjournment request is made. When trials are held promptly, they enjoy “the confidence of the public”. Delayed justice can result in denied justice; witnesses are vulnerable to fading memories and disappearance and accused individuals are vulnerable to having their security and liberty impacted much longer than necessary. Delays in trials can lead to consequences for the accused and for the “public interest in the prompt and fair administration of justice”; [5]

(4) Other factors to balance in the just determination of an adjournment request include the reasonableness and timeliness of the request and the grounds for the request. The court should consider the prejudice that might arise to either party as a result of an adjournment or refusal to adjourn. The right to a fair trial and the integrity of the administration of justice should also factor into the ultimate determination of the adjournment request. It is proper for the trial judge when asked for a postponement to consider other relevant circumstances such as the gravity of the charges, the number of previous postponements and the consequences of a postponement for the accused; [6]

(5) The decision to fix a date for trial is discretionary and in choosing to fix a date the court must act judicially and balance a number of factors including the availability of an accused’s counsel of choice within a reasonable period of time. Many of the same factors come into play in decisions whether to adjourn a trial date to permit an accused’s counsel of choice to be available. The emphasis is on the reasonableness of the delay involved in accommodating the accused’s choice; if the counsel of choice is not available within a reasonable time, then the rights of the accused must give way to other considerations and the accused will be required, if he or she chooses to be represented, to retain another counsel who is available within a reasonable period of time; [7]

(6) A decision to grant or deny an adjournment involves the exercise of judicial discretion. It requires consideration of all of the circumstances in the case to determine what is in the best interests of the administration of justice; [8]

(7) The onus is on the party seeking an adjournment to establish the grounds for it; [9]

(8) An adjournment application is not a trial, and the strict rules of evidence do not apply. It is commonplace for judges to rely upon hearsay information and the submissions of counsel when deciding adjournment applications. [10]

Joint Trials and Severance

[24] In R. v. Crawford; R. v. Creighton, 1995 SCC 138, the Supreme Court of Canada set out the principles relating to joint trials and severance:

30 There exist, however, strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly. The policy reasons apply with equal or greater force when each accused blames the other or others, a situation which is graphically labelled a "cut-throat defence". Separate trials in these situations create a risk of inconsistent verdicts. The policy against separate trials is summarized by Elliott, supra, at p. 17, as follows:

There is a dilemma here which could only be avoided by separate trials. But separate trials will not be countenanced because, quite apart from the extra cost and delay involved, it 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. If each alleged participant is tried separately, there are obvious and severe difficulties in arranging for this to happen without granting one of them immunity. In view of this, in all but exceptional cases, joint trial will be resorted to, despite the double bind inevitably involved.

31 Although the trial judge has a discretion to order separate trials, that discretion must be exercised on the basis of principles of law which include the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused. The mere fact that a co-accused is waging a "cut-throat" defence is not in itself sufficient. In Pelletier, supra, a co-accused was permitted to cross-examine another accused on a statement to the police that had not been proved to be voluntary. On appeal of his conviction he contended that if he had been tried separately the cross-examination would not have been permitted. On this basis he claimed that the trials should have been severed. In dismissing this ground, Hinkson J.A., on behalf of the court, stated, at p. 539:

On this point it is necessary to keep in mind that the trial judge has a discretion as to whether or not he will grant a severance. The general rule of severance is that persons engaged in a common enterprise should be jointly tried unless it can be demonstrated that a joint trial would work an injustice to a particular accused: R. v. Black and six others, [1970] 4 C.C.C. 251 at pp. 267-8, 10 C.R.N.S. 17 at pp. 35-6, 72 W.W.R. 407. In this case, the trial judge was not persuaded that it was appropriate to grant a severance. I do not conclude that he erred in the exercise of his discretion.

