R. v. Ross, 2015 ONSC 1156

COURT FILE NO.: CR13900006110000

DATE: 20150223

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Calvin William Ross and Ramsey Majid

BEFORE: Justice Spies

COUNSEL: M. Nassar, for the Crown

S. Scratch, for Calvin William Ross

M. Salama, for Ramsey Majid

HEARD: December 1-3, 2014

RULING ON APPLICATION BY Calvin ROSS FOR SEVERANCE

[1] The defendants Calvin Ross and Ramsey Majid are jointly charged with unlawfully being in possession of a number of Schedule I controlled substances for the purpose of trafficking; heroin, cocaine, ketamine, MDMA and methamphetamine as well as possession of proceeds of crime following a seizure by police of drugs and cash in a hotel room on June 28, 2012. It is alleged that Mr. Majid was renting the room and that Mr. Ross was seen entering the room. The defendants reelected trial by judge alone and pleaded not guilty to all charges.

[2] At the outset of the trial the defendants brought an application alleging breach of their sections 8 and 9 Charter rights. In addition, the Crown sought to introduce a videotaped statement and an oral statement made by Mr. Majid and taken by Officer Russett. Mr. Majid asserts that the statements were not voluntary and that his section 10(b) Charter rights were breached. The applications were to be heard by a voir dire blended with the trial.

[3] There was a delay in beginning to hear evidence because of various health issues with witnesses and counsel. When the matter finally appeared ready to proceed on December 3rd, Ms. Salama advised that she had just determined that she could no longer represent Mr. Majid because of a conflict of interest. She had been unaware of this conflict and learned of it quite inadvertently. Although Ms. Salama had found another counsel to take over the matter for Mr. Majid, obviously that counsel was not available to carry on without an adjournment of the trial. Although various alternatives were explored it eventually became apparent that there was no alternative but to adjourn the trial.

[4] As a result, Mr. Scratch advised that he wished to bring an application for severance because the adjournment would result in unreasonable delay for the hearing of this matter from the perspective of his client Mr. Ross. Mr. Scratch advised that because of his schedule, he would not be available to deal with the matter again until April 2015. He argued no particular prejudice to Mr. Ross save for the general prejudice to Mr. Ross as a result of what would clearly be a lengthy delay in trying this matter.

[5] Counsel made submissions with respect to Mr. Ross’ severance application. Ms. Salama did not ask that the application be deferred until Mr. Majid’s new counsel was retained nor did she suggest that Mr. Majid’s interests would be prejudiced either way. After considering the matter I dismissed the application with brief oral reasons. I advised counsel that I would provide further written reasons in due course. These are those reasons.

[6] Section 591(3) of the Criminal Code confers authority to order severance where the court “is satisfied that the interests of justice so require”. As Doherty J.A. stated in R. v. Savoury, 2005 25884 (ON CA), [2005] O.J. No. 3112 (C.A.), there is a presumption which the accused seeking severance must overcome that “co-accused who are jointly charged and are said to have acted in concert, should be tried together.” (at para. 22)

[7] In R. v. Crawford, 1995 138 (SCC), [1995] 1 S.C.R. 858, the Court, at paras. 30 and 31, set out the reasons for this presumption:

There exist, however, 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, a situation which is graphically labelled a “cut-throat defence”. Separate trials in these situations create a risk of inconsistent verdicts. The policy against separate trials is summarized by Elliott, supra, at p. 17, as follows:

There is a dilemma here which can only be avoided by separate trials. But separate trials will not be countenanced because, quite apart from the extra cost and delay involved, it is undeniable that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion. If each alleged participant is tried separately, there are obvious and severe difficulties in arranging for this to happen without granting one of them immunity. In view of this, in all but exceptional cases, joint trial will be resorted to, despite the double bind inevitably involved.

Although the trial judge has a discretion to order separate trials, that discretion must be exercised on the basis of principles of law which include the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused. The mere fact that a co-accused is waging a “cut-throat” defence is not in itself sufficient.

[8] In R. v. Last, 2009 SCC 15, [2009] S.C.J. No. 15, the Supreme Court of Canada set out the factors to be weighed when determining whether to sever or not. The main exercise is meant to ensure that a reasonable balance is struck between the risk of prejudice to an accused person and the public interest in a single, joint trial (at para. 17). The Supreme Court in that case stated: “It is important to recall that the interests of justice often call for a joint trial” and that “[severance] can impair not only trial efficiencies but the truth-seeking function of the trial”. (at para. 17)

[9] The factors set out at para. 18 of Last include the general prejudice to the accused, the legal and factual nexus between the counts, the complexity of the evidence, the possibility of inconsistent verdicts, the desire to avoid a multiplicity of proceedings, the length of the trial, the potential prejudice to the accused with respect to the right to be tried within a reasonable time and the existence of antagonistic defences as between co-accused persons.

