Court File and Parties

Court File No.: CRIM 1967/16 Date: 2017-05-12

Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent D. D’Iorio, for the Respondent

And: Robin Badwah, Applicant J. Mencil, for the Applicant

Heard: April 10, 2017, at Brampton

Ruling on Applicant’s Motion for Severance

André J.

[1] Mr. Robin Badwah brings an application, pursuant to section 591(3)(a) of the Criminal Code, for an order directing that he has three separate trials on the five separate counts of robbery he is charged with. His counsel submits that a single trial would be highly prejudicial to him because of the significant risk that the jury would engage in impermissible propensity reasoning.

Background Facts

[2] The Peel Regional Police Force (“PRPF”) initially charged Mr. Badwah with two counts of robbery; one which allegedly occurred on August 1, 2015 and the second on August 4, 2015. The first charge involved the robbery of a gas station while the second involved robbery of a taxi cab driver.

[3] The PRPF charged Mr. Badwah with two additional robberies involving taxi cab drivers, one which allegedly occurred on September 11, 2015 and the other on September 13, 2015.

[4] The PRPF swore a third information against Mr. Badwah related to an alleged robbery of a taxi cab driver on November 15, 2015.

[5] Mr. Badwah had a preliminary hearing on December 5 and 6, 2016 on all counts on the three informations sworn against him. He was committed to stand trial on all five robberies. Thereafter, the Crown consolidated all charges against Mr. Badwah on one indictment.

Position of the Applicant

[6] Mr. Badwah’s counsel submits that:

(1) There is a significant risk of both moral and reasoning prejudice to Mr. Badwah when evidence properly admissible on one count is heard with evidence on another count.

(2) The identity of the robber is a key issue with respect to all charges. The evidence relating to the identity of the alleged perpetrator is not equally strong on each count. Where the Crown’s identity evidence on one or two counts is weak, the cumulative effect of having all five incidents before the same jury could artificially bolster the Crown’s evidence for all counts.

(3) There is little factual nexus between counts 1, 5 and counts 2 - 4.

(4) There is no legal nexus in the five counts given that none of the transactions overlap. As a result, there is no risk of inconsistent verdicts if the court severs the charges.

(5) None of the charges involve complex evidence, a factor which mitigates in favour of severance.

(6) There is little or no possibility of inconsistent verdicts.

(7) It is possible that Mr. Badwah may choose to testify on some counts, but not on others. Forcing Mr. Badwah to have one trial would violate his rights to a free and fair trial.

(8) Given the absence of overlapping evidence there is a significant benefit to having three separate trials. Each of these trials will be shorter and more focused than one trial on all five counts. There would be no need for complex jury instructions involving limiting instructions regarding the limited use of some evidence.

(9) There is little similarity in the facts underlying the five counts save and except a general similarity in the facts between counts 2 to 4.

(10) There is little or no concern regarding the possible violation of Mr. Badwah’s s. 11(b) Charter rights if the charges are severed. In any event, the delay which may result on account of setting three trial days would have been caused by Mr. Badwah, rather than the Crown or by the institution.

Crown’s Position

[7] The Crown submits the following:

(1) The five incidents are connected in time, place and by the similar descriptions of the alleged robber. All the factors that must be considered to determine whether severance is appropriate weigh in favour of a joint trial rather than three separate trials. Any prejudice which may be suffered by Mr. Badwah in a joint trial can be addressed by a limiting instruction by the trial judge. Having three separate trials would result in a very inefficient use of judicial resources and would undermine the Crown’s ability to call all admissible evidence in its possession against Mr. Badwah.

Analysis

[8] Perhaps the only issue that the Crown and defence agree upon is that concerning the applicable statutory provisions in the Code and the main judicial authority on the issue of severance.

[9] Section 591(1) provides that subject to section 589, any number of counts for any number of offences may be joined in the same indictment.

[10] Section 591(3)(a) provides that where the court is satisfied that the interests of justice so require, the court may order that the accused or defendant be tried separately on one or more counts.

[11] The leading case on severance of counts is the Supreme Court of Canada’s decision in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146.

