Court File and Parties

COURT FILE NO.: 1876/16 DATE: 20170202

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN J. Clark, for the Respondent Respondent

- and -

GREG GUTHRIE & DELON GRIFFITH L. Jorgennsen, P. Cooper for the Applicant, Greg Guthrie, R. Kulkarni for the Applicant, Delon Terry Griffiths Applicants

HEARD: December 12, 2016

REASONS FOR JUDGMENT

[Severance Application]

This Judgment is subject to a Non-Publication Order issued by the Honourable Mr. Justice Joseph Michael Fragomeni

Fragomeni, J.

[1] The Applicant, Greg Guthrie, seeks an order that he be tried separately on counts one and four from counts two and three of the indictment dated October 25, 2016, pursuant to Section 591(3)(a) of the Criminal Code of Canada.

The Indictment

[2] The indictment dated October 25, 2016 sets out the following four counts:

THE ACCUSED STAND CHARGED:

COUNT #1:

THAT Greg GUTHRIE, on or about the 6th day of March in the year 2014, at the City of MISSISSAUGA, in the Province of Ontario, did import into Canada a substance included in Schedule I of the Controlled Drugs and Substances Act to wit: Cocaine, contrary to Section 6(1) of the said Act.

COUNT #2:

AND FURTHER THAT Greg GUTHRIE and Delon GRIFFITH, on or about the 25th day of MAY in the year 2014, at the City of MISSISSAUGA, in the Province of Ontario, did import into Canada a substance included in Schedule I of the Controlled Drugs and Substances Act to wit: Cocaine, contrary to Section 6(1) of the said Act.

COUNT #3

AND FURTHER THAT Greg GUTHRIE and Delon GRIFFITH, between May 1, 2014 and May 25, 2014, at the City of MISSISSAUGA, and elsewhere in the Province of Ontario, and in the country of Trinidad and Tobago, did conspire together to commit an indictable offence, namely, importing into Canada a substance included in Schedule 1 of the Controlled Drugs and Substances Act, to wit: cocaine, contrary to section 6(1) of the said Act, thereby committing an offence contrary to section 465(1)(c) of the Criminal Code.

COUNT #4

AND FURTHER THAT Greg GUTHRIE, on or about the 27th day of OCTOBER in the year 2014, at the City of MISSISSAUGA, in the Province of Ontario, did import into Canada a substance included in Schedule I of the Controlled Drugs and Substances Act to wit: Cocaine, contrary to Section 6(1) of the said Act.

[3] In summary, Guthrie sets out the following grounds in support of his application:

1. Counts one and four of the indictment relate to allegations of fact that are separate and unrelated to counts two and three.
2. Guthrie, depending on the evidence adduced by the Crown at trial, intends to testify at his trial in relation to counts one and four, but without prejudice to his decision to testify or not in relation to counts two and three.
3. Guthrie would be prejudiced on counts two and three by the evidence to be adduced on counts one and four which is not admissible with respect to counts two and three and vice versa and,
4. It is in the interest of justice that counts one and four be tried separately from counts two and three.

Summary of the Facts Relating to Each Count

[4] The Crown acknowledges in his factum that Guthrie has set out the material facts in his factum as follows:

Count 1

[5] On Thursday March 6, 2014, Annecia Ann-Marie Morris and her four children, all Canadian citizens, arrived at Toronto Pearson International Airport (“TPIA”), Terminal 3 from Port of Spain, Trinidad (“POS”). During the offloading of the aircraft, Canadian Border Services Agency (“CBSA”) located eight suitcases belonging to the Morris family which were believed to contain drugs. CBSA located 40.7 kilograms of cocaine concealed in the false bottoms of the eight suitcases.

[6] Morris was arrested for importing cocaine and provided a statement to officers. Morris’ mother also spoke with officers and advised them that she was aware of an involved individual named “Bulldog”. When officers approached Morris with the name “Bulldog” she informed officers that she also knew “Bulldog”. She advised officers that Bulldog’s real name was Greg (no last name) and that he had orchestrated the importation. Morris did not provide a description of “Bulldog” to officers.

[7] The RCMP Identification Section analyzed all eight suitcases for fingerprints. Impressions found on two of the eight suitcases were identified as matching to a Greg Malcolm Guthrie, DOB: January 30, 1973, the Applicant.

