CITATION: R. v. Plate, 2016 ONSC 1642
COURT FILE NO.: CR-705-15
DATE: 2016-03-07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Dirk Plate and Paul Caron Defendants
Philip Zylberberg and G. Black, for the Crown
Ralph Steinberg, for the defendant Dirk Plate Paul Caron, defendant, self-represented
HEARD: February 23, 2016
DECISION ON APPLICATION TO SEVER
HENNESSY, J.
Introduction
[1] Dirk Plate and Paul Caron are jointly charged and scheduled to stand trial on charges of fraud and theft. The indictment alleges that Dirk Plate, Paul Caron and two others planned and developed a scheme to defraud Atlas Copco. The scheme involved kickbacks for insurance benefits purchased by Atlas Copco using fake and inflated invoices. Dirk Plate allegedly received kickbacks through Paul Caron and his company. The alleged loss arising from the scheme is approximately $20 million.
[2] Dirk Plate seeks an order that he be tried separately from Paul Caron.
[3] The trial is scheduled for ten weeks beginning on April 11, 2016, before a jury. Paul Caron is self-represented. He takes no position on this application.
[4] Where there is more than one accused, the court may grant separate trials where it is satisfied that the interests of justice so require. (s. 591(3) Criminal Code of Canada).
[5] The sole issue on this application is whether it is in the interests of justice for Dirk Plate to be tried separately from Paul Caron. The test calls for an exercise in discretion by the judge hearing the application. As case management judge, I have authority pursuant to s. 551.3(1)g(vi) to hear the application.
Presumption in Favour of a Joint Trial
[6] There is a strong presumption in favour of a single trial of all accused persons who are alleged to have been involved in a common criminal enterprise. (R. v. Sarrazin (2005), 2005 CanLII 11388 (ON CA), 195 C.C.C. (3d) 257 (Ont. C.A.) at para. 59) The onus is on the applicant to convince the court on a balance of probabilities that notwithstanding this general rule, in the specific circumstances of this case, the interests of justice require separate trials for each of Dirk Plate and Paul Caron.
Interests of Justice Test: The Relevant Factors
[7] To determine the interests of justice, the court must balance the accused’s right to a fair trial with society’s interests in seeing justice done in a reasonably efficient and cost-effective manner that advances the search for truth. (R. v. Last, 2009 SCC 45)
[8] The following factors may be taken into account as part of this balancing exercise:
• general prejudice to the accused;
• the legal and factual nexus between the accused persons;
• seriousness of the offences;
• the complexity of the evidence;
• whether each accused intends to testify;
• the possibility of inconsistent verdicts;
• judicial economy: the desire to avoid a multiplicity of proceedings and the length of the trial
• the potential prejudice to the accused with respect to delay; and
• the existence of antagonistic defences as between co-accused persons.
R. v. Last, 2009 SCC 45, at para.18 and R. v. Jeanvenne (2010), 2010 ONCA 706, 261 C.C.C. (3d) 462 (Ont. C.A.), at para.34.
The Prosecution Case
[9] Before discussing the arguments on the factors relevant to the interests of justice test, it would be useful to provide a brief overview of the Crown’s case. This will provide some context for the arguments.
[10] The Crown alleges:
a. that four individuals were involved in a scheme whereby inflated and or false invoices were paid to a company owned by Paul Caron, an insurance broker;
b. that the other three individuals involved were senior employees of Atlas Copco who had authority to pay the invoices and to approve other expenses;
c. that Dirk Plate was the General Manager of Atlas Copco and was part of the planning of the scheme and with the others, a recipient of kickbacks in the form of unauthorized payments and annuities;
d. that Mr. Hillier, the Business Controller at Atlas Copco admitted his role in the fraudulent kickback scheme; and
e. that Leo Caron, the Director of HR, admitted his part in the scheme as part of a plea to similar charges. He was sentenced to 54 months of incarceration.
[11] The prosecution argues that their theory that there was a common criminal enterprise calls into play the three step approach set out in R. v. Carter 1982 CanLII 35 (SCC), [1982] 1 S.C.R.938 at p.5. They further submit that the Carter rule and approach strongly favour a joint trial of Dirk Plate and Paul Caron.
[12] Essentially the Carter Rule sets out how to apply the evidence against parties involved in a common criminal enterprise. The approach is based on the agency principles in criminal law. A finding of the existence of a common criminal enterprise and the membership of the accused in the common criminal enterprise makes each party an agent for the other. As agents for the other members of the common criminal enterprise, each member is responsible for the acts and declarations of the other members in furtherance of the objects of that enterprise. I set out below the three stages of the Carter rule analysis:
a. The court must first be satisfied beyond reasonable doubt on all of the evidence that the common criminal enterprise existed;
b. The court looks next at the evidence directly receivable against each accused to determine whether he is probably a member of the common criminal enterprise; and
c. If that conclusion is reached, the acts and declarations of the other members of the common criminal enterprise in furtherance of the objects of that enterprise can be applied against the accused in determining beyond reasonable doubt whether he is a member of the common criminal enterprise and hence guilty of the offense charged.
