ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 5-518/12
DATE: 20130207
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SHAUN FALLS
Applicant
Elizabeth Jackson and Glenn Brotherston, for the Crown
Gary J. Grill, for the Applicant
HEARD: January 25, 2013
b. p. o’marra j.
ruling
the application
[1] Shaun Falls is one of five persons named on an Indictment listing 14 counts. He is solely charged on Counts 6 through 13 inclusive. Count 6 alleges that he trafficked in cocaine on April 6, 2011. Count 7 through 13 inclusive relate to a handgun, cash proceeds of crime and possession of cocaine for the purpose of trafficking. Those latter counts all flow from search warrants that were executed on May 11, 2011.
[2] Mr. Falls applies to sever his trial from the other defendants and to proceed before a Justice without a jury.
overview
[3] The Crown alleges that the five persons on this Indictment along with N.K. were involved in a joint enterprise to traffic in narcotics. N.K. apparently fled the country before arrests were made and remains at large. Mr. Falls was implicated based significantly on surveillance conducted in regard to N.K.
[4] On April 6, 2011 surveillance linked Mr. Falls and N.K. to S.J. who was found in possession of almost 100 grams of cocaine. There are intercepted phone communications on April 5 and 6, 2011 that link Mr. Falls to N.K. and S.J. preceding this drug seizure.
[5] Search warrants were executed on May 11, 2011. The items seized at the residence of Mr. Falls included a loaded firearm, $30,000 cash and cocaine.
[6] Mr. Falls elected trial by judge alone in the Superior Court. However, the matter is scheduled to proceed with a jury based on the mode of trial chosen by the co-defendants.
ss. 565(1)(b) and 567 of the Criminal Code
[7] Dates for trial and judicial pre-trials are to be set in February of 2013. The other defendants will be bringing various Garofoli motions in June of 2013.
position of the applicant
[8] Counsel for Mr. Falls submits that severance would be in the interests of justice based on the following prejudice that he will suffer should he proceed on a joint trial:
He is denied his choice of mode of trial.
The trial will not be scheduled in a timely fashion.
The joint trial would be significantly longer and present hardships relating to the ability of the applicant to fund counsel of his choice.
In a joint trial there is a danger that the merits of the applicant’s case will be lost amidst the evidence and allegations against the co-defendants.
There is a risk that the applicant will be found guilty by association to the other co-defendants.
The applicant claims that he does not face any allegations in common with the co-accused.
A judge alone trial will be far more efficient and shorter for the applicant.
The charge to the jury on the joint trial will be extremely complicated and may prejudice the interests of the applicant.
position of the respondent
[9] The Crown is opposed to the severance based on the alleged joint enterprise involving Mr. Falls and the other defendants.
analysis
[10] The court may, where it is satisfied that the interests of justice require, order that one or more of the defendants on an indictment be tried separately.
s. 591(3)(b) of the Criminal Code of Canada.
[11] 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. Courts have given shape to the broad criteria established in the Criminal Code and have identified factors when deciding whether to order severance or not. The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial. It is important to recall that the interest of justice often call for a joint trial. Among the factors identified by courts on this issue are the following:
− General prejudice to the accused;
− the legal and factual nexus between the accused;
− the complexity of the evidence;
− whether the accused intends to testify;
− 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;
− the potential prejudice to the accused with respect to the right to be tried within reasonable time; and
− the existence of antagonistic defences as between co-accused persons.
R. v. Last 2009 SCC 45, [2009], 3 S.C.R. 146 at paras. 16-18.
[12] It is well established that separate trials for alleged co-conspirators are the exception not the rule.
R. v. Chow 2005 SCC 24, [2005] 1 S.C.R. 384 at para. 47.
[13] The discretion to order separate trials must be exercised on the basis of legal principle, including the principle that severance should not be ordered unless it is established that a joint trial will work an injustice to the defendant.
R. v. Crawford 1995 138 (SCC), [1995] 1 S.C.R. 858 at para. 31.
[14] An accused who seeks severance from the other accused must overcome the presumption that co-accused who are jointly charged and said to have acted in concert should be tried together.
R. v. Savoury (2005) 31 C.R. (6th) O.C.A. at para. 22.
[15] In this case there is an important evidential link between Mr. Falls and N.K. who is in turn linked significantly to the other defendants on this indictment. The investigation culminated in charges against some 30 people. The Crown has recognized the potential challenges of having too many defendants on one indictment and proceeded to break down the various accused into smaller more manageable groups. Mr. Falls is one of five on this particular Indictment.
[16] One of the concerns of the applicant is that he is being denied his choice of mode of trial. The Criminal Code specifically recognizes situations where co-accused make different elections. It would not be in the interests of justice that a severance could be effected by an individual defendant simply making a different election.
[17] On a joint trial the applicant retains all his rights under s. 11(b) of the Charter. The potential for undue delay is a risk for the Crown to bear in mind.
[18] A joint trial will invariably be longer than the trial of one person. However, that alone is not a basis to order severance. Issues related to the ability of Mr. Falls to retain counsel of choice for a relatively lengthy trial by itself is not a basis to order severance.
[19] The applicant asserts a risk of prejudice in terms of “guilt by association” with the other defendants. On a joint trial some evidence may be admissible for a limited purpose or admissible against some but not others. The trial judge on a joint trial with the assistance of counsel can provide careful instructions including mid-trial instructions as to the limited or prohibited use of certain evidence.
[20] Based on the material filed on this application, I cannot agree that applicant does not face any allegations in common with his co-accused. There is the evidential link to N.K. and also to other defendants named on the indictment in the context of an alleged drug trafficking network. If the evidence should unfold differently in the course of the trial the applicant could renew his application for severance.
[21] The applicant advises that he is not implicated on any of the intercepted communications and would not seek to exclude any in the course of the Garofoli motions brought by the other defendants. The applicant intends to rely on some of these intercepts to prove his innocence. If that is the case, counsel with instructions could apply to the trial judge to be excused from attending the Garofoli motions pursuant to s. 650(2)(b) of the Criminal Code. That would lessen the time commitment and expense of trial counsel.
result
[22] The application for severance is dismissed. I am grateful to all counsel for their helpful submissions and materials filed on this application.
B. P. O’Marra J.
Released: February 7, 2013
COURT FILE NO.: 5-518/12
DATE: 20130207
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
SHAUN FALLS
Applicant
RULING
B. P. O’Marra J.
Released: February 7, 2013