Court File and Parties
COURT FILE NO.: CR-16-70000021-0000 DATE: 20170317
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Darrell Hogan, for the Crown Respondent
- and -
RICHARD SHERIDAN and CHAD NOUREDDINE Sam Scratch, for the Defendant/Applicant, Richard Sheridan Marco Sciarra for the Defendant/Applicant, Chad Noureddine Defendants/Applicants
HEARD: January 4, 2017, at Toronto, Ontario
Michael G. Quigley J.
Reasons for Ruling
Re: Severance
1Richard Sheridan and Chad Noureddine are charged with second-degree murder. The indictment charges both of them and alleges that they murdered André Pelliccione sometime between August 21 and 23, 2008 in the City of Toronto. Both accused now face a second trial for this alleged murder. Their first trial was held before Ewaschuck J. with a jury. It resulted in each of them being convicted of second-degree murder on November 27, 2010.
2However, both accused successfully appealed those convictions and they face a retrial that is scheduled to begin April 3, 2017 and is estimated to last six weeks. Importantly, the Court of Appeal’s principal focus in the decision which led to this retrial was not the issues now raised before me on this severance application but rather the trial judge’s improper use of a jury selection procedure.
3On the first trial, only Noureddine sought severance from Sheridan. Sheridan did not formally seek severance from Noureddine at that time, but he was permitted to effectively join that application and support Noureddine’s request. The trial judge denied that severance application, as explained further below.
4On this application, Sheridan and Noureddine both apply for severance from each other on this trial. In ruling on their reciprocal requests, I should note that I am not the presiding judge on this retrial. While this application would normally be heard by the presiding judge, counsel understood that I would not be the trial judge but have nevertheless agreed to be bound by this ruling.
General Summary
5The Crown alleges that the applicants were both members of a group of drug addicts who used "the Yard", a film trailer depot near the foot of the Don River, as their base of operations for small-time drug dealing. It is alleged that Sheridan was the leader of that group. One evening, Pelliccione, known to the occupants of the Yard as a man who had done penitentiary time for armed robbery, came to the gate of the Yard demanding entry. Sheridan refused him entry and a confrontation resulted. Pelliccione appears to have threatened Sheridan. What followed was a sustained beating of Pelliccione, first by Sheridan, together with his co-accused Noureddine, and B.S., an eventual Crown witness after he pleaded guilty to manslaughter. A short while later, Pelliccione was severely beaten a second time by Noureddine and J.D. (also a Crown witness), and finally he was beaten again a third time by J.D., Noureddine and M.S. (like B.S., a Crown witness after pleading guilty to manslaughter). The Crown maintains that Sheridan was also involved in this final beating during which time Pelliccione was killed, having been disabled by the earlier blows that he had sustained.
6The recitations of facts in the application records and factums of the applicants are lengthy. Without undertaking a detailed recitation of those facts, it will suffice to indicate that there are several specific facts that inform and underlie this application. The first was that Sheridan gave a detailed statement to police shortly after he was arrested on August 27, 2008. In addition to describing the events as they transpired, Sheridan made certain statements to the police that implicated Noureddine and that are claimed to be more prejudicial than probative. Moreover, in that statement Sheridan minimized his own control over or influence on Noureddine. That is important because Noureddine raised a duress defence at the first trial and evidently plans to raise the same defence on this retrial.
7At the first trial, the trial judge refused to grant severance, subject to the right of the accused to re-apply for severance later in the trial. Neither of the accused renewed their application for severance based on anything that occurred or any of the evidence heard at the first trial.
8The application for severance brought by Sheridan on this trial raises the same issue that Sheridan seeks to reargue from the last trial. That issue relates to the likelihood of Noureddine, and the then co-accused, M.S., calling evidence to support his defence of duress relative to Sheridan, and the potential prejudice that would cause to Sheridan.
9Noureddine’s application for severance is based upon the potential prejudicial effect that he claims would be caused to him by the statement given by Sheridan. Defence counsel claims that there was no physical or independent evidence upon which a jury could rely to determine what happened on the night the victim was killed, that the jury was completely dependent on the evidence of the accomplices, and that their stories varied wildly. As such, counsel for Noureddine contends that a jury would likely rely on Sheridan’s version of events as contained in his statement in order to try and determine the guilt of Noureddine, either consciously or unconsciously and notwithstanding instructions that would necessarily be given by the trial judge that they are not permitted to use that statement for that purpose.
