peterborough COURT FILE NO.: 881/11

DATE: 20120430

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

— and —

CURTIS LEE SMITH

Applicant

COUNSEL:

Paula Thompson for the Respondent

Timothy W. Johnston for the Applicant

HEARD: April 17, 2012

Ferguson J.E. J.

ENDORSEMENT

[1] The applicant moves for an order directing that the trial of the applicant on an indictment that contains three counts:

(1) Curtis Lee Smith (“Smith”) and Paul Anthony Gallant (“Gallant”) stand charged that they, on or about the 4th day of March, 2011 at the City of Peterborough, in the County of Peterborough, unlawfully did in committing an assault on Brannon Castro use a weapon, contrary to the provisions of Section 267(a) of the Criminal Code.

(2) AND FURTHER, Curtis Lee Smith and Paul Anthony Gallant stand charged that they, on or about the 4th day of March, 2011 at the City of Peterborough, in the County of Peterborough, unlawfully did wound Enayat Thompson, thereby committing an aggravated assault, contrary to Section 268 of the Criminal Code.

(3) AND FURTHER, Curtis Lee Smith stands charged that he, on or about the 4th day of March, 2011 at the City of Peterborough, in the County of Peterborough, unlawfully did while bound by a probation order made by Judge R.W. Beninger in the Ontario Court of Justice for the County of Peterborough on the 5th day of October 2010, covering a period of two years, applicable the date of expiration of his sentence of imprisonment, fail without reasonable excuse to comply with such order, to wit: keep the peace and be of good behaviour, contrary to Section 733.1(1) of the Criminal Code,

be held separately from the trial of Paul Anthony Gallant on the same indictment.

Background

[2] By way of background, I am including the synopsis of the evidence which the respondent anticipates at trial (as set out in her factum).

Brandi Mazurkiewicz is a resident of Peterborough. She invited three friends, Enayat Thompson, Brannon Castro and Kyle Gummerson-Keith from her home town to visit on the weekend of March 4th, 2011. They arrived in the afternoon. All four persons socialized through the afternoon and early evening at Ms. Mazurkiewicz’s apartment. They drank some beer.

All four persons left the apartment on foot with the intention of going to downtown Peterborough. They travelled along Tallwood, north on G[…] and east on Sherbrooke Street, towards downtown. They were on the south sidewalk, in the vicinity of the Foodland grocery store at 760 Sherbrooke Street, just west of Monaghan Road at the material time.

Mazurkiewicaz, Thompson, Castro, and Gummerson-Keith all gave statements and are anticipated to be witnesses in the trial of the matter. The witnesses state that two males on the north sidewalk exchanged angry words with them and then crossed the street. At the point of confrontation, Brannon Castro alleges that he was stuck in the head and chest by one of the males who was wielding a pipe or bar. At approximately the same time, the second male suspect stabbed Enayat Thompson in the side of the neck just behind the jaw.

The witnesses testified that the two suspects ran eastbound on Sherbrooke Street and north into the Foodland parking lot. At first Brannon Castro followed, but he returned to find Enayat Thompson bleeding heavily from his wound. All witnesses provided descriptions of the suspects and their clothing.

A car driven Sandra Arroyo was passing the scene as events unfolded. Sandra Arroyo reported that she saw a disturbance involving several teenagers on the south sidewalk. She observed three males running east along Sherbrooke Street and into the Foodland parking lot and a blonde haired girl running into a vacant lot south of Sherbrooke Street. She had to stop her car abruptly to avoid a collision with one of the running males.

Michelle Arroyo provided a description of a knife she saw being wielded by one of the persons.

The Arroyos phoned 911. A second 911 call was made by Brannon Castro. EMS and police attended the scene. Enayat Thompson was transported to the hospital for emergency surgery. He lost a considerable quantity of blood, his life was at risk and he has scars on his face from the wound and the surgery that followed.

Uniform officers attended the scene and conducted a canvas. The K-9 unit, PC Mason was deployed. Identification officer Nadene Nicholas attended.

SOCO officer Ryan Donaldson arrived and located footprint impressions, strands of hair and a black pipe believed to have been used in the attack near and on a fence at the rear of the Foodland Store. Opposite the fence are townhouses which are situate on Alexander Avenue. Efforts were made to identify DNA from the hair samples that were located.

Upon subsequent investigation, the footwear impressions appeared to match a particular type of shoe manufactured by the K-Swiss company.