32 As I pointed out above, neither party to this appeal contended that the solution to the problem is to order separate trials whenever the full exercise of the right to make full answer and defence by one accused appears to collide with the protections ordinarily accorded to an accused when facing the Crown alone. This position is consistent with both principle and policy as outlined above. The general rule, therefore, is that the respective rights of the co-accused must be resolved on the basis that the trial will be a joint trial. This does not mean, however, that the trial judge has been stripped of his discretion to sever. That discretion remains and can be exercised if it appears that the attempt to reconcile the respective rights of the co-accused results in an injustice to one of the accused. [11]

Analysis

[25] In Mr. May’s case, although the Crown has expressed an intention to lay a single information charging Mr. May and the newly charged accused persons, the Crown has not put a joint information before me. Mr. May has not consented to his information being tried together with the information charging the new accused. [12] He opposes the Crown’s request for an adjournment of his trial.

[26] In effect, Mr. May’s position is that, in the circumstances of this case, it is not in the interests of justice to have a joint trial on his information and the information charging the other two accused, although he could be charged jointly with them on one information. [13] I have relied on the materials filed and the submissions of counsel to balance the factors at play on this application.

[27] It is not in dispute that the charges are extremely serious. If Mr. May’s trial dates proceed as scheduled, it is anticipated that it will be completed within five months of his arrest and there have been no prior adjournments. All these factors weigh in favour of the Crown’s application to adjourn Mr. May’s trial.

[28] It is not in dispute that the newly charged accused can be jointly charged with Mr. May on one information. Their charges arise out of the same event or series of events; the Crown theory is that Mr. May and the other two accused engaged in a common enterprise when they committed the home invasion robbery. The general rule that a joint trial should be conducted for persons jointly charged with the commission of an offence, especially accused that are alleged to have engaged in a common enterprise, also weighs in favour of granting the Crown’s application to adjourn Mr. May’s trial.

[29] Concerns about the duplication of judicial resources, the costs associated with conducting two trials, and requiring witnesses, particularly vulnerable witnesses, to testify twice are valid concerns raised by the Crown and are factors that weigh in favour of granting the Crown’s application.

[30] Based on the materials filed and the submissions made by counsel, this is an identification case. That is, the Crown will be put to their burden of establishing beyond a reasonable doubt that each of the accused persons was one of the four individuals seen leaving the crime scene after having committed the break and enter and robbery.

[31] In R. v. Crawford; R. v. Creighton, the two accused were jointly charged with second degree murder. One of the accused, Creighton, provided a statement to the police on his arrest which cast blame primarily, if not entirely upon Crawford. Crawford gave no police statement, but at trial testified and blamed Creighton for the injuries which caused the deceased’s death. Crawford and Creighton were identified as being in the deceased’s company on the night of the beating. The fact that a “cut-throat defence” may be run was apparent as early as the date of Mr. Creighton’s arrest based on his police statement.

[32] In the case at bar, no evidence has been led, or submissions made, that suggest that Mr. May or either of the other accused made statements to police casting blame on each other. That is not surprising given the nature of the case- an identification case.

[33] The policy reasons for joint trials when each accused blames the other or others (i.e. a “cut-throat defence”), do not appear to be present on the facts presented in this application. Nor do the circumstances presented on this application suggest that the risk of inconsistent verdicts is a real concern. On the evidence that is admissible against each individual accused, the Crown will either be able to establish beyond a reasonable doubt that he participated in the common enterprise or will fail to meet its burden in that regard.

[34] The Crown says that separate trials will permit the accused to appear at each others’ trials to frustrate the fact-finding purpose of the court. In essence the Crown submits that the other accused could appear at Mr. May’s trial to testify that they were present at the home invasion and Mr. May was not. Mr. May could likewise attend at the trial of the other accused, after conducting his own trial, to testify that he was present, and they were not.

[35] I find the potential that one or both recently charged accused will attend Mr. May’s trial to give evidence to exonerate him is negligible given that Mr. May’s trial is scheduled to take place between July 16 and July 19 and those accused are facing prosecution for the same offences. Should Mr. May’s trial be adjourned for other reasons, the likelihood may increase, just as there is a possibility that Mr. May would be able to testify at the trial of the other accused. The Crown’s concerns at this point are speculative.

