ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-R1884-01/12-R1884-02
DATE: 2013-06-06
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
MUSTAFA MOHAMOUD
Respondent
Dallas Mack and Matthew Humphreys, for the Crown
Alan Brass, for the Respondent
HEARD: May 9, 2013 (Ottawa)
REASONS FOR decision
PARFETT J.
[1] Defence counsel requests a severance of count #14 from the remainder of the fourteen count indictment alleging separate robberies or attempted robberies over the course of nine months from July 2011 to March 2012.
Background
[2] Between July 21, 2011 and September 28, 2011, there were eight robberies and two attempted robberies of convenience stores in the National Capital Region. On October 1 and 5, 2011, two more robberies took place; one in Kemptville and one in Rockland, Ontario. After the robbery on October 5, 2011 in Rockland, two people were apprehended – Isman Osman – the co-accused and Carlyle Waldron. Osman was released and placed under surveillance. On October 25, 2011, he and a man later identified as Mustafa Mohamoud were seen by police looking around a convenience store. The police concluded that the two men were preparing to rob the store and consequently, they stopped and arrested both men. Mohamoud closely resembled one of the persons seen with Osman on videotapes of several of the earlier robberies. As a result, he was charged along with Osman in those robberies. Mohamoud was released on a recognizance. On March 22, 2012, he was caught by police after allegedly committing a further convenience store robbery.
[3] Two informations were laid originally – a multi-count information with respect to the July to September robberies and attempt robberies in which Mohamoud was charged with Osman, and a second, one count information with respect to the March 2012 robbery. After the preliminary hearings in which Mohamoud was committed to stand trial, the Crown joined the two informations on a single indictment. Defence now seeks to sever the March 22, 2012 robbery count from the remaining counts.
Positions of the parties
[4] The Crown argues that there are substantial similarities among all the robberies, including the robbery of March 22, 2012. It is their intention to apply to the court to use the March robbery as similar fact evidence with respect to the remaining robbery counts as they relate to Mohamoud.
[5] Defence contends that there is no legal or factual nexus between all the various counts and in particular, the March 22nd count. In addition, he argues that there is substantial prejudice that will flow from trying all the counts together.
Legal principles
[6] Section 591(1) states,
Subject to section 589 [not relevant in this case], any number of counts for any number of offences may be joined in the same indictment, but the counts shall be distinguished in the manner shown in Form 4.
[7] Section 591(3) states,
The court may, where it is satisfied that the interests of justice so require, order
(a) that the accused or defendant be tried separately on one or more of the counts;
[8] R. v. Last[^1] sets out the factors that are to be considered in determining whether a severance is required. They are:
general prejudice to the accused;
legal and factual nexus between the counts;
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 between co-accused persons.[^2]
[9] Not all these factors are relevant to the circumstances of this case. The primary factors that are at play are prejudice to the accused, legal and factual nexus, and use of similar fact evidence. As noted earlier, Defence argues that there is prejudice that will inure to the accused if all the counts are tried together. However, much of the prejudice that Defence referred to in his submissions was the potential prejudice stemming from the fact that the evidence against the co-accused Osman is somewhat stronger than the evidence against Mohamoud. Given that Defence is asking for a severance of counts and not of the accused, I am not sure how this argument advanced Defence’s position.
[10] Defence also argued that the strength of the evidence against his client in the March 22incident might cause prejudice with respect to the jury’s assessment of the evidence on the other counts. This contention is a legitimate one and the Supreme Court of Canada noted in the Last decision that:
The interests of justice encompass 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 obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.[^3]
[11] This issue was also highlighted in R. v. Jeanvenne[^4] where the Ontario Court of Appeal noted:
This flows from the common sense proposition that a jury may have great difficulty dissociating the evidence of one homicide from the other and in refraining from drawing the impermissible inference that because the accused may have committed one murder – bad character evidence of the highest degree – he or she is likely to have committed the other. The potential for serious prejudice to the accused is at its zenith in such circumstances. When there is not similar fact evidence connecting the two crimes, there is even less justification for refusing to sever.[^5]
[12] Critical to the issue of potential misuse by the jury of the evidence on multiple counts is whether there is similar fact evidence. In this case, Defence argued strenuously that there was insufficient similarity between the July to September 2011 counts and the March 2012 count to justify trying them together.
[13] Crown stated that it is their intention to bring a similar fact application in order to apply the evidence on each count against the remaining counts. As noted by the Crown, all that has to be shown with respect to similar fact evidence on a severance application is whether the Crown has a viable similar fact evidence argument to make.[^6] In my view, the Crown does.
[14] Defence highlighted all the differences between the various robbery counts and in particular the differences between the March 22 incident and the other incidents. Unquestionably, there are certain differences. However, there are also many similarities. These similarities were outlined in detail in the preliminary inquiry judge’s reasons on the similar fact application the Crown presented at that time. I adopt her statements regarding the similarities and concur with her opinion that they are many and striking.[^7]
[15] In addition, appropriate jury instructions will serve to militate against the risk of propensity reasoning by the jury. As noted by the British Columbia Court of Appeal in R. v. Blacklaws[^8]:
Courts have not been blind to the peril of propensity reasoning that arises where multiple counts are heard together. However, under the law as it stands, this risk does not require that separate trials be ordered in every such case. Rather, judges may address the danger through an appropriate jury instruction. This principle was confirmed by this Court in R. v. Niedermier, 2005 BCCA 15, [2005] B.C.J. No. 25 (B.C. C.A.), among other cases.[^9]
[16] Finally, the similarities between all the counts, including the March 22incident, underline the factual nexus. In addition, there is a strong legal nexus as identification is the issue on all the counts. As a last comment, although the evidence on all counts overlaps to a limited degree, neither a joint trial nor a severed trial would have a significant impact on the length of the trial.
Conclusion
[17] In my view, taking into consideration all the various factors, Defence has failed to make out a case for severing the March 22count from the remaining counts on the indictment. The application is therefore dismissed.
Madam Justice Julianne A. Parfett
Released: June 6, 2013
COURT FILE NO.: 12-R1884-01/12-R1884-02
DATE: 2013-06-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
MUSTAFA MOHAMOUD
Respondent
REASONS FOR DECISION
Parfett J.
Released: June 6, 2013
[^1]: 2009 SCC 45, 2009 CarswellOnt 6137 (S.C.C.).
[^2]: Ibid., at para. 18.
[^3]: Ibid., at para. 16.
[^4]: 2010 ONCA 706.
[^5]: Ibid., at para. 34.
[^6]: See R. v. I.B., 2013 CarswellOnt 4067 (SCJ) and R. v. Waudby, 2011 CarswellOnt 12228 (CA).
[^7]: Unreported Reasons for decision on SFE application by Mme. Justice D. Lahaie, dated February 20, 2013 at pp. 46-58.
[^8]: 2012 BCCA 217, 285 C.C.C. (3d) 132.
[^9]: At para. 62 by C.J.B.C. Finch, in the minority at the Court of Appeal, though his reasons were subsequently adopted by the Supreme Court of Canada on appeal (2013 SCC 8).