[8] Officers obtained the travel history of the Applicant from CBSA. The travel history of a Greg McLaren Guthrie, DOB: January 30, 1973, confirmed by a later query to be the same individual as identified in the fingerprint analysis, had travelled from TPIA to POS on February 26, 2014 and returned to TPIA from POS on March 5, 2014.

[9] At the preliminary inquiry, Morris identified the Applicant, who was the only black individual in the courtroom at the time, as “Bulldog”.

Count 2 and Count 3

[10] On May 25, 2014, Jamie Gibb and Jennifer Lucchetti arrived at TPIA from POS. CBSA officers discovered approximately 20 kilograms of cocaine hidden in the false sides of their four suitcases.

[11] Upon arrest for importing cocaine, Gibb provided a statement advising that he had been recruited as a drug courier by “Demarco”. He said Demarco introduced him to a man named “Terri”, who introduced him to a man named “Big Mac”. Gibb stated that “Big Mac” was in POS and that he had taken the suitcases and returned them with drugs inside. He advised that “Terri” was supposed to pick up the bags upon return to Canada and provided a description of “Terri’s” vehicle.

[12] Gibb provided a physical description of “Terri” and “Big Mac”. “Big Mac” was described as African American with short hair and many tattoos on his arms, large, half a foot taller than Gibb himself, and easily in the 300 pound range.

[13] The Applicant’s travel history revealed that he had travelled from TPIA to POS on May 17, 2014 and returned to TPIA from POS on May 21, 2014.

[14] On May 27, 2014 RCMP officers begin a surveillance operation of the Applicant and Terry Griffith. As a result, the two were connected to the address of 27 Montebello Avenue. Through surveillance, officers uncovered circumstantial evidence connecting this address to the importation of drugs.

[15] Approximately one year after his arrest, on July 30, 2015, Gibb participated in a photo lineup and identified a photo of the Applicant as “Big Mac”.

[16] On October 22, 2015, Gibb participated in a further photo lineup where he identified a photograph of Delon Griffith as “Terri”.

Count 4

[17] On October 27, 2014, Pamela Elizabeth Grey and Anita Miller arrived at TPIA from Grenada. CBSA officers discovered 30 kilograms of cocaine hidden in false compartments in the sides of their six suitcases. Both were charged with importing cocaine.

[18] The six suitcases were analyzed for fingerprints by the RCMP Identification Section. Impressions found in three of the six suitcases were identified as matching to a Greg McLaren Guthrie, DOB: January 30, 1973, the Applicant.

[19] The Applicant’s travel records reveal that on October 16, 2014 he departed TPIA from POS and returned to TPIA from POS on October 23, 2014.

[20] At the time of the arrival of Grey and Miller at TPIA, the Applicant was under surveillance. Officers observed the Applicant take several trips from a Holiday Inn located at 600 Dixon Road, Toronto to TPIA Terminal 1 arrivals section in several different vehicles. The Applicant was observed speaking on a cell phone throughout. Eventually the Applicant was observed departing the airport alone and did not return. Officers observed counter-surveillance conducted by the Applicant. The Applicant was later observed heading to the east side of Toronto into the East Danforth/Old East York neighbourhood.

[21] Further investigation by the RCMP revealed that a suspected third courier, Nan Sovey, had arrived at TPIA from POS with Grey and Miller on October 27, 2016, but left her suitcases with Grey and cleared customs departing with her belongings in a backpack. Sovey, who lived in the East Danforth/Old East York neighbourhood, was later arrested and charged.

[22] On October 29, 2014, the Applicant was arrested at his residence. Pursuant to a CDSA search warrant, officers executed a search of the residence and located approximately $50,000 of bundled Canadian currency, two computers and multiple cell phones. Officers also seized two vehicles.

[23] The Crown adds the following additional fact to this review:

The courier from the second importation (Counts 2 and 3) James Gibb, identified Webster Richards as the person who put him in touch with Griffith. Richards was arrested in May 2014 and has proceeded separately from Guthrie and Griffiths. His trial is scheduled in the Ontario Court of Justice commencing March 27, 2017.

Governing Legal Principles

[24] Section 591(3) of the Criminal Code states that in order to grant severance, a court must be satisfied that the “interests of justice” require it.