Efforts were made to recover any video surveillance from the store in the area of the confrontation in an attempt to identify the suspects or persons who might match the description of the suspects provided by witnesses already interviewed.

On April 8th 2011, Darlene McCoy and Angie Maxine contacted OIC Nusink and provided statements. Ms. Maxine advised that she is a coordinator of the Young Mothers Program of Peterborough and that Ms. McCoy is a client. In preparing for a family court matter Ms. McCoy provided information to Ms. Maxine about an event involving Curtis Smith. Curtis Smith is the father of Ms. McCoy’s child. Ms. Maxine urged Ms. McCoy to provide the information to the police and accompanied her for that purpose.

Darlene McCoy provided a statement to OIC Nusink. Ms. McCoy advised that she remembered the night in question and saw media coverage of the event after the fact. She advised that she and Mr. Smith were living together in apartment […] Road, just south of Sherbrooke Street. She advised that Curtis Smith is the father of her baby, and that Smith and his friend Paul Gallant went out together that evening. Curtis Smith left wearing a red sweater, black jeans tucked into his socks and a pair of K-Swiss shoes. Curtis Smith left with shaggy blond hair and sideburns. Paul Gallant and his girlfriend Ashley Hargen were neighbours in the same building. Ms McCoy provided police the phone number of the phone used by Curtis Smith around that time.

After the two men left, at approximately 7-8 p.m. Ms. McCoy states that she received a text message from Curtis Smith saying “Something bad happened” and a bit later a message that stated, “I can’t say, [what happened] I’m coming home in a cab right now.”

Darlene McCoy went on to relate that Curtis Smith arrived home and told her to wash his clothes. He cut his hair and shaved his face and sideburns. He reported to Ms. McCoy that he got into a fight with a guy and hit a guy. Curtis said that he and Paul were walking and a bunch of guys threw a beer bottle at him, he went across the street and both groups were calling each other on. Paul had a pole up his sleeve and he (Smith) had a knife. Curtis thought he got the guy in the face with the knife as he later saw this male holding his face. Curtis said he ran and jumped a fence and went to a building nearby and phoned a cab. Curtis was scared because someone stopped a car on the road and he thought that someone might have seen his face.

Ms. McCoy advised that about a half hour after Curtis got home, Paul Gallant arrived at the apartment. Mr. Gallant advised Curtis Smith and Ms. McCoy that he ran to Alexander Court to a friend’s house and got a ride home in a car. Paul Gallant said that he hit a guy in the head with a pole that he had tucked in his sleeve.

Ms McCoy advised that Curtis Smith carries a knife which is silver with a black handle and a clip and has pipes in his apartment for protection. One was from a broken futon frame. Curtis Smith has given Paul Gallant a pipe in the past. She had no reason to think that Curtis Smith had any drugs or alcohol in his system when he left that night.

Subsequently Detective Constable Rogers learned of two witnesses from the Call-a-Cab company. Dispatcher Adam Foley received a request for a cab and driver Ann Hamlin provided the ride. At 8:08 p.m. on March 4th, 2011, the caller requested a cab to […]Court and was dropped off at […]Road. Ms Hamlin recalled the fare, with a pick-up at […]Court, specifically at the Extendicare senior’s residence. She says a young male came from a side hallway off the main foyer. He was dressed in a dark jacket with a hood, khaki jeans, wearing white running shoes. He was clean shaven with curly brown hair down to the lobes of his ears. When he entered the cab he made a comment that his shift had just finished, which the driver found odd because she knew the regular shift at Extendicare ended at 7 p.m. She drove the fare to […] Rd. a distance of only 400 meters. Given the time to call dispatch and await the arrival of a cab, she would expect that a person could walk the distance in less time than it took for the man to take her cab. The man left a $10 dollar bill for a $6-7 fare.

Dr. Alan Thompson is the emergency room surgeon who treated Enayat Thompson. His evidence would confirm a stabbing injury, the risk to the victim Mr. Thompson’s life and the treatment that Mr. Thompson received. Blood analysis provides an estimated blood alcohol concentration of 76 mg. of alcohol in 100 ml of blood at the time Mr. Thompson’s blood was drawn at the hospital.

Diana Polley from the Center of Forensic Sciences reports that blood was located on the pipe found abandoned by the fence, in insufficient quantity to develop a DNA profile. Barbara Doupe from the CFS reported that the hair from the fence was blond in colour, scalp-like and not suitable for DNA testing at the CFS.