10As on the first trial, counsel for Noureddine contends that Sheridan’s statement will be relied upon by the Crown to identify the consistencies within the varied accounts of the witnesses who do testify, all of whom are witnesses of unsavoury character within the meaning of R. v. Vetrovec, [1982] 1 S.C.R. 811. He claims that the use of Sheridan’s statement as confirmatory evidence of the accomplice witnesses is extremely prejudicial to Noureddine.
11In particular, it is claimed that Sheridan’s statement is hearsay that significantly implicates Noureddine, but which will be untested in cross-examination, that Sheridan himself would be a witness of unsavoury character if he testified against the applicant in respect of which serious cautions would have to be provided by the trial judge, and finally, that Sheridan’s version of events gives the Crown a response to Noureddine’s defence of duress, since Sheridan’s statement minimizes his threatening conduct towards Noureddine.
12Counsel for Noureddine claims that the prejudice that will be suffered by his client from a joint trial cannot properly be remedied by instructions to the jury. Even in the presence of a strong instruction from the trial judge limiting the use of Sheridan’s statement only as against Sheridan himself, and instructing the jury that it cannot under any circumstances be used to determine the guilt of Noureddine, counsel for Noureddine claims that the jury will be confused and further, that their ability to use that statement as confirmatory of the evidence of the accomplices, even if not of Noureddine’s involvement, will create extreme jury confusion.
13It is important to note that Sheridan’s statement was significantly edited during the course of the first trial so as to minimize the prejudicial aspects of his statement relative to his co-accused. That editing process resulted from a collaborative effort of Crown and defence counsel, and for those edits that could not be agreed on consent, based on rulings of the trial judge. Moreover, at the judicial pretrial held late in 2016, Crown counsel confirmed that he will not seek to introduce any further aspects of Sheridan’s statement, but will rely upon that statement as edited by Ewaschuk J. at the first trial.
14However, defence counsel claims that editing of the statement did not and does not achieve a proper balancing of fair trial rights. On this application, he goes further to say that the editing that was ordered by the trial judge at the first trial did not adequately preserve Noureddine’s fair trial rights. In addition to providing bad character evidence against Noureddine, he claims that the statement provides an untested explanation that minimizes Sheridan’s threatening conduct against Noureddine prior to ordering the killing of Pelliccione.
15The trial judge’s denial of Noureddine’s severance application at the first trial was a ground of appeal that was raised and argued by Noureddine in the Court of Appeal. Although the appeal was allowed on other grounds, the severance ground was one of the issues dealt with by the Court of Appeal in Justice Doherty’s ruling that “I would reject the other grounds of appeal”, further noting that “[c]ounsel raised several other grounds of appeal. The court did not require further submissions on most of them.”
16Similarly, the trial judge’s determination of the appropriate edits to Sheridan’s statement at the first trial was also a ground of appeal raised by Sheridan in the court of Appeal. The edits to the statement was one of the issues dealt with by the court of Appeal in Justice Doherty’s ruling noted in the last paragraph that the court did not require further submissions on that question. Essentially, both grounds of appeal were found by the Court of Appeal to be of insufficient merit to require anything more than a simple statement indicating that the court felt no need to hear submissions on either of those grounds.
Legal Principles
17Our law presumes that accused persons who are alleged to have acted in concert in the commission of an offence are to be tried together. Section 591(3) of the Criminal Code governs motions for severance and s. 591(3)(b) permits severance of co-accused where the court is satisfied that it is in the interests of justice to do so.
18As Justice Doherty noted in R. v. Savoury, 2005 ONCA 25884, at para. 22, the interests of justice “encompass those of the accused, the co-accused and the community as represented by the prosecution.” In determining whether the interests of justice require the severance of co-accused, the court must start from the general rule that individuals in joint criminal ventures are to be tried together. Separate trials in these circumstances will be the exception, not the rule, and severance will only be granted in exceptional cases “where a joint trial will work an injustice to the accused.” See R. v. Chow, [2005] 1 S.C.R. 384, at para. 10; R. v. Olah (1997), 33 O.R. (3d) 85 (C.A.), at paras. 36-52 (WL); R. v. Crawford, [1995] 1 S.C.R. 858, at para. 32. The burden is on the party seeking severance to establish on a balance of probabilities that severance from the co-accused is in the interests of justice.
