Court File and Parties

COURT FILE NO.: CR-16-10000187-0000 DATE: 20170116

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – TIMOTHY HEWTON Applicant

Counsel: Mareike Newhouse, for the Crown Magdalena Wyszomierska, for the Applicant

HEARD: December 1, 2016

RULING ON A SEVERANCE APPLICATION

B. P. O’Marra J.

OVERVIEW

[1] The applicant Hewton was one of three accused on a multi-count indictment. In counts 1-5 inclusive, he was jointly charged with Michael Campbell and Serena Timbury-Welcome with prostitution-related charges that allegedly occurred between March 1 and March 31, 2014. In counts 9-14 inclusive, he was jointly charged with Campbell with firearm-related charges that allegedly occurred between March 1 and April 16, 2014. The co-accused Campbell and Timbury-Welcome have disposed of their charges. Hewton now seeks an order for separate trials on counts 1-5 inclusive and counts 9-13 inclusive.

ANTICIPATED EVIDENCE AGAINST HEWTON

[2] I have integrated the summary of this anticipated evidence from the factums filed on this application as follows:

The prostitution-related charges:

1. It is alleged that on March 26, 2014, sixteen-year-old K.S. met with Campbell. She had met him once before at a hotel where they exchanged contact information. They maintained telephone contact. K.S. subsequently agreed to hang out in Toronto with him. Campbell came to Barrie to pick her up from a hotel. He arrived in a vehicle driven by Hewton. Two other males were also in the vehicle.
2. Upon arrival in Toronto, K.S. stayed at Campbell’s residence. K.S. began advertising her services and having sex with customers for money. Hewton drove Campbell and K.S. to various hotels over a period of days. It is alleged that she would give the proceeds to Campbell with Hewton present.
3. When K.S. first met Hewton and Campbell in Barrie, she saw a male sitting in the back of the car pass an item to Hewton that he then put under the seat.
4. K.S. only saw the item briefly. She described it as a gun, “a black hand thing.”
5. Hewton drove Campbell and K.S. to various locations in the GTA for prostitution activity. The three of them spent nights at Hewton’s residence. Campbell and Hewton collected the proceeds of prostitution services provided by K.S. Hewton checked the cellphone of K.S. at Campbell’s direction to check on her prostitution activities. He and Campbell were both angry and threating towards K.S. Hewton was present for serious threats made by Campbell to K.S. At some stage Hewton said he did not want to play a further role and had no further involvement with K.S.
6. Hewton is not charged with possessing or using a firearm or imitation thereof in the commission of any indictable offence or any similar type charges against K.S. An imitation firearm matching the general description of the item observed by K.S. was recovered from the residence of Campbell when a search warrant was executed on April 10, 2014.

The firearms-related charges:

7. The police released a brief statement to the media about the arrest of Hewton and his co-accused on April 10, 2014. As a result of this information a storage locker employee recognized the names of Campbell and Hewton from a locker rental contract and called the police.
8. On April 9, 2014, Hewton and Campbell had attended at the rental storage locker facility. Campbell filled out rental paperwork and paid for a locker with Hewton present. The two males were alone. The rental documents authorized Hewton’s access to the rented unit.
9. Shortly after renting the locker Campbell is seen on video entering the storage locker facility. He is driven by Hewton. Campbell exits the vehicle and is seen on video carrying a closed cardboard box into the storage locker facility. Hewton does not enter the storage locker. The locker is opened and then closed. Mr. Campbell leaves the facility without the closed cardboard box.
10. According to the storage rental electronic records, the locker was only accessed on that one occasion prior to it being opened by the police.
11. Upon execution of a search warrant on April 16, 2014, inside the locker the police located a single cardboard box. The contents of the box included an unloaded Tec 9 semi-automatic pistol and a box of ammunition. The model and serial number on the gun had been defaced.

POSITION OF THE PARTIES

[3] Hewton submits that his fair trial interests will be prejudiced if all of the counts are tried together. The prostitution-related charges will likely be decided based on credibility findings. The issue on the firearms charges is whether possession can be proven. Hewton intends to testify on the prostitution counts but not in regard to the firearm. His overarching concern is that there would be a significant likelihood of propensity reasoning if the counts are tried together.