In a later report from a different lab, the hair was found to be insufficient for mitochondrial DNA testing

Upon arrest Curtis Smith was found to possess a Blackberry cell phone #[…]. This corroborates the statement of Darlene McCoy about the phone number Curtis Smith was using on the night of the offence and intersects with the evidence from the phone records seized by police.

After his arrest Paul Gallant provided a statement to OIC Nusink.

The Crown brief lists twenty-one officers involved in the arrest of the two suspects and subsequent search warrants executed shortly after the arrests were effected. In addition, the Crown anticipates calling at least ten civilian witnesses and three CFS experts as well as the medical doctor who treated Mr. Thompson for his injuries.

OIC Nusink prepared an information to obtain a search warrant for the phone records for the phone that Darlene McCoy says the accused Curtis Smith was using on the night in question. The records reveal the two text messages to Darlene McCoy and the call to the Call-a-Cab company.

Officer Nusink also prepared and swore an information to obtain a search warrant for the home of Leora Smith (the mother of Curtis Smith) which is also the address identified by Darlene McCoy as the place where Curtis Smith moved his things after he left the apartment on G[…] Road.

The Law

[3] The starting point with respect to the test for severance pursuant to section 591(3)(b) of the Criminal Code is that persons accused of joint commission of crime should be tried together. The onus is on an applicant on a balance of probabilities to establish that a joint trial will result in an injustice.

R. v. Crawford; R. v. Creighton 1995 138 (SCC), [1995] S.C.J. No. 30 (S.C.C.) at paras. 28-32

[4] The trial court’s decision with respect to severance requires the exercise of a great deal of discretion. The court must be satisfied that the ends of justice require the order. An appellate court should not interfere with the exercise of this discretion unless it is shown that the issuing judge acted unjudicially or that the ruling resulted in an injustice.

R. v. Litchfield 1993 44 (SCC), [1993] S.C.J. No. 127 (S.C.C.) at para. 30

R. v. Last 2009 SCC 45, [2009] S.C.J. No. 45 (S.C.C.) at paras. 14 - 16

[5] The Supreme Court of Canada has set out that there are a number of factors to be weighed when determining whether to sever or not. The weighing exercise is meant to ensure that a reasonable balance is struck between the risk of prejudice to an accused person and the public interest in a single, joint trial.

R. v. Last, supra at para. 17

[6] For a number of valid policy reasons the presumption is in favour of a single trial. The Supreme Court has reminded us that “[i]t is important to recall that the interests of justice often call for a joint trial” and that “[severance] can impair not only trial efficiency but the truth seeking function of the trial.”

R. v. Last, supra at para. 17

[7] The factors enumerated by the Supreme Court in R. v. Last, supra are not exhaustive but are meant to help capture how the interests of justice may be served in a particular case and how best to avoid a potential injustice. The factors listed include:

a) the general prejudice to the accused;

b) the legal and factual nexus between the counts;

c) the complexity of the evidence;

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

e) the possibility of inconsistent verdicts;

f) the desire to avoid a multiplicity of proceedings;

g) the use of similar fact evidence at trial;

h) the length of the trial having regard to the evidence to be called;

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

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

R. v. Last, supra at para. 18

[8] I agree with the respondent that:

(i) there is a clear legal and factual nexus between the counts;

(ii) this is a two week trial;

(iii) there are a large number of witnesses;

(iv) there are phone records and medical evidence;

(v) there is a desire to avoid a multiplicity of proceedings and the possibility of inconsistent verdicts;

(vi) Smith is in custody and his trial would proceed first if severed. Gallant’s will be delayed the existence of antagonistic defences between the two accused remains unknown.

[9] Counsel for the applicant does not really dispute the respondent’s submissions. Smith alleges that he is entitled to severance on the basis of the prejudice which may arise if he is required to proceed to trial on the same indictment as Gallant given that Gallant has made a statement to police inculpating himself and because such statement is acknowledged as being voluntarily by Gallant and will be tendered into evidence by the Crown.

[10] He submits that Gallant’s statement to the police placing Smith at the scene of the incident if heard at a joint trial will result in an injustice because of the prejudice that hearing this evidence will cause to Smith.

