R. v. Tyrell, 2013 ONSC 6520
COURT FILE NO.: CR-13-50000518-0000
DATE: 2013-08-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
LEVAR TYRELL
Applicant
COUNSEL: R. Krueger, for the Respondent, Her Majesty the Queen J. Erickson for the Applicant, Levar Tyrell
HEARD: August 2, 2013
BEFORE: Thorburn J.
R U L I N G
1. Reasons Given in Support of Proposed Severance of the action against Tyrell from that of his Co-accused Omar Grizzle
[1] The accused, Levar Tyrell and his co-accused Omar Grizzle, have been jointly charged with possession of a loaded firearm and magazine capable of holding more than ten bullets and Tyrell alone is charged with possession of a second loaded prohibited firearm and magazine identical to the first. Both were found as a result of the execution of a search warrant at 2009 Eglinton Avenue East, suite 309, on May 4, 2010. Both Tyrell and Grizzle were in the apartment at the time the firearms were located by police.
[2] Tyrell seeks an order severing counts 1, 2, 3, and 7 on the indictment that refer to both Omar Grizzle and Levar Tyrell, and directing that two separate trials be ordered: the first to deal with the counts 1, 2, 3, and 7 as they pertain to Tyrell and counts 4, 5, 6 and 8 that only pertain to Tyrell, and the second trial to deal with the counts 1, 2, 3, and 7 as they pertain to Omar Grizzle. Omar Grizzle supports Tyrell’s Application.
[3] The Crown opposes this Application to sever.
[4] Tyrell takes the position that his right to make full answer and defence to the charges against him is impeded by his inability to bring out the following evidence that pertains to his co-accused Grizzle:
(a) Grizzle was the target of a police investigation that resulted in the search of the premises where the two firearms were found;
(b) included in the search was information that Grizzle was wanted in connection with an armed robbery; and
(c) there was a photograph of Grizzle with a tattoo that Tyrell suggests, shows Grizzle was a member of the Five Point Generals which, he submits, is a criminal organization.
[5] It is agreed that none of this evidence serves to exonerate Tyrell but Tyrell’s counsel suggests this bad character evidence regarding Grizzle would assist Tyrell in raising a reasonable doubt as to his own guilt on these charges.
[6] Later in the day upon which this Application was argued, during the cross examination of a Crown witness, Grizzle’s counsel brought to the jury’s attention the fact that Grizzle was the target of the police investigation.
[7] Moreover, evidence has been adduced at trial that the search warrant specified that in entering the premises, police were to look for firearms and other things.
[8] Since the jury is now aware that Grizzle was the target of the police investigation, I need not address whether it should be permitted to be adduced, in support of Tyrell’s request to sever this proceeding.
2. The Law of Severance
[9] Section 591 of the Criminal Code R.S.C. 1985, c. C-46 governs the joinder of counts in an indictment:
(1) Subject to section 589, any number of counts for any number of offences may be joined in the same indictment …
(2) Where there is more than one count in an indictment, each count may be treated as a separate indictment.
(3) 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; and
(b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts.
(4) An order under subsection (3) may be made before or during the trial but, if the order is made during the trial, the jury shall be discharged from giving a verdict on the counts,
(a) on which the trial does not proceed; or
(b) in respect of the accused or accused who has been granted a separate trial.
[10] The Crown may exercise its discretion pursuant to section 591(1) of the Criminal Code, and decide to include more than one count in an indictment “where it is satisfied that the interests of justice so require.” 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. (R. v. Last, 2009 SCC 45 at para. 16.)
[11] No specific guidelines for granting severance are set out in the legislation.
[12] On an application to sever a multi-count indictment, the overarching criteria are the interests of justice. The trial judge must assess the weight of the relevant factors and their cumulative effect on the interests of justice. The onus is on the accused to show on a balance of probabilities that the ends of justice require severance. The risk when counts are tried together, is that the evidence admissible on one count will influence the verdict on an unrelated count. Severance on the other hand, can impair not only efficiency but the truth-seeking function of the trial. (R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333.)
[13] Courts have identified a non-exhaustive list of factors that can be weighed when deciding whether or not to sever, balancing the prejudice to the accused and the public interest in a single trial. They include:
(i) general prejudice to the accused;
(ii) the legal and factual nexus between the counts;
(iii) the complexity of the evidence;
(iv) whether the accused intends to testify on one count but not another;
(v) the possibility of inconsistent verdicts;
(vi) the desire to avoid a multiplicity of proceedings;
(vii) the length of the trial having regard to the evidence to be called;
(viii) the use of similar fact evidence at trial;
(ix) the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and
(x) the existence of antagonistic defences as between co‑accused persons.
