ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20120330

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – NEIGABE STEWART Applicant

L. Amlin & G. Lennox , for the Respondent

E. Royle , for the Applicant

HEARD: March 26, 2012

RULING ON APPLICATION FOR SEVERANCE

GARTON J. :

[ 1 ] The accused, Neigabe Stewart, has applied for an order pursuant to section 591(3) (b) of the Criminal Code severing his trial from the trial of the co-accused, Alzobair Ahmed (“Ahmed”).

[ 2 ] Counsel for Mr. Stewart acknowledges that there is a prosecutorial and societal interest in having the two accused tried together. However, he submits that the circumstances of this case are such that severance is appropriate and warranted – that otherwise Mr. Stewart’s s. 11(b) Charter rights will be infringed by his having to wait for the Garofoli -related issues to be resolved before his trial commences. Unlike the co-accused, Mr. Stewart does not seek to exclude the wiretap evidence and is not a party to the Garofoli application, which is scheduled to proceed on August 20, 2012, with an application to cross-examine the affiant and, if leave is granted, to be heard over a two-week period commencing on October 9, 2012.

[ 3 ] Ahmed’s and Mr. Stewart’s trial date is scheduled to be set on Monday, April 2, 2012. The Crown advises that a trial date in December 2012 or January 2013 is likely. If severance were granted, Mr. Stewart’s trial could proceed at an earlier date, probably in September or October 2012. Although a July date was at one point contemplated, the majority of the Crown’s witnesses are apparently not available that month.

[ 4 ] The trial is estimated to take 3 to 4 weeks. The Crown intends to call approximately 32 witnesses. If severance were granted, each trial would take approximately the same length of time because the Crown has indicated it would call the same witnesses at each proceeding.

Overview of the investigation

[ 5 ] The Crown’s factum sets out the history of the investigation in some detail. Briefly, “Project Corral” was a large-scale investigation that took place between August 2009 and May 2010 into the criminal activities of the street gangs known as the “Falstaff Crips”, “Five Point Generals”, and “Shower Posse”.

[ 6 ] Two authorizations to intercept private communications were issued. The first was granted on January 27, 2010, by Nordheimer J. and was valid until March 27, 2010. Nordheimer J. granted a second authorization on March 24, 2010, which was valid until May 21, 2010. Mr. Stewart was a target in the first authorization and both he and Ahmed were targets in the second authorization.

[ 7 ] Project Corral culminated on May 4, 2010, with the execution of over 100 search warrants at addresses connected to the members and associates of the three alleged criminal organizations. Over 100 individuals were arrested. Eight firearms were seized, along with large amounts of cocaine, marijuana, hashish and ecstasy.

[ 8 ] Mr. Stewart was arrested on May 4, 2010. Ahmed had been arrested earlier in Sault Ste. Marie on April 17, 2010. Both have been in custody since their arrests.

Proceedings against Ahmed and Stewart

[ 9 ] Following disclosure and judicial pre-trials in the Ontario Court of Justice, the Crown organized the accused into smaller and more manageable prosecution groups. Mr. Stewart and Ahmed were part of the so-called “Shower Posse” group, which was comprised of twenty-two accused. By the time of the preliminary hearing, there were eleven accused remaining in this group.

[ 10 ] There are currently twenty-two accused that are still before the Ontario Court of Justice in preliminary hearings, all of which are anticipated to be completed by August 2012. The preliminary hearings with respect to another twenty-two accused, including Ahmed and Mr. Stewart, have been completed. Ahmed and Mr. Stewart were committed to stand trial on July 6, 2011.

[ 11 ] Following Ahmed’s and Mr. Stewart’s committal to stand trial, the Crown further organized the accused into six smaller prosecution groups. One of these groups was comprised of Ahmed, Mr. Stewart and Carlton McNeil. However, the Crown has agreed to sever Mr. McNeil’s charges from the indictment. Accordingly, the Crown intends to file a new 15-count indictment alleging offences only against Ahmed and Mr. Stewart.

Stewart’s certiorari application

[ 12 ] On July 7, 2011, immediately following his preliminary hearing, Mr. Stewart served a Notice of Application to quash his committal for trial. The application was scheduled to be heard on February 21, 2012. On that date, Mr. Stewart’s counsel advised that he would not be making any submissions. The application was accordingly dismissed.