[11] Counsel for the applicant submits that Regina v. Lane and Ross, 1969 545 (ON SC), [1969] O.J. No. 1516 (which continues to maintain the appropriateness of R. v. Weir, (1899) 1899 105 (QC CQ), 3 C.C.C. 351) sets out five factors to consider in a severance application, of which two apply to these facts:

(1) that evidence which is incompetent against one defendant, is to be introduced against another, and that it would work prejudicially to the former with the jury;

(2) that a confession made by one of the defendants, if introduced and proved, would be calculated to prejudice the jury against the other defendants.

[12] The applicant’s position is that Darlene McCoy, his previous partner and mother of their child, will be testifying at the trial and that she is now embroiled in a custody battle with the applicant and as a result her credibility will be front and centre. He is correct but that factor alone does not mandate severance. He believes that a jury hearing Gallant’s statement will somehow be able to bolster Ms. McCoy’s credibility as a result and that the jury will not be able to properly apply the law that Gallant’s statement only applies to Gallant, and is not evidence to be used against Smith. He is essentially saying that once the pink elephant is let out, the jurors will not be able to forget it.

[13] Evidence which is suggestive of an accused person’s guilt is not prejudicial. Prejudice is not a term to be applied to evidence which affords proof of guilt but is reserved for evidence that operates unfairly or on the basis of impermissible reasoning to suggest guilt. Thus, “[w]hat may be unfortunate or disappointing is not necessarily unfair.”

R. v. Johnson [2011] O.J. No. 4302 at para. 49

[14] The statements of a co-accused tendered during a joint trial may raise the spectre of prejudice, but this alone is not a sufficient basis upon which to order severance. In R. v. Court and Monaghan, Monaghan argued that there was very little evidence against him whereas there was a substantial body of evidence that was admissible against his co-accused Court that was both inadmissible against Monaghan and very prejudicial to him. The trial judge found that Court’s statements implicating Monaghan were prejudicial to Monaghan but held that a direction to the jury that this evidence was not admissible against Monaghan was sufficient to allay the prejudice. The Ontario Court of Appeal endorsed the notion that a severance would have violated the rule that “prima facie where the accused are involved in a joint enterprise, they should be tried together.” The Court of Appeal thus found no error in the decision to refuse severance and held that, “as the pre-trial judge anticipated, the statements by Court . . . that implicated Monaghan were properly dealt with by the trial judge’s repeated and strong instructions to the jury that they were not to use Court’s staements as evidence for or against Monaghan.”

R. v. Court and Monaghan, 1995 1741 (ON CA), [1995] O.J. No. 1368 (Ont. C.A.) p. 19

[15] In the case of R. v. Olah and Rushton, 1997 3023 (ON CA), [1997] O.J. No. 1579 (Ont. C.A.), the court considered during the course of a severance application by Rushton, Olah’s two statements to police. In reviewing those statements, the trial judge commented that at para 37:

To say that each statement is graphic, complete, detailed and convincing would be an understatement. As would be expected in a joint enterprise, which is what is here alleged by the Crown, the statement of one accused of necessity makes reference to the other person.

[16] The Court of Appeal found no error in the decision to refuse severance. Instead the appellate court found that with the careful editing of Olah’s statements which was undertaken; the repeated cautions to the jury about the use which could be made of those statements which emphasized the fact that Olah’s statemements were not evidence against Rushton; it was clear that the trial judge “considered all of the appropriate factors, including, most importantly prejudice to Rushton, as a result of Olah’s comments about him in his police statements.”

2. With respect to the issue of severance in circumstances in which the statements of the three accused were to be tendered and each of these statements implicated their co-accused, the Court of Appeal in R. v. McLeod 1983 3605 (ON CA), [1983] O.J. No. 81 (Ont. C.A.) at para 10 stated:

Whether a jury can or cannot rise above such evidence, there is no question that our law presumes they can. Our law is that ‘the rule is well established that prima facie where the essence of the case is that the accused were acting in concert, they should be jointly indicted and tried, and an appellate Court will not interfere with the discretion to of the trial Judge unless he has failed to exercise it judicially or his decision has caused a miscarriage of justice’ . . . The existence of statements of co-accused is, of course, a factor to be considered in the exercise of that discretion and was indeed considered by the trial judge in the instant case.

[17] A strong, clear and concise limiting instruction as to the use of Gallant’s statement will be necessary and easily made and easily repeated to the jury. The applicant has not established on a balance of probabilities that a joint trial will result in an injustice. The application is dismissed.

The Honourable Madam Justice J.E. Ferguson

RELEASED: April 30, 2012