[13] This approach is employed at the end of all of the evidence before the court can apply the evidence against the accused. In this case, if the trier of fact arrives at step three of the Carter test, the trier is at liberty to apply all of the acts and declarations of all of the members of the common criminal enterprise in furtherance of the common criminal enterprise to determine whether the Crown has proven the accused’s guild beyond reasonable doubt.
[14] In support of their position on the first step of the Carter test, the Crown will call evidence with respect to all aspects of the alleged common criminal enterprise, including evidence which may not be strictly admissible against a particular accused. The Crown argues that this evidence will be called whether Dirk Plate is tried alone or jointly. It is possible that the Crown will fail at this stage which would result in acquittals of both accused persons.
[15] Should the Crown convince the trier of fact at the first stage, the trier of fact will consider the evidence directly admissible against each accused person to determine probable membership in the common criminal enterprise. At the third stage of assessment of the evidence, the trier may consider the acts and declarations of all of the members in furtherance of its objects. Again, at this stage, in either a joint or severed trial, the jury may consider evidence that is not strictly admissible against Dirk Plate alone.
Getting out the whole story in one Proceeding
[16] The truth seeking function of the trial is a prime consideration in all severance applications. A number of the factors listed above can be considered in light of whether they enhance or jeopardize the truth seeking function of the trial. The Crown argues that the best way to enhance the truth seeking function of the trial is to put the entire story before the trier of fact:
a. The Crown asserts that Paul Caron could raise a number of possible defences which would necessarily implicate Dirk Plate. For example, Paul Caron could posit that he was authorized to invoice as he did, or that the numbers in the various ledgers and accounts have an innocent explanation. In that scenario, the payments to Dirk Plate would not be linked to a common criminal enterprise but would presumably be independent, discrete acts of malfeasance. If there were separate trials, Dirk Plate would only respond to these allegations before a different trier of fact.
b. The only way to ensure that the full narrative is before the court, it is argued, is with a single trial where all parties must put their cards on the table at the same time. Any finger pointing from one defendant to another would be answered in one trial. As well, the stories of the other two witnesses who have made admissions (Mr. Hillier and Mr. Leo Caron) would be subject to cross- examination from both accused persons and that single version would apply to both accused. These witnesses will face significant challenges to their credibility and reliability. The cross-examinations on behalf of Dirk Plate and Paul Caron will potentially focus on different themes or have different strategies.
c. The Crown submits that task of assessing the credibility and reliability of the Mr. Hillier and Mr. Leo Caron is best done once by a single trier of fact, listening to all of the evidence. The Crown raises the issue that there is a significant risk that different triers of fact hearing evidence from these witnesses, who are cross- examined by different parties at different times, could result in different assessments of reliability and credibility
[17] The Crown argues that separate trials risk the possibility of inconsistent findings along the reasoning path to a verdict. For example, it is possible that different triers of fact will come to different conclusions on stage one of the Carter test. The Crown submits that either inconsistent findings or inconsistent verdicts have the same adverse impact on the truth seeking function of the trial. In the event of an inconsistent finding at one stage of the reasoning, one trial would end in an acquittal and one would end in a conviction. However, in the case of a jury trial, the basis of the ultimate verdict would be unknown.
[18] Dirk Plate asserts that it is highly unlikely, near impossible, to conceive of inconsistent verdicts. In support of this position, he states that it is unimaginable that either defendant will raise an antagonistic or cut throat defence, i.e., pointing the finger at the other.
[19] I agree that this risk of unanswered finger pointing and different assessments of reliability and credibility is real and could jeopardize the truth seeking function of the trial. The jury would benefit from having all of the evidence including both cross-examinations in the same proceeding. The truth seeking function of the trial would be enhanced by having all of the evidence including both cross-examinations, coming from different points of view, unfold before a single trier of fact.
Complications of Jury Charge
[20] It was argued, and I agree, that the jury instructions in a case where the issue is the existence of and membership in a common criminal enterprise is complicated and fraught with difficulties. It is common sense that the judge is best assisted in this task at the pre-charge meetings with input on behalf of both defendants. In particular, in a case where one defendant is self-represented, the trial judge will have the benefit of whatever assistance counsel for Dirk Plate contributes to the instruction drafting.
Risk of Impermissible Reasoning
[21] Dirk Plate argues that the truth seeking function of the trial will be compromised if he is tried jointly with Paul Caron. He submits that the evidence against Paul Caron is much stronger than the evidence against him and that this differential in the strength of the prosecution case will lead to moral and reasoning prejudice.
[22] Dirk Plate argues that he is alleged to have improperly authorized payments to himself in the amounts of $1.4 million and $300 thousand. These figures amount to approximately 6% of the total alleged fraud on Atlas Copco. Paul Caron is alleged to have received over $20 million from the scheme. To prove their case that this was a fraud of over $20 million, the Crown will produce a number of volumes of documents. Dirk Plate argues that none of these documents implicate him in the kickback scheme but that nonetheless he will be tarnished with the guilt by association. He contends that the risk of moral prejudice, which would defeat the truth seeking function of the trial, demands separate proceedings. (R. v. Welsh, OCA 2013 at para. 182).