[ 13 ] Counsel for Mr. Stewart pointed out that the filing of the certiorari application did not delay the setting of a trial date as a trial date had to be set in any event for Mr. Ahmed. Mr. Stewart was prepared to set that date while the certiorari application remained outstanding.

Allegations against Ahmed and Stewart

Count 7: Conspiracy to traffic in cocaine

[ 14 ] Count 7 in the current indictment charges Ahmed and Mr. Stewart with conspiring to traffic in cocaine between April 9 and 17, 2010. This is the most serious charge that Mr. Stewart is facing and the only count in which he and Ahmed are co-accused. In support of this charge, the Crown will be relying on twenty-three intercepted conversations between the two accused. The calls culminate with Ahmed allegedly purchasing nine ounces of cocaine from Mr. Stewart and then travelling by bus to Sault Ste. Marie with the intention of selling it. Ahmed was arrested in Sault Ste. Marie on April 17, 2010, with eight ounces of cocaine in his possession. The Crown’s theory is that Ahmed turned to Mr. Stewart as an alternative supplier of cocaine following the arrest on March 27, 2010, of his former co-accused and cocaine supplier, Derrick Smith (“Smith”).

Count 6: Conspiracy involving Ahmed and Smith

[ 15 ] Count 6 in the indictment charges Ahmed with conspiring with Smith to traffic in cocaine. The Crown alleges that Ahmed travelled to Sault Ste. Marie on two earlier occasions – February 9 and April 7, 2010 – with cocaine supplied to him by Smith. As stated above, the position of the Crown is that following Smith’s arrest on March 27, 2010, Ahmed sought a new supplier of cocaine in the person of Mr. Stewart. On April 18, 2011, Smith pleaded guilty to a number of charges in the Ontario Court of Justice, including this conspiracy to traffic cocaine with Ahmed.

[ 16 ] In order to prove that Ahmed had an ongoing cocaine-trafficking relationship with Smith and then Mr. Stewart, the Crown intends to rely upon and lead evidence of the large amount of cocaine and money seized from the residence and motor vehicle of Smith on March 27, 2010. The position of the Crown is that this evidence and all the other evidence that will be led in support of Counts 6, 8, 10 and 11 relating to Ahmed and Smith is inextricably linked to the Crown’s case against Mr. Stewart.

Counts 9, 10 and 11: Ahmed’s Sault Ste. Marie charges

[ 17 ] Counts 9, 10 and 11 relate to charges against Ahmed upon his arrest in Sault Ste. Marie on April 17, 2010. Based on the wiretap interceptions between Ahmed and Smith and later on, between Ahmed and Mr. Stewart, Ahmed was arrested, at which time he was in possession of eight ounces of cocaine, one pound of marihuana, $750.00 and four cell phones.

Counts 8 and 18: Ahmed’s other charges

[ 18 ] Count 8 charges Ahmed with conspiring with persons unknown to purchase marijuana. The Crown alleges that Ahmed travelled to Sault Ste. Marie for the purpose of selling the marihuana. Count 18 alleges that Ahmed conspired with a person unknown to traffic in oxycodone.

Counts 12, 13, 14, 15, 16 and 17: Mr. Stewart’s other charges

[ 19 ] These counts in the indictment allege that Mr. Stewart trafficked in cocaine with persons other than Ahmed.

Counts 1 and 2

[ 20 ] Mr. Stewart and Ahmed are charged in counts 1 and 2 respectively with committing a crime for the benefit of a criminal organization at the direction of the alleged leader of that organization, Courtney Ottey (“Ottey”), who pleaded guilty to various drug charges in the Superior Court of Justice on November 30, 2011.

[ 21 ] The evidence that the Crown intends to lead regarding these charges relates to communications involving Ahmed, Ottey and Mr. Stewart, as well as expert evidence with respect to gang activity.

Analysis

Factors to be considered on Severance

[ 22 ] In R. v. Last , 2009 SCC 45 , [2009] 3 S.C.R. 147, the Court held that the “interests of justice” test in s. 591(3) of the Code encompasses the accused’s 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 Court identified a number of factors that a trial judge should weigh when deciding whether or not to grant severance. Those factors include:

• general prejudice to the accused;

• the legal and factual nexus between counts;

• the complexity of the evidence;

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

• the possibility of inconsistent verdicts;

• the desire to avoid a multiplicity of proceedings;

• the use of similar fact evidence at trial;

• 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; and

• the existence of antagonistic defences as between co-accused persons.