[25] In R. v. Last, 2009 SCC 45, [2009] S.C.J. No. 45, the Supreme Court set out a non-exhaustive list of factors relevant to this issue at paragraph 18:

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: R. v. E. (L.) (1994), 94 C.C.C. (3d) 228 (Ont. C.A.), at p.238; R. v. Cross (1996), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419; R. v. Cuthbert (1996), 106 C.C.C. (3d) 28 (B.C.C.A.), at para. 9, aff’d R. v. C. (D.A.), [1997] 1 S.C.R. 8 (sub nom. R. v. C. (D.A.)).

[26] At paragraph 16 in Last the Court noted:

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.

[27] In Last the Court also dealt with the balancing of the factors and the effect of a limiting instruction as it relates to prejudice at paragraphs 43 to 47:

In his weighing of the interests of justice, the trial judge referred to a few factors: nexus, general prejudice to the accused, the possibility that the accused would testify on one set of counts but not the other, and multiplicity of proceedings. As mentioned earlier, he found the nexus weighed in favour of a joint trial when this factor should have been given very little weight. In addition he took the view that a limiting instruction would “avoid any meaningful possibility of prejudice” without assessing the benefits to the administration of justice. Finally, he observed that “[t]he purpose of joining counts, of course, is to avoid multiplicity, and it would be a rare thing for that criterion alone to tell in favour of severance” (A.R., at p. 80). This last statement, in my view, does not come close to the analysis of the benefits to the administration of justice mandated on a severance application.

It was incumbent upon the trial judge to consider and weigh cumulatively all the relevant factors to determine whether the interests of justice require severance. In this case, although Mr. Last was likely to testify on both incidents, the risk of prejudice to Mr. Last in having a joint trial was nevertheless significant because of the dangers of credibility cross‑pollination and prohibited propensity reasoning. In other circumstances, after balancing all relevant factors, the interests of justice may have nevertheless required a joint trial. However, in this case, there was an absence of compelling countervailing reasons for having a joint trial. This case did not pose a risk of inconsistent verdicts, nor did it involve substantial overlap in witness testimony or other evidence. As stated by the dissenting judge, “the nature of the nexus between the counts in this case did not provide a reason why it was necessary, desirable or convenient to try the cases together” (para. 130). Indeed, a joint trial in the circumstances of this case did not serve any truth‑seeking interest, and brought few if any benefits to the administration of justice.

While the Crown argued that it was open to the trial judge to decide that a proper jury instruction can overcome any potential prejudice to Mr. Last, I agree with the dissenting judge below that this should be done only where there are sufficient countervailing factors providing a rationale for a joint trial:

Here, the countervailing factors in favour of trying these two sets of charges together were negligible and the reasons to sever were compelling. As a result, this was not a case to attempt to address the risk of prejudice by a jury instruction. [para. 155]

Indeed, if a proper jury instruction were all that was needed to deal with potential prejudice to the accused, then prejudice would in a sense cease to be a relevant factor in the analysis. While a limiting instruction can limit the risk of inappropriate cross-pollination or propensity reasoning, courts should not resort to a limiting instruction unless there is a valid reason to do so. As with the accused’s intention to testify, the limiting instruction is but one factor in the balancing exercise.

As previously stated, all the factors must be considered and weighed cumulatively. Here, most of the factors militated in favour of separate trials. Consequently, the significant risk of prejudice to the accused clearly outweighed any benefits to the administration of justice in trying the counts together. Failing to conduct a proper balancing of the relevant factors, the trial judge made an unreasonable decision. I therefore conclude that the trial judge acted unjudicially and that intervention is warranted.

Onus

[28] The onus is on Guthrie to satisfy the court that severance is required in the interests of justice.

[29] In R. v. Savoury, [2005] O.J. No. 3112 (Ont.CA) the Court stated the following at paragraph 22:

A trial judge may order severance of the trial of a co-accused only if satisfied that “the interests of justice so require”: Criminal Code, s. 591(3). The interests of justice encompass those of the accused, the co-accused, and the community as represented by the prosecution. The trial judge must weigh these sometimes competing interests and will direct severance only if the accused seeking severance satisfies the trial judge that severance is required. To satisfy that burden, the accused must overcome the presumption that co-accused who are jointly charged and are said to have acted in concert, should be tried together. The policy behind this presumption was described by D.W. Elliot in his article “Cut Throat Tactics: The Freedom of an Accused to Prejudice a Co-Accused”, [1991] Crim. L. Rev. 5 at 17, and cited with approval by Sopinka J. in R. v. Crawford (1995), 96 C.C.C. (3d) 481 at 397:

[I]t 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. ….