19There is a uniform stream of authority in this country in favour of joint trials. Justice Sopinka, writing for the Court in R. v. Crawford, [1995] 1 S.C.R. 858, articulated the underlying policy reasons for this authority. Separate trials not only involve extra cost and delay but also create a risk of inconsistent verdicts. In addition, as Pardu J, now J.A., succinctly stated in R. v. Valentine, [2009] O.J. No. 5965 (S.C.):
The truth about the events is more likely to emerge if all are tried together, which is the preferable course, unless there is some prejudice which is so significant as to overcome the presumption.
20Policy dictates that the “respective rights of the co-accused must be resolved on the basis that the trial will be a joint trial.” The trial judge will only sever where the resolution of the respective rights of the co-accused results in an injustice to one of them. Further, Crawford establishes that a conflict between a co-accused’s Charter protected rights will not override the presumption against severing joint trials, but for exceptional cases. In this case, Crown counsel argues that the respective rights of Sheridan and Noureddine can be resolved in a joint trial without an injustice to either applicant. There are no exceptional circumstances present that would require the exercise of judicial discretion in favour of severance. It is claimed that the circumstances here militate against severance because it would impede the truth seeking process and result in the duplication of large amounts of evidence.
21In circumstances where severance is not granted, however, the case law recognizes that there may be need for carefully-crafted limiting instructions from the trial judge. Where such instructions can properly be prepared and will be understandable by the jury, there is no need to resort to the exceptional remedy of severance.
22In considering an application for severance, I am required to turn my mind to our long-standing confidence in the ability of juries to follow and apply difficult instructions. The Supreme Court of Canada has stated that the best way to balance rights and alleviate risks that the jury will misuse evidence is to ensure that jurors have all of the information they need along with a clear direction as to how they may use that information.
23The principal argument made by defence counsel in favour of severance in this case is founded in his contention that if this matter proceeds before a jury with both accused on a single trial, that there will be complex instructions relating to the defence of duress and that the jury will be unable or unwilling to follow the appropriate instructions of the trial judge about how particular anticipated pieces of evidence may be used, and how they may not be used. I find that is a position that must be rejected by this court.
24In R. v. Corbett, [1988] 1 S.C.R. 670, the Supreme Court of Canada emphasized that it is inappropriate and legally mistaken to start an analysis from a presumption that a jury is not going to obey the instructions of the trial judge relative to the probative value of any particular piece of evidence. Indeed, in Corbett, Dickson J., later C.J.C., emphasizes that I must start with the exact opposite presumption. At paras. 35 and 38 he states as follows:
Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. It is preferable to trust the good sense of the jury and to give the jury all relevant information, so long as it is accompanied by a clear instruction in law from the trial judge regarding the extent of its probative value.
In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law. We should regard with grave suspicion arguments which assert that depriving the jury of all relevant information is preferable to giving them everything, with a careful explanation as to any limitations on the use to which they may put that information.
Analysis
(i) Noureddine’s Application
25Noureddine rests his application for severance on three separate grounds: (i) prejudice to him arising from the admission of Sheridan’s statement, (ii) the potential of the jury to misuse that statement, and (iii) the impact of that statement on Noureddine’s duress defence.
Prejudice
26Noureddine contends that he will be unfairly prejudiced by the admission of Sheridan’s hearsay statement that is untested, given by a witness of unsavoury character, and that contains evidence relative to his own bad character. However, these complaints must be examined in the context of the legal requirement that the statement is not admissible against Noureddine, and that the jury will be clearly and strongly instructed to that effect.