[12] The Supreme Court of Canada indicated in para. 1 that the Crown enjoys a wide discretion in deciding to include a number of counts in an indictment.

[13] An accused bears the burden of establishing, on a balance of probabilities, that the interests of justice, justifies an order for severance. In Last, the Supreme Court of Canada noted, at para. 16, that the “interests of justice” relates not only to an accused’s right to be tried based on admissible evidence but society’s interest in ensuring that justice is done in a reasonably efficient and cost-effective manner.

[14] In determining whether severance is appropriate in a particular case, a court should consider a number of factors including the following (Last, para. 18):

(a) the general prejudice to the accused; (b) the legal and factual nexus between the counts; (c) the complexity of the evidence; (d) whether the accused intends to testify on one count but not another; (e) the possibility of inconsistent verdicts; (f) the desire to avoid a multiplicity of proceedings; (g) the use of similar fact evidence; (h) the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and (i) the existence of antagonistic defences as between co-accused persons.

See also R. v. Carson, 2015 ONSC 3189 at para. 42; R. v. Blacklaws, 2013 SCC 8, [2013] 1 S.C.R. 403, rev’ing 2012 BCCA 217 for the dissenting reasons of Finch, C.J.B.C. at para. 30.

[15] Each of these factors will be examined in turn as they relate to the facts in this case.

General Prejudice to the Accused

[16] Mr. Badwah’s counsel submits that failure to sever would inexorably result in impermissible moral and reasoning prejudice against Mr. Badwah. The multiplicity of charges may foster an impression in the minds of the jury that Mr. Badwah is a bad person who has a propensity to commit robberies. Second, evidence relating to one count may be improperly applied to another.

[17] The Court of Appeal for British Columbia in Blacklaws makes short shrift of this argument in favour of severance. Finch C.J.B.C. noted in his dissenting opinion, at para. 62 (aff’d 2013 SCC 8) that the risk of propensity reasoning in cases of multiple count indictments “does not require that separate trial be ordered in every such case. Rather, judges may address the danger through an appropriate jury instruction”. Furthermore in R. v. Carson, above, at para. 44, Justice Hill noted that:

In some cases, with multiple counts and multiple complainants, where there is no trial ruling favouring complainant-to-complainant similar fact admissibility, careful jury instructions may be adequate to eliminate the dangers of cross-contamination influences across various transactions (citations omitted).

[18] If the Crown’s anticipated application for a similar fact ruling fails, the jury could be cautioned that:

(1) It must make a separate decision and give a separate verdict for each charge. (2) The verdicts may, but do not have to be the same on each count. (3) The jury must make its decision on each charge only on the basis of the evidence that relates to that charge, and the legal principles that apply to its decision on that charge. (4) The jury must not use evidence that relates only to one charge in making its decision on any other charge.

[19] For the above reasons, this factor favours a joint trial.

The Legal and Factual Nexus Between Counts

[20] The nexus between the five counts are as follows:

(1) All charges involve robbery; (2) The allegations all arose within a small radius of the main intersection; that of Main and Queen Street, in the City of Brampton. (3) All the incidents involve the robbery of a South Asian male, whether in a convenience store, as in count number one, or in a taxi cab, as in the remaining counts. (4) In all the incidents a black male made demands for money unaccompanied by any brandishing of a weapon or resort to gratuitous violence. (5) In each incident the robber is captured on surveillance video thereby permitting a visual review of his features which are captured on the surveillance video. In one robbery, which is the subject of count number three, fingerprint evidence lifted from a taxi cab where a robbery took place matched that of Mr. Badwah. (6) Cst. Murphy, a police investigator, closely examined the surveillance video from all five robberies and concluded that the alleged perpetrator in all five is one and the same. (7) The central issue in these robberies is the identity of the robber.

[21] Having three separate trials would eviscerate the Crown’s ability to call otherwise admissible evidence, on the issue of the identity of the alleged robber, against Mr. Badwah. In R. v. Mohamoud, 2013 ONSC 3337 a case involving robberies where identification was an issue on all but one count, the court held that the legal nexus between the counts was strong (at para. 16).

