ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-70000832

DATE: 20141128

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SAMSON ARVIKO, HASAN MOHAMMED CUMOR and RUKIYO OMAR

Defendants

J. Pollard and B. Clendenning, for the Crown

S. Freeman, for Samson Arviko

C. Rippell, for Hasan Mohammed Cumor

N. Wansbutter, for Rukiyo Omar

HEARD: October 14 and 15, 2014

molloy j.:

REASONS FOR DECISION #4

(Severance)

Background

[1] The three defendants are charged with: conspiring together to traffic in cocaine (Count 7); conspiring together to traffic in firearms (Count 1); and possession of a handgun for the purpose of transferring it (Count 6).

[2] In addition, Hasan Cumor and Rukiyo Omar are jointly charged with: unlicensed possession of a Ruger 40 caliber semi-automatic handgun (Count 2); possession of that same handgun knowing the serial number had been defaced (Count 3); and possession of proceeds of crime in the amount of approximately $10,000 (Count 4). The Ruger and the cash were found in a bedroom of a townhouse, which the Crown alleges they occupied and which was searched pursuant to a warrant.

[3] Ms Omar is also charged with possession of proceeds of crime in the approximate amount of $1600, found in her purse at the time of her arrest (Count 5).

[4] All seven counts were on the same indictment and were scheduled to proceed to trial before me, with a jury, on October 14, 2014.

[5] At the outset of the trial, a motion was made on behalf of Mr. Cumor for a ruling that he be permitted to adduce in evidence a statement made by Ms Omar to police after her arrest or, alternatively, for severance of the charges against him so that he could subpoena Ms Omar as a witness in his defence.

[6] I reserved on that motion until all of the pre-trial motions had been heard. Ultimately I concluded that the statement was not admissible, but that it was appropriate to sever the trial of Ms Omar from that of the other two accused. My reasons for that ruling are set out blelow.

The Omar Statement

[7] On February 8, 2011, officers of the Waterloo Regional Police Service executed a search warrant at a townhouse at Unit 27-67 Valleyview Drive in Kitchener, alleged to be the home of Ms Omar and Mr. Cumor. At the time of the search, Mr. Cumor and Ms Omar happened to be in the rental office, located in the parking lot of 67 Valleyview, and they were both arrested there.

[8] Ms Omar made some statements to the police at the scene, and also gave two video-taped statements to the police at the police station. Ms Omar brought a pre-trial motion to exclude her statements as having been obtained in breach of her right to counsel under s. 10(b) of the Charter of Rights and Freedoms. That motion was argued before MacDonnell J. on June 3, 2014. On June 11, 2014, MacDonnell J. issued his written decision, holding that: all of Ms Omar’s statements were obtained in a manner that infringed her s. 10(b) rights; the infringements were serious; the impact on the rights of the accused was significant; and admission of the statements into evidence would bring the administration of justice into disrepute. He therefore held that the statements were not admissible at trial.[^1]

[9] In her statement, Ms Omar told the police, among other things, that the money they had found in the apartment was hers. She said there was over $9000, and that she had won all of it at the casino, and then given it to Mr. Cumor to buy a car and find a new place to rent.

The Position of the Parties

[10] Mr. Cumor is charged with possession of proceeds of crime, being the cash found in the top floor bedroom of the townhouse. As part of his defence he wishes to elicit the evidence of Ms Omar that the cash was hers. There can be no assurance that Ms Omar will testify. Mr. Omar cannot call her as a witness in his defence as she is an accused in the same trial and not compellable. He therefore seeks to adduce the statement she gave to the police, not as evidence against her, but as evidence supporting his defence.

[11] The position of Ms Omar is that the statement cannot be admissible at trial for the reasons already articulated by Justice MacDonnell. Her counsel, Mr. Wansbutter, argues that admitting the statement would be highly prejudicial to Ms Omar and a violation of her rights. However, he had no objection to severance of the charges against Ms Omar, such that her evidence could then be adduced at the trial of Mr. Cumor.