[36] Furthermore, Mr. Korkusuz has entered guilty pleas to the break and enter and commit robbery and utter threat charges. Mr. Korkusuz, should he be so inclined, could attend at Mr. May’s trial or that of the other accused, to provide potentially exculpatory evidence for them. This would not amount to a frustration of the fact-finding process but merely the reality of the heavy burden the Crown bears to prove guilt on the totality of the evidence at trial. It would be similarly so if Mr. May or the other accused choose to extend the same generosity to each other on their respective trials.

[37] When he was charged in February of 2024, Mr. May promptly retained his counsel of choice, Ms. Fedak, to defend the charges. Ms. Fedak conducted a Crown pre-trial, a judicial pre-trial and scheduled dates for trial in July of 2024 for Mr. May’s case. Mr. May has moved expeditiously to schedule trial dates, which Ms. Fedak says was by design as Ms. Fedak is scheduled to commence a lengthy homicide case at the beginning of 2025 and will be unavailable to conduct other trials.

[38] Mr. May is in custody awaiting his trial. The case against him does not involve DNA evidence, unlike the newly charged accused. Mr. May is ready to proceed to trial as is his counsel. The arrests of the newly charged accused in June of 2024 did not alter the case as against Mr. May.

[39] Very little information was presented about the new accused other than the fact that DNA hits led to their arrests. No information was provided about whether they have retained counsel, scheduled dates for a Crown pre-trial and/or judicial pre-trial or given any indication as to whether they intend to proceed to trial at all.

[40] The Crown position is premised on the need to hold a joint trial when a joint trial may never come to pass. The newly charged accused may never decide to proceed to trial. An adjournment of Mr. May’s trial could very likely result in the vacating of trial dates which will not be re-scheduled before 2025, which could frustrate Mr. May’s right to be represented by counsel of choice. This is unlike a situation where Defence counsel is unavailable for dates within a reasonable time, which requires the accused to retain another counsel who is available within a reasonable period of time. Ms. Fedak is available and prepared to proceed with the trial on the dates Mr. May expeditiously sought and obtained with the consent of the Crown.

[41] The Crown submits that an adjournment application is not an application for judicial interim release, a s. 11(b) Charter application, or a severance application. Mr. May is entitled to pursue those applications on a proper record says the Crown. With respect, the Crown’s position fails to recognize that s. 11(b) considerations, including that an accused may have his security and liberty impacted for much longer than necessary, are factors on an adjournment application. An adjournment of Mr. May’s trial could well result in his continued detention pending a trial that will be delayed for months, as he awaits decisions to be made by the other accused persons, which include retaining counsel, engaging in pre-trial discussions with the Crown and the Court, making elections as to their mode of trial, and deciding how they will plead.

[42] I also reject the Crown’s position that s. 11(b) is not a concern which has crystalized since Mr. May was only charged in February of 2024. In Jordan, 2016 SCC 27, the Supreme Court of Canada observed that the presumptive ceiling is not an aspirational target but rather “it is the point at which delay becomes presumptively unreasonable”. [14] The majority of the Court went on to state:

The public should expect that most cases can and should be resolved before reaching the ceiling. For this reason, as we will explain, the Crown bears the onus of justifying delays that exceed the ceiling. It is also for this reason that an accused may in clear cases still demonstrate that his or her right to be tried within a reasonable time has been infringed, even before the ceiling has been breached. [15]

[43] In the circumstances of this case, the Crown has not met its onus to establish grounds for an adjournment of Mr. May’s trial. Mr. May and his counsel are prepared to proceed to trial on the three days scheduled, as is the Crown. If one or both of the other accused do decide to proceed to trial, for the reasons set out above, it is not clear on the record before me that a joint trial is in the interests of justice, notwithstanding the presumption in favour of a joint trial for those accused of participation in a common enterprise. The delay of an in-custody accused’s trial to await a joint trial that may never occur weighs heavily in favour of denial of the Crown’s application.

