R. v. Serrano, Hussain and Persaud, 2017 ONSC 4940

R. v. Serrano, Hussain and Persaud, 2017 ONSC 4940

CITATION: R. v. Serrano, Hussain and Persaud, 2017 ONSC 4940

COURT FILE NO.: CR-161690000551-0000

DATE: 20170918

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DIEGO SERRANO, ALI HUSSAIN and ANTHONY PERSAUD

Applicants

COUNSEL:

Jeremy Streeter, for the Crown

Michael Lacy, for Ali Hussain

Anthony Persaud, In Person

HEARD: July 20, 2017

SEVERANCE APPLICATION

A.J. O’MARRA J.

1The applicant, Ali Hussain, joined in the application by Anthony Persaud, unrepresented, seeks severance from co-accused Diego Serrano on a multi-count indictment set to proceed November 10, 2017 to trial before a judge and jury, anticipated to take three weeks.

2The applicants are co-accused with Diego Serrano in count 3 trafficking in cocaine on August 21, 2014 on a 12 count indictment. In addition, the applicants are charged in count 4 with possession of proceeds of crime in relation to the alleged trafficking offence on August 21, 2014.

3All other counts on the indictment involve only Diego Serrano. In addition to being co-accused with Hussain and Persaud in count 3 with respect to events of August 21, 2014, Serrano is charged with trafficking cocaine and possession of proceeds of crime in relation to four discreet drug transactions alleged to have occurred on August 19, (counts 1 and 2), August 21, (counts 5 and 6), September 23, (counts 7 and 8), October 7, (count 9) and October 8, 2014, (count 10) Further, Serrano is also charged with trafficking cocaine by offer between February 6, 2015 and May 14, 2015, (count 11) and February 18, 2015, (count 12).

4Hussain and Persaud are not connected or alleged to have been involved with Serrano on any of the dates that allege offences that involve only Serrano. The evidence which will be adduced at trial against Serrano with respect to ten counts that involve him exclusively is neither admissible nor relevant to allegations involving the applicant and Persaud.

5The applicants seek severance from co-accused Serrano for trial or in the alternative request that counts #4 and #5 be severed from the other counts in the indictment.

Nature of the Case

6The Crown’s case against all accused is principally that of a police agent involved in a lengthy police project investigation.

7The allegations of drug trafficking and possession of proceeds of crime arise out of a two year investigation conducted by the Ontario Combined Forces Special Enforcement Unit (CFSEU), referred to as Project OPhoenix in which the police utilized a police agent who sought to purchase cocaine. On June 2, 2015, the police conducted a global takedown and arrested 20 people which included the applicants and Serrano.

8The case originally proceeded in the Ontario Court of Justice on a 63 page information that alleged various drug related offences involving the 20 accused. While a preliminary inquiry date had been set, following the release of the Supreme Court decision in R. v. Jordan 2016 SCC 27 with respect to acceptable timelines to trial and unreasonable delay, the Crown severed the original information into different groups of accused for the purpose of prosecution and preferred three direct indictments for each group of accused. The applicants are charged with one count involving co-accused Serrano alleged to have occurred August 21, 2014 count 3 and together, but not with Serrano with possession of proceeds of crime in count 4 from the alleged transaction.

9In count 3, trafficking in cocaine, it is alleged on August 21, 2014 the police agent sought cocaine from Diego Serrano from whom he had purchased cocaine earlier on August 19, 2014. It is alleged Serrano connected the agent with Hussain and Persaud, who provided the agent with cocaine and received payment. All other offences alleged in the indictment involved Serrano and police agent exclusively. None of the alleged offences involving Serrano involve Hussain or Persaud.

10The applicant, Hussain’s defence, as stated by counsel is identification and/or that he was an agent for the purchaser and not involved in the trafficking of cocaine. As Persaud is unrepresented no defence has not been declared. The trial date for this matter has been set for November 10, 2017 with an anticipated trial length of three weeks with judge and jury.