[12] Ms Freeman, counsel for Mr. Arviko, was also unopposed to severance, preferring to have the trial proceed now against Ms. Omar and to have her client and Mr. Arviko tried together at the next available trial date, which is in January 2015. She advised that there would be no prejudice to Mr. Arviko as a result of the delay because he would be in custody on other charges in any event.

[13] Mr. Pollard, for the Crown, opposed severance based on the risk of inconsistent verdicts, multiplicity of proceedings, inconvenience to witnesses and delay. He submitted that the presumption in favour of trial together outweighed any benefit to Mr. Cumor in having a separate trial. However, he acknowledged that severance would be appropriate if the statement of Ms Omar is admitted at trial.

Analysis

[14] The statement of Ms Omar is hearsay and presumptively inadmissible. Before the statement can be admitted into evidence, I must be satisfied that the requirements of necessity and reliability are met, and also that the probative value of the statement outweighs any prejudicial impact.*

[15] If Ms Omar is tried together with Mr. Cumor, the necessity requirement is easily met because she is not a compellable witness at her own trial. The reliability requirement is not quite as straightforward. The statement is under oath, with an acknowledgment of the importance of telling the truth. However, it was obtained without providing Ms Omar with the opportunity to consult with a lawyer, as she had requested when she was arrested. Also, there was no cross-examination on the statement at the time it was made, and there can be no explanation of it at a joint trial unless the accused Ms Omar gives up her right to remain silent.

[16] I make no finding with respect to the reliability of the statement because of my conclusion upon weighing probative value as against prejudicial impact. The probative value of the statement is high as it provides a complete defence to Mr. Cumor on one of the charges against him and may also be relevant to other charges. However, I find the prejudicial impact to be more significant.

[17] I have considered two kinds of prejudice – prejudice to the judicial system if the statement is admitted and prejudice to Ms Omar if the jury draws inferences against as a result of the statement.

[18] There has already been a judicial determination that admission of this statement into evidence would bring the administration of justice into disrepute. Admitting the statement through the defence, as opposed to the Crown, does not alter the fact that the statement was obtained improperly in breach of Ms Omar’s Charter rights.

[19] MacDonnell J. has already determined that the statement is not admissible as against Ms Omar. If the statement is admitted as a defence in support of Mr. Cumor, this would have to be explained to the jury. The jury would need to be instructed that they could consider Ms Omar’s statement in deciding whether the money was proceeds of crime and whether it was in the possession of Mr. Cumor, but then must disregard the statement in considering whether Ms Omar is guilty of any of the crimes alleged against her. This would be an exceedingly task for a jury of laypersons. The prejudice to Ms Omar is plain and obvious with respect to the proceeds of crime charge. It is easily possible for the jury to believe that she owned the money, but to disbelieve that she won it at the casino. If they find that the money belonged to Ms Omar and therefore acquit Mr. Cumor on that count, it would be difficult for them to disregard the statement and also acquit Ms Omar. Also, if the jury infers that the money did not come from a casino, particularly in light of the way it was bundled in elastic bands, this might be used to infer guilt on either the drug trafficking or gun trafficking conspiracy charges. Further, if the money was hers, then it could be inferred that she had some measure of control over the bedroom and might also therefore be in possession of the Ruger handgun. There is a ripple effect that could be very difficult to prevent, notwithstanding the most careful of instructions to the jury. In my view, there is a very real risk that a jury would improperly consider the statement in assessing the guilt of Ms Omar in respect of the various charges against her.

[20] The admission by Ms Omar that she owned the money is highly probative in Mr. Cumor’s favour with respect to the possession of proceeds of crime charge against him, although not necessarily determinative. It would be possible, for example, for the jury to conclude that the money Ms Omar gave Mr. Cumor is not the money that was found in the bedroom. It would also be possible for the jury to conclude that the money was proceeds of crime, nothwithstanding the statement by Ms Omar that she won it at the casino, and find that both she and Mr. Cumor were in possession of it. The jury might also disbelieve Ms Omar’s statement completely. The statement is therefore not conclusive of Mr. Cumor’s innocence.