(See Last, at para. 17; R. v. E. (L.), (1994), 1994 CanLII 1785 (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.), at p. 238; R. v. Cross, (1996), 1996 CanLII 5992 (QC CA), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419; and R. v. Cuthbert, (1996), 1996 CanLII 8341 (BC CA), 106 C.C.C. (3d) 28 (B.C.C.A.), at para. 9, aff’d, 1997 CanLII 397 (SCC), [1997] 1 S.C.R. 8 (sub nom. R. v. C. (D.A.)).
3. Application of the Law of Severance to the Facts in this Case
(i) Risk of Prejudice to the Accused
[14] Tyrell seeks to sever the claims against him from those against Grizzle which, he says, would allow him to introduce evidence of Grizzle’s past bad behaviour, not because it would exonerate Tyrell, but because a jury might acquit Tyrell on the basis that they believe Grizzle was the kind of person who would commit these types of crimes and therefore be less likely to think Tyrell committed them.
[15] Tyrell suggests that the jury may be less likely to believe he was the person in possession of the firearms if they are made aware that there is a photograph of Grizzle sporting a tattoo which may suggest he was a member of the Five Point Generals and that Grizzle was also wanted in connection with an armed robbery. As such, Tyrell suggests he will be prejudiced if this evidence cannot be adduced at his trial.
[16] Firstly, the jury is already aware that Tyrell was a target of the investigation and ensuing search warrant to search for guns.
[17] Secondly, this evidence cannot be adduced by the Crown as it is not relevant to these charges and would lead the jury to engage in propensity reasoning.
[18] Admissible propensity evidence is evidence that shows a pattern of circumstances in which an accused is disposed to act in a certain way which is so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity, or a mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact. It is repeated conduct in a particular and highly specific type of situation that may fill a remaining gap in the jigsaw puzzle of proof, depending on the view ultimately taken by the jury. Propensity reasoning based solely on the general bad character is prohibited. (R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at para. 55 at paras. 67-68 and 91, citing R. v. B. (L.) (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35 (C.A.) at page 57 and R. v. W. B. (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321at para. 104.)
[19] The courts have held that a trial judge may not allow one accused to adduce evidence of the bad character of a co-accused unless it is necessary to enable that accused to make full answer and defence. (R. v. Pollock 187 C.C.C. (3d) 217 (Ont. C.A.) at para 119.)
[20] Thirdly, all of the evidence sought to be adduced is hearsay evidence. None of the officers who have or will be called to testify for the Crown was involved in preparation of the search warrant and none has direct knowledge of the basis of the statements contained in the search warrant. As such, any evidence that could be adduced by Crown witnesses as to Grizzle’s connection to an armed robbery or his participation in a criminal organization, would be inadmissible hearsay.
[21] For these reasons, I do not believe severance is necessary to overcome undue prejudice to Tyrell.
(ii) Nexus Between the Two Incidents
[22] Another factor to be considered on a severance application is whether there is any legal or factual nexus between the counts.
[23] There is a strong factual and legal nexus between the two incidents. Both accused were found in the apartment at the time the apartment was searched and two loaded firearms of identical make were found. Both Tyrell and Grizzle have been charged with possession of a loaded prohibited firearm and magazine pursuant to the same sections of the Criminal Code.
(iii) Complexity of the Evidence and Effect on the Length of Trial
[24] The evidence in this case is not complex. The evidence consists of testimony of the officers as to the execution of the search warrant on the day in question and the items they claim were found at the premises during the course of the search. Most if not all of the Crown witnesses would be the same whether the proceedings are joined or not. Joinder of the two proceedings will not significantly increase the length of trial. On the contrary, there will be considerable efficiency as the Crown witnesses will not have to testify twice.
(iv) The Accused’s Intention to Testify
[25] The underlying concern is for the accused’s ability to control his defence, and, more specifically, his right to decide whether or not to testify with respect to each of the counts. Tyrell does not assert that joinder of these proceedings will affect his decision to testify.
(v) Risk of Inconsistent Verdicts
[26] Tyrell and Grizzle are jointly charged with possession of the same firearm and magazine where they were staying on the night in question. If severance is granted there is a real risk of inconsistent verdicts. Tyrell asserts that if severance is granted, he would adduce bad character evidence about Grizzle as Defence evidence at his trial, that would not be adduced at Grizzle’s trial.