[23] Dirk Plate further argues that the sheer volume of the case against Paul Caron is so strong and unbalanced that the jury will inevitably incorrectly apply evidence to Dirk Plate that would otherwise be excluded. This would result in reasoning prejudice and obviously impair the truth seeking function of the proceeding.
[24] The Crown submits that the documents are relevant to both defendants since they will lead at stage one of the Carter test, i.e., to prove the existence of a common criminal enterprise. This issue is necessary to prove that the payments to Dirk Plate are part of a scheme, not separate discreet acts. In other words, the Crown contends that the volumes of evidence with respect to the alleged overbilling, is part of the case against Dirk Plate as well as Paul Caron.
[25] From my understanding of the case at this point, I agree that the voluminous evidence of Paul Caron’s dealings will form part of the stage one analysis on the question common to both defendants.
Case against Dirk Plate
[26] The Crown contends that the difference between the cases can be dealt with by the judge in jury instructions on stages two and three of the Carter analysis. Further, they submit that in their view, the evidence against Dirk Plate is not as weak as it has been portrayed in the applicant’s argument. From an overview of the evidence presented at this motion, the Crown has a number of sources of evidence against Dirk Plate. To be sure, there is a significant difference in the amount of the alleged fraud as between the two defendants. Whether this factor can tip the scales on the balance to favour severance is the question.
[27] The exercise of balancing the weight of this difference in the amounts of alleged fraud must include an assessment of whether the difference would work an injustice against Dirk Plate. While there are examples where a confession by one defendant implicates another, we do not have that circumstance here. This is more a case of intertwined narratives, where the threads of one narrative are woven into the other. I am of the view that the difference in the amount of the alleged frauds and what that entails in terms of proof does not on its own outweigh the benefits of judicial economy to be achieved by a joint trial.
The risk of a mistrial
[28] The applicant submits that there is a heightened risk of a mistrial in a trial before a jury where one party is self-represented and the issues include an allegation of common enterprise. He contends that this risk neutralizes the judicial economy argument made by the Crown in support of a joint trial. I am of the view that the risk of a mistrial in these circumstances always exists, whether the trial is joint with another defendant or not. The parties, counsel, the trial judge and I as the case management judge have been alive to this issue for some time. I agree that the risk of a mistrial increases where one of the defendants is self-represented.
[29] However, a number of steps have been taken to minimize this risk including: the appointment of a case management judge, close case management, which has addressed issues and concerns and questions of the self-represented litigant and the provision of materials to Paul Caron on trial procedure and elements of the offense. In addition, I take into account the experience over the last year of Paul Caron’s participation in the case management process. He has made thoughtful contributions to the process and has demonstrated respect and deference to the court and to counsel. I find that Paul Caron has also been alive to the issue of mistrial risk and has expressed an intention to seek advice as necessary to ensure that his participation does not cause unintentional mischief.
[30] I am not satisfied that the risk of a mistrial weighs in favour of a severance.
The interests of justice: a Balance between Judicial Economy, the Truth Seeking Function of the Trial and Fairness to the defendant
[31] In the final analysis, there are strong reasons for a joint trial where two persons are accused of a common criminal enterprise. In this case, I am persuaded that the most likely way to achieve judicial economy and satisfy the truth seeking function of a trial is with a single trial. I come to this conclusion based on my view that the best way for a trier of fact to assess the reliability and credibility of the witnesses is to have their evidentiary accounts subjected to cross-examination by all parties in one proceeding. There is a strong legal and factual nexus between the cases against each of the defendants. A single proceeding will eliminate the risk of different assessments by different triers of fact and will use significant court resources more efficiently.
[32] We also have the risk of delay if there is severance. The ten week jury trial is scheduled to proceed against both defendants in early April 2016. This is a very significant allocation of resources for this region. There is no guarantee that two separate trials would each be much shorter. The second trial would have to be adjourned for many months. Delay has its own risks. It has now been three and a half years since the arrest in October 2012.
[33] I cannot accept the applicant’s argument that a joint trial would be unfair to him. He has not demonstrated that it is in the interests of justice to sever the trials of the two defendants. I am further persuaded that the risks identified by Paul Plate have been minimized or addressed; the increased risk of mistrial, the risk of impermissible reasoning and the difference in the seriousness of the cases against the two defendants.
[34] I am not satisfied that Dirk Plate, the applicant, has shown that there is a real likelihood of mis-justice if the two defendants are tried together.
[35] The interests of justice do not require separate trials for Dirk Plate and Paul Caron. The application is dismissed.
The Honourable Madame Justice Patricia C. Hennessy
Released: March 7, 2016
CITATION: R. v. Plate, 2016 ONSC 1642
COURT FILE NO.: CR-705-15
DATE: 2016-03-07
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Dirk Plate and Paul Caron Defendants
DECISION ON APPLICATION TO SEVER
Hennessy, J.
Released: March 7, 2016