Application of Principles to the Case at Bar

The Legal and Factual Nexus Among the Counts

[30] Guthrie submits that the three counts of importing take place over an eight month period and involve three separate incidents. They involved different quantities of drugs and different individuals as suspected drug mules.

[31] Those three separate importations raise different and distinct legal issues. Guthrie is charged alone on counts one and four. The main evidence on counts one and four is forensic evidence of a fingerprint connecting Guthrie to the suitcases where the cocaine is located. The Crown will also lead surveillance evidence relating to count four, providing circumstantial evidence connecting Guthrie to the alleged importation by Grey and Miller.

[32] With respect to Counts 2 and 3, the prosecution intends to lead the identification evidence through a witness who was also charged with importation. The Crown will also lead surveillance evidence connecting Guthrie to 27 Montebello Avenue.

[33] Guthrie argues that the fingerprint evidence on counts 1 and 4 is not relevant or admissible on counts 2 and 3. Further, the identification evidence on counts 2 and 3 is not relevant or admissible on counts 1 and 4.

[34] Guthrie also submits that the surveillance evidence on each count is irrelevant and inadmissible with respect to the other and permitting the jury to hear this inadmissible cross count evidence poses a serious risk of misusing the evidence to infer that Guthrie is more likely to have committed each of the counts.

[35] Guthrie submits that if the counts are severed and the Crown seeks to bring a Similar Fact Application, the onus would then shift to the Crown to demonstrate the probative value of that evidence outweighing its prejudicial effect.

Position of the Crown

[36] The Crown submits that there is a significant factual and legal nexus between the counts. All counts allege the same conduct. The same legal principles apply to each. All counts have civilian couriers who have been charged. All of the couriers will require the same cautions with respect to their testimony. All counts are likely to have expert testimony.

[37] The Crown’s theory is that over the eight month period of these three importations, it was an ongoing enterprise involving the same parties.

[38] The Crown acknowledges that he does not anticipate advancing a Similar Fact Application. However, the Crown does submit that it is reasonably probable that evidence from counts 1 and 4 may be admissible on counts 2 and 3 and vice versa. A severance would mean having to conduct the same trial twice. The Crown explains his position in this point at paragraphs 27 and 28 of his factum as follows:

First, as noted above, Gibb’s evidence may be admissible in a trial on counts #1 and #4 to rebut the anticipated defence that there was an innocent explanation for the presence of Guthrie’s fingerprints in the suitcases on two different cocaine shipments. Thus at a trial on counts #1 and #4 alone, the Crown may be required to call the central evidence from counts #2 and #3 in order to give the jury a balanced picture of the facts. If that occurred in severed trials, all the key evidence would have to be called twice.

Similarly, the fingerprint evidence, while not similar fact evidence, is arguably admissible on counts #2 and #3, as it is corroborative of Gibb’s evidence identifying Guthrie. Gibb’s credibility and reliability is central to counts #2 and #3, and will be hotly contested. Gibb has identified Guthrie as the person responsible for the cocaine in his bags. The fact that Guthrie’s fingerprints are present in two other drug shipments carried by people with no apparent connection to Gibb provides significant confirmation of Gibb’s evidence identifying Guthrie and Guthrie’s role. Assessed in light of the facts of the charge and the defences advance or reasonably anticipated, the evidence may significant probative value (sic), as it may advance or refute live issues in the trial. Given that Gibb’s credibility will be the key issue on counts #2 and #3, it would leave an unbalanced picture for the jury to suggest that Gibb’s evidence is utterly unbelievable without providing them with available confirmatory evidence. That being the case, the key evidence may have to be called twice if the counts are severed.

[39] The Crown submits that even if a Similar Fact Application across counts is not successful a joint trial on all counts is appropriate. The court would still be able to give the jury a clear and firm instruction to consider the evidence on each count separately. The Crown argues that by contrast, if severance is granted and the trials are heard separately and the evidence admitted across counts, all of the key evidence would have to be called twice.

Conclusion

[40] I am satisfied that there is a sufficient factual and legal nexus with respect to all counts such that it is reasonable and appropriate that they be heard together.

[41] The Crown’s theory that these importations were part of an ongoing enterprise, with Guthrie being the common thread throughout, is reasonable and supported by the evidentiary record. The Applicant’s position that these importations are separate and distinct because the drug mules are different and the quantities are different is not a reasonable one. All of the counts relate to the importation of cocaine. The quantities were 40.7 kilograms on Count 1, 20 kilograms on Count 2, and 30 kilograms on Count 3. The legal issues on these three importations are the same. The conspiracy count, Count 3, does attract different legal issues but the conspiracy relates to the importation count in Count 2.

