R. v. Robinson and Agostinho, 2015 ONSC 567

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Robinson and Agostinho, 2015 ONSC 567

COURT FILE NO.: CRIMJ(P) 806/13

DATE: 2015-01-26

B E T W E E N:

HER MAJESTY THE QUEEN

J. Goulin, for the Respondent

Respondent

• and -

HOPETON ROBINSON

Applicant

and

COLIN AGOSTINHO

C. Rippel for the Applicant, Hopeton Robinson

E. Ghebrai, Counsel for Colin Agostinho

HEARD: December 16, 2014

REASONS FOR RULING

Lemon, J.

ISSUE

1Mr. Robinson moves to sever two counts from a seven-count indictment. Mr. Agostinho’s counsel supports the application. The question is whether it would be in the interests of justice to do so.

2I am dealing with this matter as the case management judge and the parties agree that my ruling shall be binding on the trial judge.

3Mr. Robinson and Mr. Agostinho are charged that on October 31st, 2012, they used a handgun to rob two individuals. They are also charged that, on the same day, they unlawfully confined those two individuals. That makes up four of the charges on the indictment. The fifth count is that Mr. Agostinho is alleged to have been wearing a disguise while these events occurred. I will refer to these as the October charges.

4Mr. Agostinho is also charged that on May 7, 2013, seven months later, he possessed a loaded prohibited firearm and carried it in a concealed fashion. I will refer to these as the May charges. Mr. Robinson was not involved with these charges. He seeks an order directing that those two counts be tried separately from all of the offences relating to the October charges.

FACTS

5All counsel agreed that the Crown’s summary of the facts set out in its factum are a satisfactory background to these issues. There, the Crown states essentially as follows:

The October Charges

6On October 31, 2012, Jasmine Nguyen (18), Giao Nguyen (36) and Thanh Nguyen (59) were living at 54 Nasmith Street in the city of Brampton. They are daughter, mother and grandfather respectively.

7On October 31, Halloween, at approximately 8:45 p.m., Thanh opened the front door to whom he thought would be a ‘trick-or-treater’. A man dressed in an orange construction suit with a yellow hard hat (who the Crown will argue was Mr. Agostinho) entered and immediately produced a hand gun and began assaulting Thanh and demanding drugs and money.

8A second man wearing a hooded sweat shirt (who the Crown will argue was Mr. Robinson) entered the residence as Jasmine was coming downstairs to see what was happening. Mr. Agostinho then began assaulting Jasmine and demanding drugs and money from her.

9Giao heard what was going on while she was in an upstairs bedroom. She hid in the bathtub in the bathroom and called 911.

10Mr. Agostinho took Jasmine upstairs to search for money and drugs while Mr. Robinson, who was armed with a knife, unsuccessfully attempted to tie Thanh’s hands together but confined him to the downstairs bathroom.

11While upstairs with Jasmine, Mr. Agostinho assaulted her repeatedly by: punching her, kicking her, throwing her to the ground, stomping on her, pointing the gun at her head and hitting her in the head with a liquor bottle.

12Ultimately, Mr. Agostinho returned downstairs with Jasmine. He had her and Thanh sit on a couch while he looked for valuables. Mr. Agostinho and Mr. Robinson then observed that police cruisers had arrived; they fled the area through the back door of the residence.

13Much of the robbery and, in particular, the assaults by Mr. Agostinho on Jasmine, was captured on a residence surveillance video installed by the Nguyen family. This video was filed as an exhibit at the hearing.

14Mr. Robinson was arrested leaving the backyard of the residence directly behind 54 Nasmith at approximately 9:00 PM.

15A Raptors hat was located near where Mr. Robinson was arrested. It was sent for analysis and was found to have DNA attributable to Mr. Robinson.

16The Crown’s position is that when Mr. Agostinho attended at 54 Nasmith, he was wearing an orange construction jumpsuit and a yellow construction hat. An orange construction jumpsuit was found in a neighbouring back yard and a yellow hat was found in Jasmine’s bedroom. Both items were seized by police and were found to have DNA on them attributable to Mr. Agostinho.

17Mr. Robinson has indicated that he wishes to call evidence of another suspect with respect to this offence. It is anticipated that the other suspect will be Jesse Duka.

18Jasmine Nguyen told police that on October 31, 2012 her ex-boyfriend, Jesse Duka, was in attendance at her house prior to the robbery. Police investigated Mr. Duka in the area and found him to be in possession of a black starter’s pistol. Mr. Duka was not charged with the robbery.

