ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-168-00

DATE: 20141208

B E T W E E N:

HER MAJESTY THE QUEEN

Kelly Slate, for the Crown

Applicant (Similar Fact Evidence)

Respondent (Severance)

• and -

DANIEL ANTWI,
JABOUROU ABDULKADER
and NASSER ABDULKADER

Magda Wyszomierska, for Daniel Antwi
Talman W. Rodocker, for Jabourou Abdulkader

Douglas Usher, for Nasser Abdulkader

Respondents (Similar Fact Evidence)
Applicants (Severance)

HEARD: October 15, 17, 20, 24, 2014 at Brampton

RULING

Publication restricted pursuant to s. 645(5) and s. 648 of the Criminal Code.

F. DAWSON J.

[1] There is a 26 count indictment before the court charging various offences in relation to four bank robberies and the attempted robbery of an armoured truck. The charges include a number of firearms offences. The issues for determination on these pretrial motions are whether a severance of counts should be ordered and whether evidence in relation to some counts in the indictment should be admitted as similar fact evidence in relation to other counts in the indictment. In the circumstances of this case these are related issues.

[2] I am called upon to make these rulings as the case management judge who has been designated pursuant to s. 551.1 of the Criminal Code. Therefore, I may not be the judge presiding over the trial.

Overview of the Application

[3] There are some factual complexities. The four bank robberies occurred between September 12, 2011 and November 1, 2012. Only one robber was involved in the first bank robbery. Daniel Antwi is charged with a series of offences in relation to that robbery.

[4] Two robbers were involved in each of the following three bank robberies. However, only Antwi is charged in relation to the second and third robberies. Jabourou Abdulkader is charged together with Antwi in relation to the fourth bank robbery. I am advised that Jabourou Abdulkader was previously charged with the second and third robberies but was discharged at the preliminary inquiry on the basis that there was no evidence capable of identifying him as one of the robbers in the second and third robbery.

[5] Nasser Abdulkader is Jabourou’s brother. He is not charged in relation to any of the bank robberies but is jointly charged with his brother and Daniel Antwi with a series of offences in relation to the subsequent attempted robbery of an armoured truck. Those offences occurred in April 2013 and are the last offences chronologically.

[6] Daniel Antwi, who is charged in all counts, applies to have each of the bank robberies and the attempted robbery of the armoured truck dealt with in separate trials. That would require five trials.

[7] Jabourou Abdulkader seeks to have his and Antwi’s trial on the counts related to the fourth bank robbery severed from the counts related to the three previous bank robberies and from the counts related to the attempted robbery of the armoured truck. That would require at least three trials.

[8] Nasser Abdulkader seeks severance of the charges he faces in relation to the armoured truck from all of the bank robbery offences which he is not involved in, thus requiring at least two trials.

[9] The Crown is opposed to all requests for severance. Crown counsel supports that position, in part, with a submission that the evidence in relation to each of the bank robberies should be ruled admissible in relation to each of the other bank robberies as similar fact evidence on the issue of Daniel Antwi’s identity.

[10] Crown counsel further submits that if the jury concludes that Daniel Antwi and Jabourou Abdulkader are guilty of bank robbery, something the jury should be instructed to consider first, the evidence in relation to their involvement in one or more bank robberies meets the test for the admission of similar fact evidence to assist in proving motive and intent in relation to the attempted robbery of the armoured truck, which came later. This submission is tied to the fact that the accused were observed hiding in a garbage enclosure near the door to a bank at approximately 11:30 p.m. shortly before an armoured truck was scheduled to arrive at the bank. The police diverted the armoured car before it arrived.

[11] Crown counsel is anticipating that the accused may offer the explanation that they were hiding in the garbage enclosure in order to rob someone using the bank’s automated teller machine (ATM). Crown counsel submits that evidence of the accused’s involvement in one or more of the earlier bank robberies would be relevant to prove that their target was the armoured truck and not someone using the ATM.

[12] All counsel have agreed to rely on the evidence at the preliminary inquiry to help decide these applications.

The Applicable Legal Principles

Severance

[13] Section 591(1) of the Criminal Code provides that any number of counts for any number of offences may be charged in an indictment other than an indictment charging murder. Section 591(2) provides that the court may sever the counts or the accused charged in an indictment “where it is satisfied that the interests of justice so require”.

[14] In R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146 the court held, at para. 16:

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.