[42] In the event that the Crown seeks a ruling with respect to count to count similar fact, that issue will be argued at the end of the trial and before my charge to the jury. A decision will then be made as to whether the jury can use evidence of similar acts or whether the jury will be instructed to deal with each count separately. The onus of course would be on the Crown to establish a count to count Similar Fact Application.

[43] I agree with the Crown that in the event that he does not seek a count to count similar fact ruling, or if he does and is unsuccessful, the court is able to instruct the jury that they are to consider the evidence on each count separately.

[44] The standard jury instruction sets out the following:

Single Accused Charged with Multiple Counts without Evidence of Similar Acts (General Instruction)

[1] The indictment on which you are trying (NOA) alleges that s/he committed (specify) offences. Each allegation is a separate charge. You must make a separate decision and give a separate verdict for each charge. Your verdicts may, but do not have to be the same on each charge.

[2] You must make your decision on each charge only on the basis of the evidence that relates to that charge, and the legal principles that I tell you apply to your decision on that charge. You must not use evidence that relates only to one charge in making your decision on any other charge.

[3] (NOA) is presumed innocent of each charge. You must consider each charge separately, and return a separate verdict for each charge based only on the evidence and the legal principles that apply to it. For each charge, your verdict will depend on your assessment of the evidence and your application of the legal principles that relate to that charge. Your verdict sheet shows the verdicts available on each charge. I will tell you about its use later in my instructions.

Multiple Accused and Counts Without Evidence of Similar Acts (General Instruction)

[1] In this case, (specify number) persons are charged with (specify number) offences. You must return a separate verdict for each person on each charge. Your verdicts may but do not have to be the same for each person and each charge.

[2] Although (specify number) persons are charged and are being tried together, each person charged is entitled to be treated separately on each charge. Each is presumed innocent of each charge. And each is entitled to have his or her case decided on the basis of evidence and legal principles that apply to him or her. It is that evidence and those principles that determine what your decision will be for each person on each charge.

[3] In reaching your separate verdict for each accused on each charge, unless I tell you otherwise, you must not use the evidence on any charge to reach your verdict on any other charge. And you must not use the evidence that applies to only one accused to decide the case of any other accused on the same charge or any other charge. The verdict sheet that you will have with you in your jury room lists the verdicts available for each accused on each charge. I will tell you how to use it later in these instructions.

Issue: Whether Accused Intends to Testify On One Count But Not Another

Position of Guthrie:

[45] Guthrie submits that there is a greater probability that he will testify on Counts 1 and 4 than Counts 2 and 3.

[46] On Counts 1 and 4 Guthrie may decide to testify and offer an innocent explanation for the prints found.

[47] However, with respect to Counts 2 and 3, the Crown’s case consists primarily of the witnesses of two individuals of unsavoury character who were arrested for importation of cocaine. In those circumstances it is very unlikely that the accused would testify.

This factor in the analysis ought to be given significant weight.

Position of the Crown

[48] The Crown concedes that Guthrie’s explanation for why he might wish to testify on Counts 1 and 4, but not on Counts 2 and 3 is a supportable one. However, on balance, this factor still does not weigh in favour of severance. The Crown points to two reasons for this assertion:

1. At paragraph 21 of his factum Griffith states:

   Gibb stated that the arrangements were completed with Guthrie, not Griffith, and that Guthrie met him in Port of Spain and made arrangements regarding the transfer of the luggage with they were in Port of Spain.

   The Crown argues, however, that Griffith is in the same position as Guthrie with respect to the Gibb importation. In addition to that Griffith has not stated any intention to testify.

[49] More importantly, if Guthrie did not testify on Counts 1 and 4 and provide an innocent explanation for the prints, in a severed trial the Crown would seek to call Gibb as a witness in rebuttal. In those circumstances Gibb would have to be called in both trials and the evidence relating to all of the importations would have to be called regardless.

Conclusion

[50] The Crown readily acknowledges that an accused’s desire to testify on some counts, but not others may, in some cases, attract significance to favour severance. On the facts of the case at bar, however, this factor is not significant and does not favour severance.

