ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-30345
DATE: 2014/09/18
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
KHURRAM SHER Applicant
David McKercher, for the Attorney General of Canada
Michael D. Edelson and Giuseppe Cipriano, for the applicant
HEARD: March 14, 2012
Decision on application for severance
C. MCKINNON J.
[ 1 ] The applicant Khurram Sher is charged together with Hiva Alizadeh and Misbahuddin Ahmed with conspiracy to facilitate terrorist activity. A conviction for this offence attracts a maximum penalty of 14 years in prison.
[ 2 ] On the same information, Mr. Ahmed and Mr. Alizadeh are charged individually with possessing or making explosive devices. Mr. Alizadeh is also charged with financing terrorism. Conviction on these offences attracts a maximum penalty of life in prison.
[ 3 ] Upon arraignment in the provincial court, the applicant Sher elected to be tried by a provincial court judge without a jury. The accused Alizadeh elected to be tried by a superior court judge without a jury. The accused Ahmed elected to be tried by a superior court judge with a jury. Pursuant to the provisions of s. 534(4.3) of the Criminal Code, R.S.C. 1985, c. C-46, Mr. Sher’s election was overridden by the elections of his co-accused and he is now required to have a preliminary inquiry in the provincial court. By virtue of the provisions of s. 567, assuming he is committed for trial by a provincial court judge, he is required to have a trial by jury in the superior court as a result of the election made by Mr. Ahmed.
[ 4 ] The applicant Sher seeks a severance from his co-accused Alizadeh and Ahmed so that he can be tried in the provincial court.
[ 5 ] For the purposes of the present application, it is important to note that the evidence linking the applicant Sher to a conspiracy with the co-accused Alizadeh and Ahmed arises almost exclusively from an audio-probe that had been surreptitiously secreted in the home of the accused Alizadeh.
[ 6 ] Police agencies had been interested in the accused Alizadeh and Ahmed since February 2008. The evidence against Alizadeh and Ahmed involves a banquet of intercepted communications, personal surveillance, and covert entries into their homes, all of which afford evidence of a conspiracy between them and others outside of Canada. The evidence places Alizadeh and Ahmed in possession of or the manufacture of explosives devices, attending terrorist training camps, financing terrorist groups, recruiting individuals and expressing violent ideological motives. Their trial in the superior court is anticipated to last three months. It is anticipated that there will be a Garofoli application concerning the legality of the wiretaps, probes and covert entries into their homes. It is expected that there will be proceedings pursuant to s. 38 of the Canada Evidence Act , R.S.C. 1985, c. C-5 which might occasion delay, together with the usual complications incidental to a trial by jury, including an anticipated challenge for cause and the special instructions to jurors incidental to conspiracy cases.
[ 7 ] In stark contrast, a trial in the provincial court of the applicant Sher could be completed within two weeks. As stated, the evidence against the applicant Sher arises almost exclusively from a probe that had been placed in the Alizadeh residence which garnered details of a conversation during and after a dinner involving the accused Alizadeh and Ahmed together with the applicant Sher, who was passing through Ottawa on his way to London. The applicant Sher is a medical doctor who practices as a pathologist. He had changed his employment from Montreal to the city of London, Ontario. The audiotape is 90 minutes in length. It is in the English language and has been transcribed. The Crown alleges that the statements made by Doctor Sher prove that he had agreed to become a co‑conspirator with his co-accused in furtherance of global violent Islamist jihad. Independent of the audiotape, there is some purportedly confirmatory evidence indicating that the applicant had transferred $1,000.00 in aid of foreign based Islamist jihadists and was prepared to transfer more money as required.
[ 8 ] Mr. McKercher does not dispute that there is substantially greater evidence which would require quantitatively greater court time to establish the case against Alizadeh and Ahmed but he submits that the same background evidence would be necessary to contextualize the evidence obtained from the 90 minute audio-probe. Mr. Edelson submits that an agreed statement of facts could be used to inform the trier of fact about the necessary background narrative, necessitating a modicum of court time. It is not expected that issues pursuant to s. 38 of the Canada Evidence Act might surface to cause delay or complication in a separate trial of the Applicant Sher; nor does Mr. Edelson expect a Garofoli application to be undertaken in the case of the applicant Sher as he was a guest in the house of Mr. Alizadeh at the time of the interception. I would observe that an attack on the legality of the interception on the part of the applicant Sher would likely be futile. His expectation of privacy in such circumstances is greatly diminished.
[ 9 ] Furthermore, in the trial of the accused Alizadeh and Ahmed, Mr. McKercher agrees that the Garofoli application should proceed in advance of the summoning of potential jurors. As a result, the trial will be conducted in two parts: the first dealing with pre-trial issues and the second being the trial itself.
[ 10 ] The facts of the case against the co-accused Alizadeh and Ahmed were placed before this court in the form of an agreed statement of facts. I do not intend to review those facts. For the purposes of this application, it is sufficient to observe that the evidence against those two accused unfolds over a sequence of years and will consume months of trial time, a starkly different scenario than that involving the applicant Sher.
[ 11 ] Reviewing the complex facts implicating the accused Alizadeh and Ahmed convinces me that were the applicant Sher required to participate in a joint trial with them, I would be required to constantly warn the jury that the evidence being heard is inadmissible against the applicant Sher. I can conceive of having to repeat this injunction on an almost daily basis. The powerful evidence arising from wiretaps, probes and surveillance demonstrates an arguably fanatical devotion to violent Islamist jihad. This evidence would be highly prejudicial to the applicant Sher.