[15] The onus in a severance application is on the party seeking severance. Generally, there is a presumption that persons charged with acting in concert should be tried together: R. v. Suzack, 2000 5630 (ON CA), [2000] O.J. No. 100, 141 C.C.C. (3d) 449 (Ont. C.A.), at para. 87-88; R. v. Crawford, 1995 138 (SCC), [1995] 1 S.C.R. 858, [1995] S.C.J. No. 30, at para. 30. Severance should not be ordered unless a joint trial “will work an injustice on the accused”: Crawford, at para. 31; R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384, at paras. 10, 47-48.

[16] In Last, at para. 18, the Supreme Court of Canada set out a non-exhaustive list of relevant factors to consider on a severance application:

(1) the general prejudice to the accused [from a joint trial];
(2) the legal and factual nexus between the counts;
(3) the complexity of the evidence;
(4) whether the accused intends to testify on one count but not another;
(5) the possibility of inconsistent verdicts;
(6) the desire to avoid a multiplicity of proceedings;
(7) the use of similar fact evidence at trial;
(8) the length of the trial having regard to the evidence to be called;
(9) the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and
(10) the existence of antagonistic defences as between co-accused persons.

[17] Given the Crown’s submissions, item 7, the use of similar fact evidence at trial, is particularly significant in this case. As mentioned in Last at para. 33, a ruling allowing similar fact evidence will often favour a joint trial. However, I also take note of the court’s caution that because the onus is on the Crown in relation to the similar fact evidence application care must be taken when considering this factor on a severance application. Nonetheless, as Crown counsel and all defence counsel have fully addressed the admissibility of similar fact evidence on this motion and would like to have admissibility decided at this juncture, I propose to deal with that question of admissibility before I decide the severance application.

Similar Fact Evidence

[18] Similar fact evidence, also referred to as evidence of discreditable conduct, is presumptively inadmissible as evidence of bad character even where it is otherwise relevant to a material issue at trial. This rule applies whether the proffered evidence is extrinsic to the counts in the indictment or is based on a request that the trier of fact consider the evidence tendered on one count in the indictment in relation to another count. The evidence may gain admissibility exceptionally, however, if Crown counsel demonstrates on a balance of probabilities that the probative value of the evidence exceeds its prejudicial effect. There must be such a strong nexus between the proffered evidence and the issue to which the evidence is said to be relevant that coincidence is rendered improbable. See R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, 164 C.C.C. (3d) 481 and R. v. Arp, 1998 769 (SCC), [1983] 3 S.C.R. 339, 129 C.C.C. (3d) 321.

[19] While the probative force of similar fact evidence will be affected by the degree of similarity between the prior discreditable conduct and the offences charged, the extent to which probative value will rest on similarity will depend on the issue to which the evidence is said to be relevant: Handy, at paras., 48, 73, 76-80; R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, at para. 49.

[20] Where the issue is identity, a high degree of similarity is required between the proffered similar acts and the offence charged, although striking similarity or a signature characteristic is not required. A number of significant similarities in combination may be sufficient for admissibility. See Arp at paras. 43-45, Handy at para. 81 and MacCormack at para. 51.

[21] Where the issue is other than identity, such a high degree of similarity may not be required for admissibility but there must remain a strong nexus between the similar fact evidence and the issue in question such that the probative value of the evidence exceeds its prejudicial effect.

[22] The probative value of the similar fact evidence may rest on propensity reasoning provided it is not dependent on reasoning from bad character to proof of the issue in question. In addition, the trial judge must find from a consideration of all the circumstances that, judged objectively, an improbability of coincidence has been established before the evidence will have sufficient probative value to be admitted: Handy, at para. 76.

[23] The court must then go on to consider both moral and reasoning prejudice before considering the balance between probative value and prejudicial effect: Handy, at paras. 31, 42 and 100.

[24] In this case, the Crown tenders the similar fact evidence for a number of different purposes. As Rosenberg J.A. held in R. v. Fiona, 2008 ONCA 568, 233 C.C.C. (3d) 293, at para. 63, “[W]here the evidence is tendered for multiple purposes, the trial judge must decide which issues predominate in order to correctly weigh the probative value of the evidence against its prejudicial effect.

[25] I will refer to additional legal principles in considering whether the proposed similar fact evidence is admissible in relation to each of the issues to which it is said to be relevant.

(continues exactly as in the original judgment…)

Justice F. Dawson
Released: December 8, 2014