[51] I agree with the position of the Crown on this issue. In the event that Guthrie testified to provide an innocent explanation for the prints found, the Crown would have an argument to call Gibb in rebuttal had the counts been severed.

[52] When dealing with the intention to testify on some counts and not on others it is important to keep in mind the factual matrix in Last that resulted in the discussion of this factor.

[53] In Last the Court stated that in assessing the accused’s testimonial intention on a severance application the underlying concern is for the accused’s ability to control his defence and more specifically, his right to decide whether or not to testify with respect to each of the counts unimpaired by inappropriate constraints. (See para 25).

[54] At paragraphs 27 to 30 in Last the Court sets out the following:

While an accused’s provisional intention with respect to testifying is certainly a consideration which should be given significant weight, it is but one factor to be balanced with all the others. An accused’s stated and objectively justifiable intention to testify on some but not all counts is not necessarily determinative of a severance application. It can be counterbalanced by other circumstances that the judge finds may prevent the accused from testifying, or be outweighed by factors that demonstrate that the interests of justice require a joint trial.

During the severance hearing counsel for the defence explained to the trial judge, albeit briefly, that Mr. Last was more likely to testify in respect of the S.M. counts since the issue was whether the sexual intercourse was consensual or not, and was therefore highly dependent on S.M.’s word against Mr. Last’s. Defence counsel at trial did not further elaborate on Mr. Last’s position, other than to say that the M.A. counts were “dependent more heavily on other evidence”. However, the suggestion before the Court of Appeal and this Court was that Mr. Last was less likely to testify with respect to the M.A. counts since they involved an issue of identification.

While defence counsel could reasonably argue that the M.A. counts called for a distinct theory of the case from the S.M. counts, it is to be noted that the likelihood Mr. Last may feel strategically compelled to testify with respect to the M.A. counts as well as the S.M. counts could not be discounted. The Crown’s evidence implicating Mr. Last on the M.A. counts was not insignificant given Mr. Last’s admission that he was in her apartment just prior to the assault and M.A.’s identification of Mr. Last as her assailant. It was thus fairly probable he would have to testify in order to put forward his theory of the case — that it was someone else who entered M.A.’s apartment and committed the assault. Such a testimonial outcome was discernable at the time of the severance application.

I conclude that although Mr. Last’s intention to testify on one set of counts and not the other was objectively justifiable, it did not constitute, in this case, a significant factor in view of the likelihood that his decision whether or not to testify would be the same in relation to both sets of counts.

[55] Guthrie, in the case at bar, would still be able to control his defence. He could testify on Counts 1 and 4 and provide an innocent explanation for his prints. In addition to that and without testifying on Counts 2 and 3, he is still able to mount his defence on those counts by his attack and challenge to the identification testimony of Gibb. It is not a situation where he would be unable to make full answer and defence on those counts. Guthrie’s intention to testify only on Counts 1 and 4 is objectively justifiable but I am not satisfied that that factor is of sufficient strength to result in a severance.

Issue: The General Prejudice to Guthrie

Position of Guthrie

[56] Guthrie points to two sources of prejudice:

1. The potential for cross pollination on credibility assessments. There is a risk that the forensic evidence available on counts 1 and 4 may bolster the identification evidence on Counts 2 and 3 and vice versa.
2. If the Crown succeeds on Counts 1 and 2 in proving those changes beyond a reasonable doubt, the jury might infer that the Applicant was the kind of person who would commit Count 2 and 3 and convict him of those counts without a proper assessment of the evidence.

Position of the Crown

[57] The Crown submits that while he does not anticipate advancing a Similar Fact count to count application, it is possible that evidence from Counts 1 and 4 may be admissible on Counts 2 and 3 and vice versa. That determination cannot be made in advance and will depend on how the evidence is advanced at trial.

[58] A joint trial would not result in either moral or reasoning prejudice or both that points to severance.

[59] Moral prejudice refers to the risk of an unfocused trial and a conclusion of guilt based on a prohibited chain of reasoning from a general disposition or propensity to guilt of the offence charged. In other words, a finding of guilt based on character, not conduct. (R. v. Anjari, 2015 ONCA 575, [2015] O.J. No. 4355 (CA) at paragraph 107.)

