Court File and Parties

COURT FILE NO.: CR-15-10000333-0000 DATE: 20160914 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN AND SHAKEIL WHEATLE

BEFORE: M.A. Code, J.

COUNSEL: Edward Royle, counsel for the Applicant Elizabeth Jackson, counsel for the Crown Respondent

HEARD: September 12, 2016

Endorsement

Ruling on Severance Motion

[1] The Applicant Shakeil Wheatle is charged with two separate murders in an Indictment that will be proceeding to trial by jury at the end of this week. He has brought a pre-trial Motion seeking severance of the two murder counts pursuant to s. 591(3) of the Criminal Code.

[2] The statutory “interests of justice” test for severance is broad and discretionary. However, the Supreme Court has helpfully summarized the body of case law that has applied and interpreted the remedy of severance in its recent judgment in R. v. Last (2009), 2009 SCC 45, 247 C.C.C. (3d) 449 at paras. 16-18 (S.C.C.) as follows:

The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in the interests of justice, as per s. 591(3) of the Code. 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.

Courts 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.

The 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 [citations omitted].

[3] In my view, severance of the two murder counts in the Indictment ought to be granted. Indeed, almost all of the relevant factors identified in Last argue in favour of severance. In that regard, the present case is similar to R. v. Jeanvenne (2010), 2010 ONCA 706, 261 C.C.C. (3d) 462 (Ont. C.A.), where the Court held that there should have been severance of two counts of murder in a joint trial. In that case, the only real link between the two murders was an investigative nexus, namely, the fact that the accused had made incriminating statements to undercover police officers in a “Mister Big” sting operation and the incriminating statements related to two separate murders. In the present case, the Applicant similarly made an incriminating statement to a civilian undercover agent and the statement related to two separate murders (as well as an earlier attempt murder that is charged in a separate Y.C.J.A. indictment).

[4] In my view, the most important considerations favouring severance in this case are the following:

• There is no factual nexus between the two murders, other than the alleged common perpetrator. They were not committed with the same firearm, with the same motive, with the same modus operandi, or in the same location;
• Given this lack of a factual nexus, the Crown does not submit that the evidence on one count is admissible in relation to the other count as similar fact evidence;
• The Crown’s case is considerably stronger in relation to one of the murders (the “Davis homicide”) than it is in relation to the other murder (the “Engelbrecht homicide”). The incriminating statement to the undercover agent is supported by a number of items of potentially independent corroborating evidence in relation to the “Davis homicide” but not in relation to the “Engelbrecht homicide.” This particular factor leads to a number of additional factors;
• As a result of the lack of any factual nexus, and the differing strengths of the two cases, there is no risk of inconsistent verdicts. A jury could rationally convict in one trial and acquit in the other severed trial;
• As a result of the lack of any factual nexus, there is little overlapping evidence. If severance is granted, the undercover agent would have to testify twice at two separate trials, but counsel for the Crown and defence both advise that the statement is amenable to editing. As a result, the agent will have to testify twice but it will not be the same evidence that he is giving or repeating at two separate trials;
• Given the differing strengths of the Crown’s evidence on the two counts, there is a real risk of prejudice due to the “impermissible inference that because the accused may have committed one murder … he or she is likely to have committed the other,” as Blair J.A. put it in R. v. Jeanvenne, supra at para. 34, speaking for the Court;
• The differing strengths of the Crown’s evidence on the two counts also gives rise to an objective basis for the Applicant potentially deciding to testify in relation to one murder but not the other. Mr. Royle has not yet committed to calling his client, and he does not rely heavily on this particular factor, but it remains a relevant consideration in my view.