[ 12 ] Of equal concern to me however, is the prejudice to the accused Alizadeh and Ahmed that would result from constantly warning a jury that certain evidence is admissible against them but not against the applicant Sher. This concern appears to have been overlooked in the cases dealing with severance. It seems to me that in cases involving a dramatic distinction in the evidence admissible against different accused, a constant reminder to the jury that it is admissible only against certain accused cannot help but prejudice those accused in the eyes of the jury.
[ 13 ] Section 591(3) of the Criminal Code provides that where there is more than one accused, the court may order that one or more of them be tried separately on one or more of the counts where it is satisfied that the interests of justice so require. A trial judge has broad discretion in applying the severance sections of the Criminal Code , and an appellate court will only interfere with the exercise of a trial judge’s discretion if the trial judge acted unjudicially, or the ruling resulted in an injustice: R. v. Litchfield , 1993 44 (SCC) , [1993] 4 S.C.R. 333, 86 C.C.C. (3d) 97; R. v. D.A.C., 1997 397 (SCC) , [1997] 1 S.C.R. 8, 112 C.C.C (3d) 96.
[ 14 ] Although a trial judge has discretion to order separate trials, the 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 an accused. R. v. Crawford; R. v. Creighton, 1995 138 (SCC) , [1995] 1 S.C.R. 858, 96 C.C.C. (3d) 481 at para. 31 . That case also stands for the proposition that in exercising discretion with respect to the severance of counts or accused, the discretion should be informed by Charter based values (para. 33).
[ 15 ] There are three fundamental policy considerations which militate against the severance of counts or accused: first, persons charged with offences arising out of the same events or series of events should be tried jointly: R. v. Creighton , supra; second, it is undesirable that there should be separate trials involving the testimony of the same witnesses to the same events: R. v. Court (1995), 1995 1741 (ON CA) , 99 C.C.C. (3d) 237 (Ont.C.A.) at para. 84 ; third, multiplicity of proceedings is not in the public interest: R. v. Cross (1997), 1996 5992 (QC CA) , 112 C.C.C. (3d) 410 (Qc.C.A.) at p. 419.
[ 16 ] Courts have adopted a series of factors which they use to assess the necessity of having separate trials, as set out in Cross , and more recently in R. v. Last, 2009 SCC 45 () , [2009] 3 S.C.R. 146, 247 C.C.C. (3d) 449 at para. 18 :
(1) The sufficiency of the factual and legal connection between the various counts;
(2) The risk of coming to contradictory verdicts;
(3) The possibility of having recourse to similar act evidence;
(4) The complexity and the length of the trial having regard to the nature of the evidence to be called;
(5) The prejudice generally caused to the accused and specifically with respect to the right to be tried within a reasonable time;
(6) The prejudice caused to co-accused;
(7) Antagonistic defenses;
(8) The admissibility of evidence against a co-accused;
(9) The manifest desire of the accused to testify on certain counts and not others; and
(10) The desire to avoid a multiplicity of proceedings.
[ 17 ] Expanding on factor number seven, where critical evidence is admissible against one accused but not against the other then, absent antagonistic defences, severance should be ordered if the judge is satisfied that substantial prejudice might well result. Similarly, where the case against one accused is weak and the other is strong, then, again absent antagonistic defences, severance may be ordered if the risk of substantial prejudice is shown: R. v. Proulx (1996), 101 C.C.C. (3d) (Qc. C.A.) at pp. 572-574, citing with approval Guimond v. Her Majesty The Queen, 1979 204 (SCC) , [1979] 1 S.C.R. 960, 44 C.C.C. (2d) 481.
[ 18 ] The penultimate paragraph in the majority judgement, in Guimond as stated by Ritchie J. is apposite:
I have already expressed the opinion that when two alleged co-conspirators are tried separately the acquittal of one does not necessarily invalidate the conviction of the other. I am of the opinion also that, whenever it is apparent that the evidence at the joint trial of two alleged co-conspirators is a substantially stronger against one than the other, the safer course is to direct the separate trial of each and this is particularly the case when the prosecution is tendering in evidence a damaging statement made by one under circumstances which made it inadmissible against the other.
[ 19 ] In the circumstances before me, I am persuaded that the applicant Sher should be granted severance from his co-accused Alizadeh and Ahmed. The evidence against his co-accused is substantially greater in detail than the evidence against him. The anticipated legal arguments are more complicated and time consuming. The anticipated time of trial is much greater. The potential prejudice against the applicant in a joint trial is enormous. In my view, it cannot be cured by simple jury instructions as suggested by Mr. McKercher. As was noted in Last , supra, at para. 46 , if carefully crafted jury instructions could cure every objection to severance, then there would never be need for an order of severance. In my view, the interests of justice, including the applicant Sher’s right to a fair trial, require that he be tried separately.
[ 20 ] In the result, the application for severance is granted.
The Hon. Mr. Justice C. McKinnon
Originally released with publication ban: March 21, 2012
Released without publication ban: September 18, 2014
COURT FILE NO.: 10-30345
DATE: 20120321
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
– and –
KHURRAM SHER Applicant
Decision on application for severance
McKinnon J.
Originally released with publication ban: March 21, 2012
Released without publication ban: September 18, 2014