[10] Mr. Scratch referred me to the decision of Nordheimer J. in R. v. Topol, [2007] O.J. No. 3094 (S.C.J.) where in the course of considering an application to stay a proceeding against Mr. Topol because of an alleged breach of section 11(b) of the Charter, Nordheimer J. stated, at para. 51:

The Crown correctly points out that there are strong and sound reasons for having people, who are alleged to have jointly participated in a criminal offence, tried together for that offence. Among other reasons, it saves court time, it reduces the expense to the public, it avoids multiple appearances by witnesses and it avoids the possibility of inconsistent verdicts. Those valid reasons cannot, however, override an accused person’s constitutional right to a speedy trial. The balance between the two has been long recognized.

[11] As Mr. Scratch submitted, the Court of Appeal at 2008 ONCA 113, [2008] O.J. No. 535, at para. 13 saw no difficulty with the approach of Justice Nordheimer in finding that as the time period lengthened the Crown had to decide between ceasing its practice of accommodating counsels’ schedules or proceeding with the appellant separately from those other accused. That decision is clearly distinguishable since the defendant had been arrested and charged in October 2002 and his trial date was set for October 2007, a delay of five years.

[12] Based on the indictment, this matter was first heard in this Court in September 2013 and on October 23, 2013, the first trial date for was set for June 23, 2014. On that date the trial was adjourned to December 1, 2014. I do not know why the trial was adjourned. At this stage the delay in starting this trial is just under two and one half years from when the defendants were charged. I have no information as to what has transpired in that timeframe in order to determine whether any of the delay is attributable to any party. Since there are no transcripts, no submissions were made in this regard. Neither defendant is in custody nor was it argued that Mr. Ross is subject to restrictive bail conditions. The trial was scheduled to take five to seven days. The Crown has three witnesses; police officers, who would have to testify twice if severance is granted.

[13] Ms. Nasser argued that if severance were granted that there would be a danger of inconsistent verdicts and that severance would seriously impair the truth-seeking function of the court. She submitted that since the live issue for trial is possession; knowledge and control, if there were separate trials one of the accused could testify at the trial of his co-accused and say that the drugs belonged to him. This could result in the other defendant being acquitted; presumably Mr. Majid in this case if severance were granted.

[14] Mr. Scratch advised that Mr. Ross was not formally admitting possession but submitted that if the Charter motion failed and the evidence is admissible he would not dispute possession since the drugs were found in the room in plain view. He also submitted that if Mr. Ross’ trial went ahead, he anticipated that he would testify on the voir dire and as such there would be a record of his evidence. If he were to testify differently at the trial of Mr. Majid, he could be cross-examined and the inconsistency would at least go to his credibility. Such cross-examination would not infringe his section 13 Charter rights; see R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311. There was, however, no guarantee of any of this and, as Ms. Nasser submitted, there is no admission of possession by Mr. Majid. It is her position that the evidence points to both defendants and to joint possession.

[15] At this stage although I understand Mr. Scratch’s argument that inconsistent verdicts is unlikely given the circumstances of this case, since the only issue after the Charter motions is possession, certainly it is not inconceivable that if severance were granted that each defendant might successfully point the finger at the other, claiming no knowledge of the fact that what was in plain view was in fact an illegal drug. In fact Mr. Scratch fairly acknowledged that there were public interest reasons for a joint trial.

[16] From what I do know of the case from reviewing the material for the voir dire, since the defendants are alleged to have been in joint possession of the drugs that were seized, to the extent I can determine them now, most of the factors identified in Last in identifying the public interest for a joint trial apply. The only separate factual and legal issue appears to be the statement voir dire with respect to Mr. Majid.

[17] In balancing these factors against the general prejudice to Mr. Ross resulting from the further delay in the trial, I concluded that the application for severance ought to be dismissed. This of course does not prevent Mr. Ross from asserting a breach of section 11(b) of the Charter if he wishes to do so when this case ultimately comes to trial.

[18] Although counsel asked that I remain seized of the trial, as I had not yet heard evidence, in consultation with the Trial Office, I determined that the best course was to declare a mistrial, which I did. Although I appreciated that there would be a lengthy delay before the matter could be rescheduled, I concluded that this way, my schedule and my possible commitment to another trial, would at least not cause any further delay. Accordingly the trial was rescheduled for June 8, 2015 and I advised counsel that if I were free to start a trial on that date I would request that this matter return before me.

SPIES J.

Date: February 23, 2015