27In Corbett, Dickson J. noted that on the trial of co-accused persons, the confession of one is admissible against that accused only, and that the jury must be instructed that such evidence cannot be taken into account in determining the guilt of the co-accused. The decisions in Olah and R. v. Suzack, 2000 ONCA 5630 establish that this is the preferable approach when balancing the rights of co-accused where one party has made a statement and the other has not. The general rule is that the evidence should be admitted subject to a limiting instruction as to its applicability to each of the two accused. Consequently, the appropriate way to address Noureddine’s concern about Sheridan’s statement is through the edits that have already been made to that statement to reduce its prejudicial effect to the greatest extent possible, See R. v. T.(W.P.) (1993), 14 O.R. (3d) 225, at para. 57, combined with a limiting instruction that makes it clear that the jury may only use that statement against Sheridan in determining his guilt, and may not consider it as against Noureddine in considering whether he is guilty as co-accused.
28Moreover, I agree with Crown counsel that the impact of Sheridan’s statement is in part negated by the fact that other civilian witnesses, formerly co-accused and all centrally involved in the events that transpired, will testify as part of this case for the prosecution. The independent evidence of those witnesses is largely corroborative of the evidence contained in Sheridan’s statement, particularly as it relates to the participation of the applicant Noureddine. As such, this is not a case where the only direct evidence relative to Noureddine’s involvement is the statement of his co-accused, Sheridan. Further, if this application were to be granted and a separate trial was held, the Crown would be entitled to call Sheridan and could potentially rely on his statements to the police as a witness against Noureddine. This would clearly be detrimental to the interests of Noureddine but that cannot occur where they are tried together. In that sense, it can be seen that a joint trial actually benefits Noureddine.
Jury Confusion
29The second claimed ground for severance is that the jury may be confused by the admissibility of Sheridan’s statement as corroboration of the evidence of other witnesses, while at the same time being inadmissible as directly implicating Noureddine. However, the law clearly remains that the statement of one co-accused, although inadmissible directly against another accused, is certainly admissible as corroborative evidence of other testimony of witnesses and evidence. In R. v. Rojas, [2008] 3 S.C.R. 111, the Supreme Court of Canada revisited its decision in R. v. Perciballi, [2002] 2 S.C.R. 761 and clarified the boundaries to which this reasoning can be extended. The court candidly observed that the intangible nature of credibility assessment makes it inevitable that a jury’s overall assessment of the credibility of the witness will be influenced by the totality of the evidence that they have heard, including evidence that may relate solely to the one co-accused. At paragraph 25, the court stated as follows:
In my respectful view, it is one thing for a jury to be expressly directed, as was done in Perciballi, to consider an out-of-court statement admissible only as against one accused in reaching its decision concerning the other. Such a direction would result in an impermissible use of the out-of-court statement. It is quite another matter, however, for the jury's assessment of the overall credibility of the witness to be influenced in some way by the totality of the evidence that they have heard, including evidence relating solely to one co-accused. The latter is inevitable, given the intangible nature of any credibility assessment.
30Further, this was a point specifically appealed and was specifically dismissed by the Court of Appeal in this case. I accept the proposition that it is a cornerstone of our jury system that members of a jury will understand and act on the instructions that are provided to them by the trial judge, no matter how difficult or confusing the instructions may be deemed to be. As Justice Doherty observed in Suzack, at para. 128, when confirming the parameters of the discretion I enjoy as the motions judge on this severance application, “[i]t would, however, be wrong for a trial judge to accept as a general proposition that a jury would not or could not abide by a limiting instruction.” I see no reason to depart from that presumption in this case. Indeed, in my view, to accept the submission of counsel for Noureddine would be to undermine the foundational premise of the jury system that jurors do adhere to the instructions of the trial judge, including limiting instructions that warn against impermissible uses of evidence.
Duress Defence
31Turning to the third ground, part of the reason alleged by counsel for Noureddine that the jury would be confused and unable to follow jury instructions arises out of changes in the law relative to duress in R. v. Aravena, 2015 ONCA 250, at paras. 25-27, that would be applicable on the second trial but that was not applicable on the first trial. He claims that would give rise to a different scenario being played out in front of the jury on the retrial than on the original trial. That difference would arise when comparing what would not be permitted to be advanced in evidence relative to duress at a second trial, as opposed to what Justice Ewaschuk ruled needed to be present before the defence could be put forward at the first trial. Those are allegedly new issues that relate only to Noureddine to which Sheridan does not need to answer. See also R. v. Ryan, [2013] 1 S.C.R. 14, at para. 81.