[21] There is a significant risk that the jury would misuse the statement and draw improper inferences from. That being so, and particularly in light of the Charter issues involved, I find that the prejudicial impact of the statement exceeds its probative value. The statement is not admissible.

[22] That said, I appreciate the difficulty this presents for Mr. Cumor who is now unable to mount an obvious defence to the proceeds of crime charge against him, i.e. that Ms Omar has admitted the money came from her. In my view, the best solution that meets the interests of justice and best protects the interests of both accused is that they be tried separately.

[23] The norm for these types of charges would be a trial together for all three accused and all counts on the indictment. The main counts on the indictment are the conspiracy charges. Usually, as a matter of general principle, it is preferable to have one trial against all of the alleged participants in a conspiracy, rather than separate trials. Likewise, Ms Omar and Mr. Cumor are jointly charged with possession of proceeds and possession of the handgun. Again, the presumption would be in favour of a joint trial for those counts.[^2]

[24] The Criminal Code authorizes a trial judge to exercise his or her discretion to order severance where satisfied that “the interests of justice so require.” Section 591(3) of the Criminal Code provides:

591(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.

[25] In R. v. Savoury,[^3] two accused (Savoury and Shaw) were jointly charged with armed robbery and aggravated assault and Savoury was also charged with attempted murder. The complainant in the robbery had known Shaw for years, and there was no question that Shaw was one of the two men in the car with the complainant at the time he was robbed at gunpoint and then shot. The identification of the other perpetrator was a live issue at trial. He was identified in a photo-lineup, but there were discrepancies between his appearance and the description of the perpetrator previously given by the complainant. Shaw had given a number of statements to the police in which he said that the man with him was not Savoury. At trial, Savoury sought severance so that he could call Shaw as a witness in his defence. The trial judge dismissed the severance motion, which decision was reversed by the Court of Appeal. Doherty J.A. held, at paras. 28-29:

Where an accused seeking severance contends that his right to make full answer and defence will be prejudiced unless the co-accused can be compelled to testify, two factors must be addressed by the trial judge:

• Is there a reasonable possibility that the co-accused, if made compellable by severance, would testify?

• If the co-accused would testify, is there a reasonable possibility that the co-accused’s evidence could affect the verdict in a manner favourable to the accused seeking severance?

If the accused seeking severance can convince the trial judge that there is a reasonable possibility that the co-accused will testify and that his testimony could affect the verdict by creating a reasonable doubt as to the accused’s guilt, the trial judge may properly grant severance. It is nonetheless open to the trial judge to exercise her discretion against severance if there are other factors of significant cogency that outweigh the potential impairment of the accused’s right to make full answer and defence occasioned by a joint trial. An accused is entitled to a fair trial, but not necessarily the ideal trial from the defence perspective: R. v. Cross (1996), 1996 5992 (QC CA), 112 C.C.C. (3d) 410 at 419 (Que. C.A.), leave to appeal to S.C.C. refused 114 C.C.C. (3d) vi.

[26] Applying the two factors in Savoury, there is a good prospect that Ms Omar would testify at trial if subpoenaed as a witness by Mr. Cumor. Further, given her prior police statement, she would likely testify that the money found by the police belonged to her. Such evidence would be favourable to the accused Cumor at least in respect of the proceeds charge, and potentially with respect to the other charges as well. This could affect the verdict against Mr. Cumor and therefore affects his right to make full answer and defence. While this is not determinative of the severance issue, it is strongly supportive.

[27] In R. v. Last, the Supreme Court of Canada held that the “interests of justice” test under s. 591(3) of the Code encompasses 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.” This involves a weighing exercise to strike a “reasonable balance” between “the risk of prejudice to the accused and the public interest in a single trial.” The Court set out the following list of relevant, but non-exhaustive, factors to be taken into account in determining whether to order severance:[^4]

(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; and

(j) the existence of antagonistic defences as between co‑accused persons.