[ 23 ] The principles to be considered in determining whether or not to grant severance involve a balancing between the risk of prejudice to the accused – in this case, the potential prejudice to Mr. Stewart’s right to be tried within a reasonable time – and the public interest in a single trial.

[ 24 ] As a general rule, persons alleged by the Crown to be acting in concert, especially in a charge of conspiracy, should be jointly tried. As stated in R. v. Sarrazin (2005), 195 C.C.C. (3d) 257 (Ont. C.A.), at para. 59,

the law respecting severance under s. 591(3) of the Criminal Code in common enterprise/conspiracy cases is well established: unless it can be shown that a joint trial would result in an injustice to an accused, it is generally in the interests of justice that such persons be tried jointly. There are strong policy reasons for this principle: joint trials enhance the truth-finding exercise and preclude the possibility of inconsistent verdicts; they spare all those concerned, and ultimately the community, the expense (financial and emotional), inconvenience to witnesses, and institutional stress associated with multiple trials of the same issues.

[ 25 ] Similarly, in R. v. Savoury , [2005] O.J. No. 3112 at para. 22 (C.A.), the Court noted that the interests of justice are multi-faceted and extend beyond the immediate concerns of the party applying for severance:

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.

[ 26 ] The fact that Mr. Stewart may be brought to trial faster if severance is granted is not necessarily determinative of the severance issue or a future s. 11(b) application. For example, in R. v. Malcolm (2008), 240 C.C.C. (3d) 213 (Ont. S.C.), the Crown had decided to “fold” the accused’s attempted robbery charge from Durham Region into a large-scale prosecution, Project Pathfinder. This decision was based on the fact that, pursuant to the Pathfinder wiretap authorization, telephone calls were intercepted that related to the accused’s conspiracy to commit the robbery in Durham. At his application for a stay of proceedings based on unreasonable delay, the accused argued that had his case not been tethered to the Pathfinder prosecution, he would have been brought to trial years earlier. In dismissing the application, MacDonnell J. found that the Crown’s decision to tie the accused’s case to Pathfinder was reasonable. After referring to the above-quoted passage from Sarrazin and the principle that it is generally in the interests of justice that common enterprise/conspiracy cases be tried together, he stated:

The applicant was entitled to a trial within a reasonable time, not necessarily within the fastest time, and a determination of what is reasonable must take into account more than his interest. A finding that there was another route that could have brought him to trial more quickly is not determinative of whether his rights under s. 11(b) were infringed. [at para. 31]

[ 27 ] In the present case, Ahmed and Mr. Stewart have been jointly charged from the outset of the prosecution. As in Malcolm , the allegations against them are based, for the most part, on wiretap interceptions. The Crown will be relying on twenty-three intercepted conversations between the two accused.

[ 28 ] In R. v. Khan , 2011 ONCA 173 , [2011] O.J. No. 937, the Court of Appeal, in quashing the stay of proceedings granted by the trial judge on the basis of unreasonable delay, warned that courts must exercise some caution in second-guessing the Crown’s decision as to how to proceed with a case, particularly in large-scale prosecutions. In Khan , the accused was a relatively minor player in an extensive wiretap investigation. During the preliminary hearing, the Crown decided to drop the criminal organization charges and proceed against Mr. Khan separately on trafficking and conspiracy charges. During his s. 11(b) application, Mr. Khan argued that the Crown should have severed him from the over 100 co-accused at an earlier stage, rather than requiring him to endure the lengthy intake period and inherent delays of a complex case. In speaking for the Court, Karakatsanis J.A., as she then was, stated:

I agree with counsel for [Khan] that these mega-project prosecutions require the Crown to diligently and critically assess the evidence to determine whether an accused whose involvement is minor, discrete or disconnected from the larger prosecution can be tried separately and more quickly. However, the court should be hesitant to second-guess the Crown’s decisions on how to proceed and whether and when to withdraw charges, particularly in complex prosecutions where decisions are contingent upon interdependent circumstances. [at para. 30]

[ 29 ] In the present case, there is no indication that the Crown has not been diligent in organizing the approximately 100 accused into appropriate prosecution groups, beginning with three distinct groups at the preliminary hearing stage. Following the preliminary hearing, Mr. Stewart was co-accused with only two other individuals – Ahmed and McNeil. A further assessment by the Crown has resulted in McNeil’s charges being severed from the indictment, leaving Ahmed as Mr. Stewart’s sole co-accused.