[4] The respondent submits that there is a clear factual and legal nexus between the two sets of charges. The submission is that there is a “continuum of criminal activity” involving Hewton and Campbell. The respondent concedes that this kind of criminal association is evidence of bad character. However, it is relevant to issues at trial and the probative value exceeds its prejudicial effect. The respondent submits that a separate trial on severed counts would entail more court time and involve a vulnerable witness (K.S.) testifying twice. The respondent also submits that there is no objective component to Hewton’s intention to testify in regard to one set of counts and not the others.

THE LAW

[5] Applications for a severance are governed by s. 591 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The subsections that apply in this instance are as follows:

Joinder of counts

591 (1) Subject to section 589, any number of counts for any number of offences may be joined in the same indictment, but the counts shall be distinguished in the manner shown in Form 4.

Each count separate

(2) Where there is more than one count in an indictment, each count may be treated as a separate indictment.

Severance of accused and counts

(3) The court may, where it is satisfied that the interests of justice so require, order

(a) that the accused or defendant be tried separately on one or more of the counts.

[6] The Supreme Court of Canada set out the principles to be applied in R. v. Last, 2009 SCC 45 at paras. 16-18 inclusive:

[16] 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.

[17] 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.

[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 , [1997] 1 S.C.R. 8 (sub nom. R. v. C. (D.A.)).

[7] The Court in Last at paras. 25-27 inclusive also considered the significance of a stated intention of the applicant for severance to testify on certain counts and not on others:

1. 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.
2. The intention to testify should have both a subjective and an objective component.
3. While a formulaic expression of a subjective intention is not sufficient in and of itself to discharge the burden to have the counts severed, the trial judge should not substitute his or her own view for that of the accused and determine that the accused should testify or not.
4. The trial judge must simply satisfy him or herself that the circumstances objectively establish a rationale for testifying on some counts and not on others.
5. The burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention. The information could consist of the type of potential defences open to the accused or the nature of his anticipated testimony.
6. The accused is not bound by his stated intention. He remains free to control his defence, as the case unfolds, in a manner he deems appropriate.
7. A provisional intention to testify on certain counts is a consideration which should be given significant weight. However, it is but one factor to be balanced with all the others. It is not necessarily determinative of a severance application. It can be counter-balanced 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.

ANALYSIS

[8] The anticipated evidence of K.S. that she saw a handgun passed to Hewton in the car would be relevant to the fear instilled in her and the control exercised by Hewton and Campbell on the prostitution-related counts. The Crown does not allege and need not prove that the gun observed by K.S. was the same gun retrieved from the locker some two weeks later. Indeed the imitation firearm recovered from Campbell’s residence may be the item observed by K.S. In this specific scenario, absent a severance, there would be a clear danger of propensity reasoning notwithstanding a careful limiting instruction from the trial judge. It is far from clear that the probative value would exceed the prejudicial effect in any event.

[9] Hewton has indicated through counsel that he will likely testify on the prostitution-related counts. That will trigger a final instruction based on R. v. W.(D.), [1991] 1 S.C.R. 742. The Crown’s case to prove possession on the firearms counts is circumstantial. That is not to say that it is a weak case. However, in a case where knowledge and control of an item is to be proven without actual physical possession, it is objectively reasonable to assume that an accused may not testify.

[10] A separate trial on the firearms counts would not likely require extensive further court time. If the search and seizure survives a Charter challenge, the case would involve the evidence of the employee who observed the suspects, the video and any documents linking them to the locker. The evidence of K.S. may not even be required on those counts.

RESULT

[11] In light of all the circumstances, I am satisfied that the interests of justice require that there be separate trials for the two sets of charges. The Crown will decide which set of counts will proceed first. Counsel had stipulated at the outset of this application that I could rule on this matter even though I may not be the presiding judge at trial.

B. P. O’Marra J.

**Released:** January 16, 2017