32The focus of the issue and defence of duress on the first trial was whether there was a safe avenue of escape, but the Court of Appeal concluded there was simply no evidence that would have established the defence to an air of reality standard. Aravena, moreover, has not altered the safe avenue of escape component of the defence of duress. While the change in law may affect the way in which the issues relating to the defence of duress are viewed, the fact is the same defence was planned to be advanced on the first trial. Issues relating to the character and the propensity of Sheridan were just as relevant on the first trial, subject only to Justice Ewaschuk’s narrowing of the issue of duress. But the defence did not call or lead any evidence of duress either through the accused, who did not testify, or other witnesses. Neither Sheridan nor Noureddine attacked one another, and neither of them testified. Neither did they raise the defence through cross-examination of other witnesses.
33Defence counsel claims it will be different on this trial, and that there is going to be significant evidence adduced which will confuse the jury. There are two problems with this submission. First, it calls for a severance based on an improper assumption about the jury’s abilities to follow the instructions of a trial judge. Second, it is based on evidence that is presently unknown, and that common sense indicates would have been adduced on the first trial if it indeed existed.
34I cannot presently know whether such evidence exists or whether it will be adduced, but to suggest that severance is required because of an unknown hypothetical that presumes jury confusion and an inability of the trial judge to give proper instructions is a paper tiger of no substance and not a foundation to accede to a severance request. I accept Crown counsel’s submission that there is simply no evidence before me, as the justice deciding this application, that any of that evidence exists that would have made their duress defence any better than it was at the first trial, or that would necessarily lead to jury confusion.
35More importantly, the fact remains that an assessment of this defence must be undertaken in the context of the fact that Sheridan’s statement is not admissible against the applicant, Noureddine, and that the jury will be directed as such and is presumed to be capable of following that direction. However, it actually gets even better for Noureddine than it has been put by his counsel, because the jury is not only instructed that they cannot consider Sheridan’s statement when assessing Noureddine’s defence. Assuming the evidence that Noureddine claims will be advanced rises to the level of an air of reality, it actually becomes the Crown’s burden to disprove the defence. So what the jury will actually be told in the trial judge’s instruction if this defence is raised is not only that the Crown cannot rely on any of the evidence from Sheridan’s statement in assessing Noureddine’s defence, but indeed that the burden of disproving the defence rests on the Crown without having the benefit of the contents of Sheridan’s statement.
36The essence of Noureddine’s claim is that severance is required because his defence will be more difficult to raise where the person he claims is the source of the duress is present before him and motivated to deny such a claim.
37Plainly, this is as much a factor weighing against severance, arguably even more so, than it is a factor in favour of severance. The best way for these things to get resolved is that all the parties are present, and that is one of the principles of opposing severance. It is the sensible idea that if you get everybody together and force them to be together, you have the best chance of having the truth come out. If Noureddine wants to claim that Sheridan coerced or forced or threatened him to commit a murder in a way that amounted to duress, he should have to do so in front of Sheridan and to his face, with Sheridan being present and in a position, through his counsel, to respond to those allegations through questions and knowledge that they have but that only Sheridan knows.
38As courts have found in the Crawford and Valentine decisions, the truth is most likely to come out where all parties having evidence to give are required to be together at one time and motivated to present that evidence. Having the applicant Sheridan present and motivated to give evidence to resist the applicant Noureddine’s defence is a clear means of ensuring that the truth-seeking function of the trial process is fulfilled. With appropriate protections in place, the truth of what happened is much more likely to come out at a joint trial, rather than at separate trials. This is one of the key factors that weighs against the severance of the applicant’s trial of this case.
Conclusion on Noureddine’s Application
39None of the grounds advanced by Noureddine, taken either individually or cumulatively, warrant severance in this case. The edits already made to Sheridan’s statement, along with a careful limiting instruction on the statement’s inadmissibility against Noureddine, sufficiently mitigate any prejudice to Noureddine. Moreover, jurors are presumed to be capable of following instructions, and therefore must be taken to understand that the statement, while admissible as corroborative evidence of other witnesses and evidence, is not admissible against Noureddine. Finally, the concerns raised regarding Noureddine’s defence of duress are entirely hypothetical and wholly insufficient to displace the presumption in our law that jurors will comply with instructions.