[44] On June 20, a week after the new arrests, Crown counsel e-mailed Ms. Fedak to advise that the Crown intended to apply to adjourn Mr. May’s trial and to prosecute him with the newly charged accused persons. On June 27, the Crown filed a brought forward form/application to bring Mr. May to court on July 4 for the Crown’s application to vacate his trial dates scheduled for July 16, 18, and 19.

[45] On July 4, Mr. May was brought to court pursuant to a judge’s order. The Crown’s Form 1 Application, which is dated July 4, 2024, was served on Defence counsel that same day. Brief oral submissions were made by counsel for the Crown and Defence on July 4 and the application was adjourned for further submissions to be made on July 9. In the interim, Defence counsel filed responding materials. Additional oral submissions were made on July 9.

[46] Therefore, regarding the timeliness of the Crown’s application, the application was first scheduled to be heard on July 4. I mention this not to be critical of Crown counsel, Mr. Osowski, who is a diligent Assistant Crown Attorney. There are practical challenges to scheduling matters to be heard on short notice and the arrest of the new accused persons in mid-June required the Crown to consider its position in respect of the prosecution of each accused.

[47] I refer to the timing of the application because it is one factor to consider in determining whether the application should be granted. The application was heard less than two weeks before the start of the trial. Mr. May and his counsel could be expected to be preparing for the trial and indeed have always maintained that they are prepared to proceed as anticipated. The adjournment of a trial of an in-custody accused person on short notice is another factor that weighs against granting the adjournment.

Conclusion

[48] Having considered the totality of the circumstances, I find that it is in the best interests of the administration of justice that the Crown’s application to adjourn Mr. May’s trial be dismissed. I am indebted to counsel for their able submissions and the materials they filed in support of their respective positions.

Released: July 16, 2024 Signed: Justice J.P.P. Fiorucci

Footnotes

[1] On July 11, 2024, I advised the parties through the Judicial Assistant that I would be dismissing the Crown’s application for adjournment of the trial and that I would provide reasons for my decision.

[2] R. v. Siddiqui, 2022 ONCJ 62.

[3] Ibid, at para. 16, citing R. v. Hinds, 2015 ONSC 5210, at para. 25; R. v. Hazout (2005), 2005 ONCA 628, 199 C.C.C. (3d) 474, [2005] O.J. No. 3550 (ONCA) at para. 31, leave to appeal refused [2005] S.C.C.A. No. 501; R. v. Nichols (2001), 2001 ONCA 600, 46 C.R. (5th) 294, [2001] O.J. No. 3220 (ONCA) at para. 23, leave to appeal refused [2001] S.C.C.A. No. 508; R. v. McCallen (1999), 1999 ONCA 10, 43 O.R. (3d) 56, [1999] O.J. No. 202 (ONCA) at paras. 45-47.

[4] R. v. Hinds, supra, at para. 25.

[5] Ibid, at paras. 26-27, citing R. v. Morin, 1992 SCC 89, [1992] 1 S.C.R. 771.

[6] Ibid, at para. 28.

[7] R. v. McCallen, supra, at paras. 45-47, R. v. Hazout, supra, at para. 31.

[8] R. v. Siddiqui, supra, at para. 18, citing R. v. Ke, 2012 ONCA 179, at para. 57.

[9] R. v. Siddiqui, supra, at para. 17, citing R. v. T.S., 2019 ONSC 5226, at para. 32.

[10] R. v. Siddiqui, supra, at paras. 19-20, citing R. v. Baez, 2014 ONCJ 484, at para. 8, R. v. McKenzie-Fletcher, 2020 QCCQ 2367, at para. 36.

[11] R. v. Crawford; R. v. Creighton, 1995 SCC 138, [1995] 1 S.C.R. 858, at paras. 30-32.

[12] R. v. Clunas, 1992 SCC 127, [1992] 1 S.C.R. 595, at para. 33.

[13] Ibid, at para. 33.

[14] R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 56.

[15] Ibid, at para. 56.