[5] There are two factors that, to some degree, could weigh in favour of a single common trial. First, I was concerned as to whether Wheatle’s statement to the undercover agent was amenable to editing. If the various parts of the statement relating to the two separate murders could not be disentangled, without damaging the coherence of the statement, then that would cause harm to the “truth-seeking function of the trial,” which is a relevant factor on a severance Motion. See: R. v. Last, supra at para. 17. Accordingly, I deferred any Ruling on the severance Motion until the editing issue had been resolved and until I was satisfied that coherently edited statements could be presented by the Crown at two separate trials. See: R. v. Jeanvenne, supra at para. 40.

[6] The second factor that could weigh in favour of a joint trial is that, in the Crown’s submission, the defence may argue at trial that the Applicant Wheatle’s incriminating statements to the undercover agent were the product of boasting or braggadocio, and were based on rumour and/or hearsay circulating in the community. In the Crown’s submission, the corroborating evidence available in relation to the “Davis homicide” tends to negate this defence theory and thereby enhances the ability of the jury to properly assess the credibility and reliability of Wheatle’s statements to the undercover agent. I agree with the Crown that the corroborating evidence potentially has this effect, at least it certainly has this effect in relation to the “Davis homicide.” I also agree that it would not be impermissible propensity/bad character reasoning, if the jury concluded that the “Davis homicide” statement was truthful and was not the product of mere bragging, and also went on to infer that it was, therefore, less likely that the “Englebrecht homicide” statements were not the product of mere bragging based on hearsay and/or rumour. A careful jury instruction would be required to explain the permissible uses of this evidence – that is, the improbability of someone making one true confession to murder, which is based on fact, and one untrue confession to murder, which is merely bragging based on rumour and hearsay, both in the same statement – and the impermissible uses of this evidence – that is, the likelihood that if the accused committed one murder then he also committed the other, as a matter of character or disposition.

[7] Mr. Royle did not seriously challenge the above argument, concerning the permissible uses of the evidence as between the two counts. Rather, he made two submissions in reply, both of which are persuasive in my view. First, he submitted that the permissible line of reasoning advanced by the Crown does not carry a great deal of weight or probative value in relation to the “Engelbrecht homicide.” Its main value is in relation to the “Davis homicide.” It remains arguable that the confession to the “Davis homicide” was true, because it is corroborated, whereas the uncorroborated confession to the “Engelbrecht homicide” could still have been the product of mere boasting or braggadocio. The limited probative value of the “Davis homicide” corroborating evidence, in relation to the “Engelbrecht homicide,” remains outweighed by the significant prejudice outlined previously.

[8] Second, Mr. Royle submits that the “Engelbrecht homicide” has no legitimate probative value in relation to the “Davis homicide.” Accordingly, the jury instruction discussed previously would become very complicated, permitting some legitimate use of the “Davis homicide” evidence in relation to the “Engelbrecht homicide” but no such use of the “Engelbrecht homicide” evidence in relation to the “Davis homicide.” I have serious doubts about the effectiveness of such a complicated instruction. See: R. v. Last, supra at para. 46.

[9] For all these reasons, severance of the two murder counts is granted.

[10] I want to be clear that my Ruling in no way should bind the judge at a future trial of the “Engelbrecht homicide” from ruling that evidence related to the “Davis homicide,” and Wheatle’s statement to the undercover agent about the “Davis homicide,” are or are not admissible in the limited way that I have outlined above. That will be a decision for the judge presiding at the severed “Engelbrecht homicide.” In particular, it seems to me that the admissibility of the “Davis homicide” evidence, and the related statement about the “Davis homicide,” will depend to some degree on how the defence is conducted at the “Engelbrecht homicide” trial. If the accused advances a defence that relies on mere boasting or braggadocio, then the “Davis homicide” evidence and the related statement will likely become much more probative. Of course, the conduct of the defence at the severed “Engelbrecht homicide” trial is not something that can be determined at this stage. Accordingly, I leave that matter to any future trial judge presiding on the “Engelbrecht homicide.”

[11] In the result, the counts relating to the two separate homicides are severed.

M.A. Code J. Date: September 14, 2016