[ 30 ] The principal cause for the delay in Mr. Stewart’s case has been Ahmed’s Garofoli application, which the case management judge has determined should be a global application – that is, one hearing for all those accused seeking to exclude the wiretap evidence. That hearing, which could not commence until the preliminary hearings for all accused were completed, has now been scheduled for two weeks in August and two weeks in October 2012. I am advised that three counsel, including Ahmed’s lawyer, have been designated by Legal Aid as “lead” counsel, although counsel for other accused may also be participating. A global application, rather than a multiplicity of applications dealing with the same issues, would appear to be the most practical, efficient and cost-effective way to proceed. There are forty-four accused and the documentation is voluminous – the application for the first authorization was over 1300 pages, with hundreds of pages of appendices. The application for the second authorization was over 600 pages and also contained lengthy appendices.

[ 31 ] I am not being asked as part of this application to rule on the merits of a s. 11(b) application. However, I would note that delay caused by a co-accused is generally considered neutral in the s. 11(b) analysis. In R. v. Tomlinson [2008], O.J. No. 3524 (S.C.) , a total delay of 42 months was partly attributable to the co-accused Ceballo’s application to quash his committal for trial. Mr. Tomlinson had requested that the Crown sever his trial from that of Ceballo in order to obtain an earlier trial date. The Crown refused. In dismissing Mr. Tomlinson’s s. 11(b) application, Archibald J. found that the delay caused by the co-accused’s certiorari application should be considered neutral. At para. 41 of his decision, he explained,

[w]hile the delay caused in having both Mr. Tomlinson and Mr. Ceballo tried together forms a substantial part of the overall delay, I find that this time period is neutral because it is attributable to the co-accused. Delay caused by a co-accused is usually considered neutral in the analysis, as ‘generally speaking, it is in the interests of justice for individuals charged jointly with the same offence to be tried together’: R. v. L.G ., 2007 ONCA 654 , [2007] O.J. No. 3611 at para. 63 (C.A.). In R. v. L.G. the Court of Appeal, citing the Whylie decision, noted that a single trial conserves judicial resources, avoids witnesses testifying multiple times, and promotes consistency in verdicts: R. v. L.G ., supra , at para. 63 .

[ 32 ] In determining whether severance should be ordered in the present case, I take into account the fact that Mr. Stewart has been in custody since his arrest, which was twenty-three months ago. As stated at the outset of these reasons, if severance were ordered, his trial would likely commence in September or October 2012, as opposed to December 2012 or January 2013 for a joint trial. I also bear in mind the guidelines suggested by the Supreme Court in R. v. Morin , [1992] 2 S.C.R. 771 : in Provincial Court, a guideline of 8 to 10 months for institutional delay was suggested and, after committal for trial, an additional 6 to 8 months. These are, of course, guidelines as opposed to limitation periods. The inherent time requirements of the case must also be considered.

[ 33 ] The trial is anticipated to be fairly lengthy – 3 to 4 weeks – even if severance were ordered, as the Crown would call the same witnesses at each proceeding. Factors favouring a joint trial therefore include the conservation of judicial resources and avoiding as many as 32 witnesses having to testify twice. Not only are Ahmed and Mr. Stewart co-accused on the conspiracy charge (count 7), but the evidence relating to that count is inextricably linked to the evidence relating to the Crown’s case against Ahmed on counts 6, 8, 9, 10 and 11.

[ 34 ] As stated in Savoury , the interests of justice encompass those of both the accused and the community as represented by the prosecution. Having considered and weighed those interests, and, in particular, Mr. Stewart’s right to be tried within a reasonable time, I am not satisfied that he has overcome the presumption that accused who are jointly charged and alleged to have acted in concert should be tried together. I have come to this conclusion based on the record to date with respect to the delay in this case and the predicted time frame with respect to the Garofoli application. If, as counsel for Mr. Stewart put it, that application becomes a “monstrosity,” requiring far more time than anticipated and thereby significantly delaying the proposed December 2011 or January 2012 trial date, then this application for severance may be renewed.

Conclusion

[ 35 ] For the reasons given, the application for severance is dismissed.

GARTON J.

Released: 20120330

DATE: 20120330

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent – and – NEIGABE STEWART Applicant

RULING ON APPLICATION FOR SEVERANCE GARTON J.

Released: 20120330