The May Charges

19Mr. Agostinho was arrested on May 7, 2013. When police attempted to arrest him, he fled and a pursuit ensued. During the pursuit, Mr. Agostinho dropped a firearm, a .357 revolver loaded with 6 rounds.

20A warrant was subsequently executed on Mr. Agostinho’s home and, in his room, police located a bag that looks very similar to the one worn by the individual in the construction suit during the October 31, 2012 home invasion.

21The revolver that Mr. Agostinho was arrested with also “looks almost identical” to the one captured on the video surveillance from the Nguyen home.

LEGAL AUTHORITIES

22Section 591(3) of the Criminal Code of Canada, allows a court, “where it is satisfied that the interests of justice so require”, to order that counts of an indictment be tried separately.

23R v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, sets out the test to determine whether severance is in the interests of justice. There, Deschamps J. said:

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.

17Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed when deciding whether to sever 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 interests of justice often call for a joint trial. Litchfield, where the Crown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example. Severance can impair not only efficiency but the truth-seeking function of the trial.

18The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a particular case, avoiding an injustice. Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; 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 having regard to the evidence to be called; 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. [References removed]

POSITIONS OF THE PARTIES

24The defence submits that the weapon found in the possession of Mr. Agostinho in May was not the same weapon as used in the October charges. Therefore the evidence relating to the events of the May charges are irrelevant to the October charges. Further, that evidence is prejudicial to Mr. Robinson since he may be improperly associated with an individual alleged to be carrying a concealed handgun. The defence submits that no instruction from the trial judge could dispense with the obvious moral prejudice of the connection of the two individuals.

25It is the Crown’s position that the evidence that Mr. Agostinho was in possession of a gun that looked “almost the same” as the one used on October 31, 2012, six months later, is probative. The Crown submits that it will be up to the jury, on all of the evidence, to determine whether it was the same gun. It will be the Crown’s position at trial that it was the same gun and is evidence that a real firearm was used on October 31, 2012 rather than a starter’s pistol. The Crown submits that given that the gun was still in the possession of Mr. Agostinho six months later, it is evidence that the Crown is entitled to call in its case against Mr. Robinson since the October charges were a joint enterprise.

26The Crown submits that the admissible video evidence is potentially far more prejudicial to the accused than the handgun. That evidence will be played regardless of severance in the robbery trial for Mr. Robinson. Accordingly, the fact that Mr. Robinson’s co-accused was found with a firearm six months later cannot be said to be inflammatory or distracting in light of the allegations surrounding the home invasion robbery.

ANALYSIS

27In argument, the Crown agreed that if the weapons were not the same, the evidence of the May charges would not be relevant to the October charges. That would likely support a severance application. For example, if a long gun were used in the home invasion and a handgun were found in Mr. Agostinho’s possession six months later, there would be no connection between the two events. Similarly, the defence acknowledged that if the gun was the same in both events, the May events would be relevant and admissible; a severance application would not likely be successful.

28The defence therefore invites me to review Exhibits 1 and 2 filed on this application. Exhibit 1 was a series of photographs and stills taken from the home video surveillance and from other police investigation relating to both charges. Exhibit 2 was a DVD of the surveillance video. I was also provided with the gun that was seized although it was not made an exhibit. The defence submits that there are two weapons in consideration.

29The Crown submits that those same pieces of evidence show that the gun was the same. Further, the Crown submits that even if I am not persuaded that the weapon is the same, I should leave that determination to the jury.

30The defence focused on only two photographs in Exhibit 1. Those two photographs, in comparison with the actual handgun, suggest that they are very dissimilar weapons. However, in looking at all of the photographs in Exhibit 2 as well as the handgun itself, it seems to be quite similar if not the same. That will be for the jury to determine. The evidence of the gun that was seized from Mr. Agostinho in May 2013 will be relevant and admissible with respect to the other counts. Accordingly, there is a nexus in the evidence between the counts. It would not be in anyone’s interest to have two separate trials where the evidence is admissible in both.

31I agree with the Crown that the video evidence is potentially more inflammatory than the handgun. I have no doubt that the trial judge can deal with any moral prejudice that might occur from the video evidence.

32At this stage, I cannot determine what, if any, evidence will be called by the defence. That possibility does not inform this decision.

33Since the evidence relating to the May charges is relevant to the October charges, there is no basis for a severance.

34Accordingly, the application is dismissed.

Lemon, J.