SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO. : CR13-70000197-0000
DATE: 20130402

RE: HER MAJESTY THE QUEEEN

• and -

MIKHAIL GOMEZ

BEFORE: G.R. Strathy J.

COUNSEL:
Yeshe Laine, for the Crown

Sharon Jeethan, for the Accused

DATE HEARD: March 12, 2013

R E A S O N S F O R R U L I N G: R E - J O I N D E R O F A C C U S E D S

[1] Mikhail Gomez stood charged on an indictment containing six counts: (1) conspiracy to rob; (2) robbery while armed with a firearm; (3) assault; (4) wearing a disguise with intent; (5) possession of property obtained by crime; and (6) possession of cocaine. The alleged offences arose out of the robbery of a Toronto convenience store by two men on January 6, 2010.

[2] Mr. Gomez was originally jointly charged with Nicholas John. The trial was scheduled to begin on March 11, 2013. On that day, counsel for Mr. John applied to be removed as counsel of record. McMahon J. made an order to that effect. Crown counsel then applied to sever the counts against Mr. Gomez, as the matter was very dated. The defence consented and said Mr. Gomez was ready to proceed to trial. McMahon J. ordered accordingly. Mr. John’s trial was adjourned to permit him to retain new counsel.

[3] The defence then realized the Crown had subpoenaed Mr. John to give evidence at Mr. Gomez’s trial. Mr. John had provided an inculpatory statement to the police. A videotape of the statement, and a transcript, had been in the possession of defence counsel for some time. Counsel for Mr. Gomez sought to withdraw her consent to the severance. McMahon J. put Mr. Gomez’s matter over for trial before me on March 12, 2013, and defence counsel renewed her request for joinder at the commencement of this trial.

[4] After hearing and considering the submissions of counsel, I denied the application to rejoin the trial of the accuseds, with reasons to follow. These are my reasons.

[5] Section 591(3)(b) of the Criminal Code provides that a court may sever the trial of a co-accused if satisfied “the interests of justice so require.” The interests of justice encompass those of the accused and the co-accused, as well as society’s interest in ensuring justice is done in a reasonably efficient and cost-effective manner: R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146 at para. 16.

[6] There is a presumption that co-accused who are said to have acted together, should be tried together: R. v. Savoury, 2005 25884 (ON CA), [2005] O.J. No. 3112 (C.A.); R. v. Chow, 2005 SCC 24. As the Court of Appeal noted in R. v. Sarrazin, 2005 11388 (ON CA), [2005] O.J. No. 1404, there are strong policy reasons for this principle. It enhances the truth-finding process, precludes the possibility of inconsistent verdicts and avoids the cost and inconvenience of multiple trials of the same issues. In determining whether to sever the trial, the court must consider these factors, as well as the desirability of avoiding a multiplicity of proceedings and the effect of two proceedings on institutional resources and the administration of justice.

[7] A number of factors at play in this militate against the application of the usual rule. First, there is a societal interest in trial within a reasonable time. The defence acknowledged this when it agreed to the severance. This case was already more than three years old, and it could now take six to nine months for Mr. John to instruct counsel and be ready for his trial.

[8] Second, the case against Mr. Gomez was completely ready for trial – his counsel and Crown counsel were ready and had reserved the time. Three civilian witnesses had made themselves available and had arranged their lives accordingly. Nine police officers had adjusted their schedules to be available to testify. Court time had been set aside for this case. These arrangements would have been wasted if the matter did not proceed. Public confidence in the efficient administration of justice would be eroded.

[9] Third, severance of the trials would not impair the truth-finding process. In fact, having Mr. John’s evidence available at this trial would enhance that process.

[10] Fourth, there was no demonstrable prejudice to Mr. Gomez. The Crown offered to call Mr. John as its last witness, a proposal that defence counsel acknowledged was reasonable. On the morning of Friday, March 15, 2013, at the conclusion of the evidence of all Crown witnesses other than Mr. John, I adjourned the matter to Tuesday, March 19, 2013, to permit Mr. John to consult with new counsel before he testified and to permit counsel for Mr. Gomez to interview him, as she requested, prior to his testimony.

[11] Fifth, this is not a lengthy or complex case. If two trials are required, the demand on institutional resources will not be excessive.

[12] Sixth, the fundamental issue in this case was the identity of the two men who robbed the convenience store. A “cut-throat” defence was unlikely. The possibility of inconsistent verdicts was low. As it was anticipated that Mr. John would testify, there was minimal risk that one defendant could successfully blame the other.

[13] While a joint trial of co-accuseds is generally desirable, it is not a fundamental right of an accused in all circumstances. In asking to withdraw its consent to a severance, the defence was attempting to replace one tactical decision with another tactical decision. In initially supporting severance, the defence acknowledged that the interests of justice and the interests of Mr. Gomez favoured severance. Defence counsel submitted that she had been told by Mr. John’s previous counsel that he would not be testifying, but she could not have been assured of that. Nor could she have been assured of that if the matters were re-joined. When she consented to the severance, defence counsel could reasonably have anticipated that Mr. John would be compellable to testify in the proceeding against her client and that he might well do so. Defence counsel was provided with adequate time to prepare for his cross-examination and was entitled to fully explore the circumstances in which he made his inculpatory statement.

[14] For these reasons, I dismissed the application of Mr. Gomez for joinder of his trial with Mr. John’s trial.

G.R. Strathy J.

DATE: April 2, 2013