[28] Some of these factors are of little impact to the analysis in this case.

[29] Legal and Factual Nexus: This is a factor strongly supporting joinder of counts and accused. All of the facts are inter-connected and arise from the same series of occurrences, largely reflected by surveillance and wiretaps. There is almost a complete overlap between the evidence to be called against Ms Omar and that against Mr. Cumor.

[30] Multiplicity of Proceedings, Length of Trial and Complexity: These factors favour trial together. The trial of the other two accused will take essentially the same amount of time, or very close to it, without the involvement of Ms Omar. However, the trial time is not completely doubled because Ms Omar elected trial without a jury, which resulted in a considerably shorter trial than previously estimated (just under three weeks, as opposed to the four to six week estimate with a jury). Further, I heard substantially all of the pre-trial motions with all three accused, and all parties agreed they would be bound by these rulings in the second trial. That will shorten the second trial when it does occur. That said, one trial would clearly be more expeditious and cost-effective than two.

[31] Risk of Inconsistent Verdicts. There is a risk of inconsistent verdicts if separate trials are held. In a separate trial involving Ms Omar I could make findings of fact e.g. about the ownership of the money or gun, or the existence of a conspiracy to traffic and a jury might reach different conclusions on the same evidence. That is always a problem when there is a legal and factual nexus between counts. This is a factor that supports a common trial rather than severance.

[32] Delay: It was apparent that if a severance order was to be made, the only sensible solution was to proceed first with the charges against Ms. Omar, and then later with the charges against the other two accused. Ms Omar’s counsel had scheduling difficulties through the winter which would significantly have delayed her trial. However, I was able to arrange a new trial date for the other two accused in early January when both their counsel were available. Delay is not a source of prejudice for Mr. Arviko as he is in custody on other charges in any event. Mr. Cumor is the one seeking severance, and did not do so previously. In any event, the delay is not substantial.

[33] Similar Fact Evidence and Testimony of the Accused on One Account: These are not factors

[34] Prejudice to the Accused: There would be substantial prejudice to Mr. Cumor if he is tried together with Ms Omar as he would be deprived of the ability to subpoena her as a witness in his defence. This is a factor that supports severance.

Conclusion

[35] There is no perfect solution for the competing interests at issue here. If Ms Omar is tried together with Mr. Cumor, he is deprived of a potential defence. That cannot be solved by admitting Ms Omar’s statement at the joint trial, because that would be highly prejudicial to Ms Omar and contrary to the interests of justice because of the Charter violation that surrounds the obtaining of the statement. The only way to protect the interests of both accused is to try them separately.

[36] There are some obvious problems with severance, the risk of inconsistent verdicts being chief among them. However, the delay involved is relatively short and does not prejudice the rights of any of the accused. There will be some duplication as the substantive evidence will have to be heard twice. However, the fact that I will have ruled on all of the pretrial motions will substantially shorten the second trial.

[37] Taking all of these factors into account, I am of the view that the interests of justice are best served by two separate trials. I therefore ordered severance of the charges against Ms. Omar and adjourned the charges against Mr. Arviko and Mr. Cumor to January 12, 2015.

MOLLOY J.

Released: November 28, 2014

[^1]: R. v. Omar, 2014 ONSC 3418
[^2]: R. v. Savoury (2005), 2005 25884 (ON CA); R. v. Agawa and Mallett (1976, 1975 482 (ON CA)); R v. Crawford, [1995] 1 S.C.R. 384 at para 30; R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384 at para 47; R. v. Suzack (2000), 2000 5630 (ON CA)
[^3]: R. v. Savoury, supra Note 2
[^4]: R. v. Last, 2009 SCC 34, [2009] 3 S.C.R. 146, at paras 16‑18