[60] The Crown argues that where none of the facts underlying the other counts are more reprehensible than the other, the prejudice is much reduced. On this point the Crown points to the cases of R. v. B.(T.) (2009), 2009 ONCA 177, 95 O.R. (3d) 21 (CA) at paragraph 33 and R. v. MacMormack, 2009 ONCA 72, [2009] O.J. No. 302 (C.A.) at paragraph 68. It is important to note that both of those cases were judge alone trials where such reasoning relating to moral prejudice is significantly reduced. Having said that, the principle remains that each incident is of equivalent gravity and of minimal inflammatory potential.

[61] With respect to reasoning prejudice, Justice Watt set out the following at paragraph 69 in MacCormack:

In large measure, the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi-count indictment reduce significantly, if not to the vanishing point, the virus of reasoning prejudice. The judge is less likely than a jury to be distracted by a focus on similar acts. No additional time is required to adduce the evidence of similar acts because they are co-extensive with the evidence that is relevant, material and properly admissible on the individual counts. The only additional time required is that needed for the argument on admissibility at the end of the trial. The conduct relied upon as evidence of similar acts was not contested, although the appellant’s participation and the legal characterization of the crimes committed were controversial.

[62] The jury will be instructed, in the absence of a successful count to count similar fact ruling, to consider each charge separately and not use the evidence relating to one count as evidence on any other count.

[63] In R. v. Puddicombe, 2013 ONCA 506 Doherty, JA noted the following at paragraph 93:

Our system of trial by jury, however, presumes that juries can and do understand and apply instructions given to them by trial judges: see R. v. Emms, 2010 ONCA 817, 104 O.R. (3d) 201, aff’d, [2012] S.C.J. No. 74, at paras. 26-27. If those instructions can be plainly put, I do not think that one should assume that a jury cannot follow them simply because they may seem illogical to the jury.

[64] I am not satisfied that Guthrie has established that prejudice exists in the circumstances necessitating severance. It is clear from Justice Doherty’s comments in Puddicombe that juries can and do understand and follow the instructions given to them by trial judges.

[65] As I set out earlier in these reasons and depending on any rulings made regarding count to count admissibility the jury will be instructed that each count and each accused would be dealt with separately. Only the evidence applicable to a count or an accused could be used for that count or that accused.

[66] The jury would also be instructed, in those circumstances, that they cannot use the evidence of other counts to infer or find that he is the sort of person who would commit the offence they are considering. They would be told not to use evidence on the other counts for any purpose including inferring or finding that the accused has a disposition or propensity to commit the offence they are considering.

[67] I am satisfied in all of the circumstances, therefore, that Guthrie has not met his onus that the charges be severed.

Applicant Delon Griffith (Griffith)

[68] Griffith is only facing charges relating to the May 25, 2014 allegations. The Crown alleges that Guthrie is an overseer of the couriers in all three importations and that Griffith assisted Guthrie on the second importation on May 25, 2014.

[69] Griffith seeks an order that counts 2 and 3 ought to be severed from the indictment and a new trial date ordered on those counts.

[70] Griffith points to the following factors in support of his position:

1. The Crown’s evidence on Counts 1 and 4 is complex and extensive and there is a real danger that the jury may use that evidence against him on Counts 2 and 3.
2. There is a very limited nexus between Counts 1 and 4 and Counts 2 and 3.
3. The factual and temporal connections among the three importations is very tenuous
4. Griffith is waiving his s.11(b) rights for the period required to adjourn the trial of Counts 2 and 3.
5. Guthrie consents to Griffith’s application for severance of Counts 2 and 3 from Counts 1 and 4.

[71] Griffith submits that the anticipated evidence against him is very minor. The Crown’s case against him rests entirely on the evidence of Gibb. As such there is a real danger that the evidence on Counts 1 and 4 will contaminate the evidence with respect to Griffith on Counts 2 and 3.

Position of the Crown:

[72] The Crown essentially reiterates the arguments made on these issues as it related to Guthrie.

Conclusion

[73] I agree with the position of the Crown as it relates to Griffith. I will not again review he legal analysis set out in these reasons as it applied to Guthrie. Similar considerations lead to the same conclusion as with Guthrie. The Application is therefore, dismissed.

Conclusion:

[74] Without reiterating the legal principles and analysis set out in the Guthrie application, I am not satisfied that Griffith has met his onus that severance is necessary. A properly instructed jury will understand and be able to follow that they can only use evidence applicable to Griffith in assessing whether the Crown has proven the charges against him beyond a reasonable doubt. The Application is, therefore, dismissed.

Justice Joseph M. Fragomeni Released: February 2, 2017