(vi and vii) Policy Reasons to Avoid Multiple Proceedings and the Effect on Trial Length
[27] There are clear gains in judicial economy from avoiding multiple proceedings. Most of the witnesses in this case are police officers involved in entering and securing the premises, searching the premises and dealing with the occupants of the promises. In addition, one of the other occupants of the premises will testify for the Crown. Most if not all of these witnesses would all have to testify twice if the trial were severed. Joinder would result in a greatly reduced time for the hearing of evidence against these two accused.
(viii) Similar Fact Evidence
[28] No submissions were made by Tyrell’s counsel as to any prejudice as a result of similar fact evidence.
(ix) Prejudice for the Accused Right to a Trial within a Reasonable Time
[29] The Criminal Proceedings Rules for the Superior Court of Justice (Ontario) SI/2012-7 provide that,
6.05(1) Unless otherwise ordered by a judge of the court or otherwise provided by these rules, an applicant shall serve on every other party and file an application record in accordance with rule 6.05(2), not later than thirty (30) days before the date of the hearing of the application.
[30] Tyrell’s counsel suggests that the case against him should be severed from that of Grizzle and that Grizzle’s case should continue and Tyrell’s case be adjourned to a later date.
[31] When asked why the issue of severance was raised for the first time part way through the trial, he stated that he was taken by surprise by the fact that Grizzle’s counsel notified the other parties that he wished to confirm that the Crown would not lead hearsay evidence of Grizzle’s bad character. In my view, Grizzle’s desire not to introduce bad character evidence about him is something that could and should have been anticipated. There is no good reason why this Application was not brought in accordance with the timelines set out in the Criminal Proceedings Rules.
[32] Moreover, if these proceedings were severed, there would be real prejudice to Tyrell’s right to be tried within a reasonable time. I note that Tyrell’s counsel brought an Application to dismiss the proceedings against him for delay at the outset of trial which Application has been dismissed.
(x) Antagonistic Defences Between Co-accused
[33] In R. v. Crawford; R. v. Creighton, (1995) 1995 CanLII 138 (SCC), S.C.J. No. 30 at paras. 30-31, Sopinka J. stated that,
There exist strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly. The policy reasons apply with equal or greater force when each accused blames the other or others.
[34] The justification given is that the full truth is more likely to emerge if all alleged participants give an account of what happened on same occasion.
[35] Each of the accused in this case pleaded not guilty to possession of the loaded firearm and magazine and there is therefore a real concern that there will be antagonistic defences. All of those of knowledge of what took place should therefore testify at the same proceeding to avoid inconsistent results.
4. Conclusion
[36] In considering and weighing the above factors, I am mindful that severance should not be ordered unless it is established that a joint trial will work an injustice on the accused.
[37] In this case, I do not believe joinder of these charges is prejudicial to Tyrell for the following reasons:
(a) the evidence sought to be adduced is prohibited propensity reasoning;
(b) the evidence is hearsay as none of the Crown witnesses has any direct knowledge of the evidence sought to be adduced; and
(c) the evidence is not necessary to enable Tyrell to make full answer and defence as it does not serve to exonerate Tyrell but only to cast a cloud on the character of another accused person present at the time the search warrant was executed. (I say this mindful that the jury has already been informed by Grizzle’s counsel that Tyrell was a target of this investigation and ensuing search warrant to search for guns on the date the firearm and magazine in question were found.)
[38] Moreover, there are strong policy reasons for joinder including: the strong factual and legal nexus between the counts that pertain to Tyrell and those that pertain to Grizzle, a possibility of inconsistent verdicts if the case is severed, the risk of a multiplicity of proceedings with many of the same witnesses testifying at both proceedings if severance is granted, and the possibility of antagonistic defences as each accused has pleaded not guilty to possession of the same firearm and magazine. Severing this case would also result in further delay in hearing the case against Tyrell.
[39] There are compelling reasons for having a joint trial and no compelling reasons to sever. For the above reasons, the Application by Tyrell to sever counts 1 to 3 and 7 as they pertain to him from counts 1 to 3 and 7 as they pertain to Grizzle is denied.
Thorburn J.
Released: August 5, 2013
CITATION: R. v. Tyrell, 2013 ONSC 6520
COURT FILE NO.: CR-13-50000518-0000
DATE: 2013-08-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
LEVAR TYRELL
Applicant
RULING ON SEVERANCE
Thorburn J.
Released: August 5, 2013