Court File and Parties
COURT FILE NO.: CR12-2335-01/02 DATE: 2017-05-24 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Respondent
– and –
Joe Ramono Applicant
Counsel: Lisa Wannamaker, for the Crown Glen Orr, Q.C., for the applicant
Heard: March 20, 2017
Bale J.:
Reasons for Decision
[1] Abigail MacNaughton was killed as a result of a head-on collision with a pick-up truck. Joe Ramono, and William Towns, are charged with criminal negligence causing her death. The allegation against Ramono is that he issued a safety certificate for the pick-up truck either without inspecting it, or notwithstanding existing mechanical defects, and that those defects were a significant contributing cause of the accident. The allegation against Towns is that he operated the pick-up truck, with knowledge of the mechanical defects, and did so in a dangerous manner. Each of the accused is also charged with offences relating to forged documents used for the purpose of licensing the vehicle.
[2] Ramono now moves for an order that his trial be severed from Towns’ trial. A trial judge may order a severance of the trial of a co-accused “where it is satisfied that the interests of justice so require”: Criminal Code, s. 591(3). The interests of justice include those of the accused, and the co-accused, and society’s interest in seeing that justice is done, in a reasonably efficient and cost-effective manner: R. v. Last, 2009 SCC 45, at para. 16. In the present case, Towns did not take the position that he would be prejudiced by either a severance order, or a joint trial, and accordingly, the competing interests to be taken into account are those of Ramono, and the community, as represented by the Crown.
[3] In support of his motion for severance, Ramono argues the following grounds:
- that he and Towns are not charged jointly in any single count on the indictment;
- that there is no evidence that they were acting in concert or pursuant to a common design;
- that the alleged criminal conduct of each was different from the alleged criminal conduct of the other;
- that the alleged criminal conduct of each occurred approximately one month apart; and
- that Ramono’s right to make full answer and defence would be prejudiced if his counsel is unable to examine Towns for the purpose of eliciting evidence that he had been drinking alcohol on the day of the accident, and had a history of drinking and driving.
[4] With respect to the first ground argued by Ramono, the fact that the two accused are not charged jointly in any single count is not material. It is simply a matter of drafting convenience.
[5] With respect to the second, third and fourth grounds argued, Ramono relies upon R. v. Agawa and Mallet (1976), 11 O.R. (2d) 176 (Ont. C.A.), and submits that “prima facie, where it is not alleged that the accused acted in concert, they should be tried separately.” However, this statement of the required nexus between the acts of jointly charged accused is overly restrictive. Courts have variously described the nexus as “acted in concert”, “joint enterprise”, and “inextricably intertwined”. In R. v. Crawford, R. v. Creighton, [1995] 1 S.C.R. 858, at para. 30, the court describes the nexus to be “accused persons charged with offences arising out of the same event, or series of events”.
[6] In the present case, the offences with which Ramono and Towns are alleged to have committed arose out of the same series of events: Ramono certified the pick-up truck either without inspecting it, or notwithstanding that it had mechanical defects; the forged certificate was used to obtain a licence for the vehicle; Towns operated the truck in a dangerous manner, with knowledge of the mechanical defects; and the ensuing collision resulted in the death of Abigail MacNaughton. The unifying factor is the death of Ms MacNaughton which the Crown alleges was caused by the conduct of both accused, and the evidence against both will be relevant to a determination of the guilt or innocence of each of them.
[7] With respect to the final ground argued, an accused’s desire to call his co-accused as a witness for his defence may provide the basis for a successful severance application. However, the mere assertion of a desire to call a co-accused does not make severance automatic: R. v. Savoury (2005), 200 C.C.C. (3d) 94 (Ont. C.A.), at para. 27. The factors to be considered by the trial judge are whether there is a reasonable possibility that the co-accused, if made compellable by severance, would testify, and whether if the co-accused did testify, there is a reasonable possibility that his evidence would affect the verdict in a manner favourable to the accused seeking severance: Savoury at para. 28. In the present case, Ramono has failed to persuade me, on a balance of probabilities, that this test has been met.
[8] In Agawa and Mallet, Agawa applied for a severance on the ground that Mallet would be a competent and compellable witness on his behalf on a separate trial, but would not be compellable at the instance of Agawa on their joint trial. In upholding the decision of the trial judge to refuse the application for severance, the Court of Appeal noted that there was nothing in the record to indicate what evidence, if any, Mallet would have given upon behalf of Agawa, other than an inference from a statement alleged to have been made by Mallet to a police constable. That statement was patently unbelievable, and Mallet had stated that he would deny having made the statement. In these circumstances, the court held that the inference was no more than a mere possibility, and that there was little likelihood that evidence of assistance to Agawa would be obtained from Mallet at a separate trial.
[9] In Savoury, the co-accused Shaw had consistently stated that Savoury was not the person in the back seat of the car who had robbed and shot the deceased. In support of a motion for severance, his counsel argued that Shaw had direct exculpatory evidence, and that Savoury could make full answer and defence, only if he could compel Shaw to give that evidence. The trial judge refused a severance based upon her assessment of Shaw’s reliability and credibility, having never heard him testify. In reversing the decision of the trial judge, the Court of Appeal held that she had erred in principle by going beyond the limited inquiry into Shaw’s reliability and credibility contemplated on a severance application, and that Savoury’s inability to call Shaw as a witness prejudiced his right to make full answer and defence. In doing so, the court noted that the evidence sought to be elicited from Shaw bore little or no relevance to the defence advanced by Shaw, and that there was good reason to believe that Shaw would testify if compelled to do so.
[10] In the present case, Ramono says that he would like to examine Towns in relation to “drinking alcohol on the day of the accident, before the accident, and also other evidence of drinking and driving”. However, there is no indication of what evidence Towns might give, and therefore no grounds to support a reasonable possibility that his evidence could affect the verdict in a manner favourable to Ramono. I also note that Ramono’s counsel quite fairly stated in argument that he could not undertake to call Towns, if Ramono were granted a separate trial, and Ramono would, in any event, remain free to control his defence, as the case unfolds, in a manner he deems appropriate: Last, at para. 26. In my view, there is little likelihood that evidence of assistance to Ramono could be obtained from Towns at a separate trial.
[11] The policy reasons for accused persons charged with offences arising from the same event or series of events to be tried jointly apply with equal or greater force where an accused blames the other or others, a situation which is labelled a “cut-throat defence”: Crawford at para. 30. In the present case, unlike in Savoury, there is a cutthroat element to Ramono’s defence. His position on this motion is that “the death of Ms. MacNaughton was caused solely by the horrendous criminally negligent driving of Mr. Towns, as described at the preliminary hearing, and not by any mechanical defect in the truck that Mr. Towns was driving.” Assuming this to be a realistic defence, if separate trials were ordered, not only would there be a risk of inconsistent verdicts, but also a concern that the truth would not be discovered at either trial: R. v. Suzack, at para. 88.
[12] Ramono also argues that there should be a severance because he may want to lead evidence of Towns’ disposition to drive recklessly, and when impaired by alcohol, and that Towns would likely object to the admission of such evidence. However, an accused has the right to call evidence of propensity on the part of a co-accused, even in circumstances where the prosecution could not call such evidence, provided that the evidence is relevant: R. v. Kendall, [1987] O.J. No. 388 (Ont. C.A.), at p. 11. I agree with Crown counsel that I should not, on this motion, be asked to speculate on what position Towns may take with respect to such evidence, or what ruling may then be appropriate.
[13] For the reasons given, the application for severance is dismissed.