(ii) Sheridan’s Application
40Turning to the applicant Sheridan, his application for severance rests on two grounds: (i) prejudice to him arising from the edits made to his statement, and (ii) the potential for Noureddine to call prejudicial evidence in the course of advancing his duress defence.
Prejudice
41The first point can be dealt with quickly. Counsel for Sheridan characterizes the edits made to Mr. Sheridan’s statement as unfair, but that was a ground of appeal that was advanced and dismissed by the Court of Appeal. Further, the appeal did not relate just to the issue generally, but over the exact three areas of questioning edited by the trial judge, and all of those edits were in front of the appeal judges and specifically raised as grounds of appeal. That position was firmly and summarily rejected.
42The Court of Appeal’s rejection of that ground recognizes that the trial judge balanced the fairness to both applicants at the first trial by admitting portions of the statement where they had probative value and excluding others where the prejudicial effect of the statement upon either one of the two co-accused outweighed that probative value. It is noteworthy that the trial judge excised not only portions of the statement that were prejudicial to Sheridan, but also portions that were prejudicial to Noureddine. In this way, the trial judge preserved the rights of both applicants to a fair trial and overcame the need to grant severance in the case where other factors clearly and strongly favoured a joint trial. The same principles ought to apply now and be adopted relative to the second trial.
Defence of duress
43Finally, relative to Sheridan’s concern about the proposal by Noureddine to advance a duress and bad character evidence defence, Crawford, Suzack and R. v. Pollock, 2004 ONCA 16082 all show that a joint trial should be held even where the defence of one accused includes an attack on the character of a co-accused.
44A penultimate point that favours the trial of these two co-accused together is the obvious fact that severance will double the time and effort and resources required for these two accused to have their second trial. The case is scheduled for six weeks. The Crown expects to call between 12 and 15 witnesses. So it could reasonably be expected that if severed into two separate trials, the delays and demands on judicial resources would double with the need to conduct a second six-week trial at some point.
45If the trials of these two co-accused, both allegedly centrally involved in the same enterprise that resulted in the death of Pelliccione, were to be severed, simply because of the age of this case, other matters will be pushed out and unable to be heard because a second period of six weeks will be required for the second trial of the second of the two accused. This as well is an important consideration with respect to severance, particularly with the pressures facing our courts post- R. v. Jordan, [2016] 1 S.C.R. 631, even though I acknowledge it does not have the same force as the issue of fairness, but it is still an element to be considered in assessing severance and whether it is in the interests of justice that severance be granted.
Conclusion
46In summary, our law presumes that accused persons who are alleged to have acted in concert in the commission of an offence are to be tried together. Motions for severance are to be granted only where the court concludes that the applicants have satisfied the burden that rests on them to show that it is in the interests of justice that severance should be granted. In this case, the applicants have failed to satisfy me that it is in the interests of justice that severance should be granted. Severing these two co-accused would effectively prevent the jury from hearing all of the relevant information relative to the entirety of the events and actions involving both of them and their roles in the death of Pelliccione, since each of the co-accused would have separate trials, with entirely different dynamics that raises the prospect and risk of inconsistent verdicts. More importantly, in my view, severance would obstruct the very truth-seeking function that a joint trial of both Sheridan and Noureddine is designed to achieve.
47I accept that the trial of these two accused together will create issues, and present a challenge to the trial judge to craft strong and careful jury instructions to navigate through these issues. But it bears remembering that the entitlement of the accused is not to a perfect trial but to a fair and just trial. R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 193. Although it may not be a perfect solution to have these two co-accused tried together, with the appropriate edits to Sheridan’s statement as was done at the first trial, and with a judge who is alert to these issues and who gives mid-trial instructions and appropriate final instructions, a fair trial, even if not a hundred percent perfect trial, can be provided for both accused without severance and, therefore, the interests of justice do not require it. The applications are dismissed.
Michael G. Quigley J.