[22] Following the reasoning in Mohamoud, the similarities in each count and strong legal nexus regarding identity, in Mr. Badwah’s case, this factor favours having a joint trial.

The Complexity of the Evidence

[23] There is nothing complicated about the anticipated evidence. Neither the need for limiting instructions during and at the end of the trial, nor the need to caution the jury regarding the weight to be placed on the anticipated testimony of Cst. Murphy, favours severance.

Whether the Accused Intends to Testify on One Count but Not Another

[24] Mr. Badwah professes a desire to testify on one count but not on another. He provides no justification for his avowed intention to do so. It would be highly unlikely that he follows up on his declared intention given the anticipated testimony of Cst. Murphy’s and Mr. Badwah’s anticipated position that he was not involved in any of the robberies. In any event, the Supreme Court of Canada in Last cautioned at para. 26 that 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”.

[25] In my view, Mr. Badwah has failed to discharge this evidentiary burden. Accordingly, this factor weighs against severance.

The Possibility of Inconsistent Verdicts

[26] Both the Crown and the defence concede that this is not a factor in Mr. Badwah’s application.

The Need to Avoid a Multiplicity of Proceedings

[27] The anticipated testimony of Cst. Murphy applies to all five counts on the indictment. Similarly, it is anticipated that evidence concerning the clothing allegedly worn by Mr. Badwah with respect to counts 1, 3 and 4 will be called by the Crown.

[28] Having three separate trials on different dates would be antithetical to the efficient use of judicial resources in a jurisdiction that, historically, has been plagued by systemic delays in the prosecution of criminal cases. The need to empanel three separate juries and to embark upon the panoply of procedures necessary to ensure a fair trial, such as a challenge for cause, limiting instructions, voir dires, and the mobilization of electronic devices to show surveillance videos in three separate trials weighs heavily in favour of a joint trial.

The Use of Similar Fact Evidence

[29] In Blacklaws, Finch C.J.B.C. stated at paras. 42-44 that a trial judge “was not required to actually apply the test for admitting similar fact evidence during his deliberations on the severance application, he only had to assess whether a trial application for the admission of similar fact evidence “might succeed”. The suggestion therefore, that in this application, the Crown has failed to show that a “striking similarity” between the allegations underlying each count which constituted a “unique signature” misses the mark regarding the assessment of this factor in an application for severance.

[30] In my view, the common features in the surveillance evidence applying to all counts, including the facial features of the robber, his eyewear, distinctive clothing, belt, modus operandi, and with respect to count five, the distinctive clothing of his female companion, all cumulatively raise a strong possibility that an application for similar fact evidence “might succeed” in Mr. Badwah’s trial. This is a relevant consideration in deciding whether the counts on the indictment against Mr. Badwah should be severed: see Last, para. 33.

[31] In any event, the Crown is not required to show that the facts related to each alleged robbery are strikingly similar such that they display a unique trademark. Indeed, the Court of Appeal cautioned in R. v. MacCormack, 2009 ONCA 72, at para. 61, that a “number of significant similarities in combination may, by their cumulative effect, warrant admission”.

Potential Prejudice to the Accused Right to be Tried Within a Reasonable Time

[32] The Supreme Court of Canada in R. v. Jordan, [2016] 1 S.C.R. 631, 2016 SCC 27 has imposed an obligation on the courts, to ensure as best they can, that a trial in the Superior Court of Justice is dealt with within thirty months of an accused being charged with a criminal offence. There has been no trial date set in this matter. Both counsel suggest that the first trial will likely be scheduled to take place in 2018.

[33] If that is the case, these trials may well proceed in 2018 or even 2019. To that extent, there is a possibility that Mr. Badwah’s s. 11(b) Charter rights may be adversely impacted by the delay caused by the setting of three trial dates in this matter. Accordingly, a consideration of this factor favours the denial of the motion for severance.

Existence of Antagonistic Defences as Between Two Accused Persons

[34] This factor does not apply in this case.

Conclusion

[35] Based on my assessment of the relevant considerations, as set out in Last, the application is dismissed.

André J. Released: May 12, 2017