11Counsel for Hussain argues that the majority of trial time will involve the evidence as it relates to the allegations against Serrano. Further, counsel for Serrano has brought an application for extensive disclosure in order to challenge the one party consent intercept authorization for the police agent and to challenge the police agent’s credibility. The applicant and Persaud have not joined in those applications.

12The principle concern advanced by the applicants is that the evidence against Serrano may be overwhelmingly prejudicial to them, notwithstanding any jury direction that they are to consider only the evidence admissible as against the applicants.

The Law on Severance

13Severance of accused is dealt with in s. 591(2) and (3)(a) of the Criminal Code of Canada, which states:

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

(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; and

(b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts.

14Accordingly, the court may, where it is satisfied the interests of justice so require, order a defendant be tried separately from any other defendant.

15The onus is on the applicant to show on a balance of probabilities that the interests of justice require severance of the accused or counts.

16In R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146 at para. 16-17, the Supreme Court stated that “the interests of justice” criteria is quite broad and encompasses the right of an accused to be tried on evidence admissible against him, as well as society’s interest in seeking that justice is done in a reasonably efficient and cost effective manner. The court in its exercise of discretion must ensure “that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in the single trial”.

17In Last, at para. 18, it was noted that the courts have identified a non-exhaustive list of factors to be considered and weighed in assessing how the interests of justice may be served in a particular case and an injustice to the accused avoided. The factors include the following:

• 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.

18In the exercise of the trial judge’s discretion, Sopinka J. observed in R. v. Crawford, R. v. Creighton, 1995 CanLII 138 (SCC), [1995] 1 S.C.R. 858, at para. 31:

Although the trial judge has the discretion to order separate trials, that discretion must be exercised on the basis of principles in law which include the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused.

19It is also to be remembered that where an accused is alleged to have acted in concert with another there is a strong presumption in favour of joint trials. In R. v. Chow (2005), 2005 SCC 24, 195 C.C.C. (3d) 246 at para. 48 in reference to the Ontario Court of Appeal decision in R. v. Torbiak and Gillis, 1978 CanLII 2266 (ON CA), [1978] O.J. No. 580, the court stated, “it is a well-established rule that where the essence of the case is that the accused were acting in concert, they should be jointly indicted and tried, and an appellate court will not interfere with the discretion of the trial judge unless he has failed to exercise it judicially or his decision had caused a miscarriage of justice.”

i) Factual or Legal Nexus

20In this instance there is both a legal and factual nexus between the counts that support them being heard together. Legally, all counts allege the same conduct, trafficking cocaine and possession of proceeds of crime. Factually, all of the transactions involve the same principal witness, the police agent, and those involved in surveillance. The consideration of trial efficiency supports a joint trial.

ii) Complexity of the Evidence

21Counsel contends that Serrano’s applications, which include an application to set aside the one party consent authorization makes the matter unduly complex, whereas because Hussain and Persaud have not joined in Serrano’s application the case as against them is a straightforward one. However, in this instance, Serrano’s applications for additional disclosure regarding the agent and the Garofoli application with respect to the one-party consent authorizations are scheduled to be conducted in advance of the trial date. As such they will not add to the duration or complexity of the trial proper. This factor does not support severance.

iii) General Prejudice

22Counsel submits that given the evidence against Serrano with respect to the counts that involve him exclusively is inadmissible as against the Hussain and Persaud there is however a real possibility of prejudice to them, notwithstanding a specific jury instruction.

23It is alleged that on August 19, 2014 that Serrano provided two ounces of cocaine to the police agent. When he requested a greater quantity, half a kilo of cocaine was arranged and provided to the agent on August 21, 2014 by the applicant and Persaud. Counsel contends that the implication of the intercept between Serrano and the police agent on August 21, 2014 is that Serrano was going back to the same people he had obtained the two ounces of cocaine from to get the requested half kilo of cocaine provided by Persaud and the applicant.

24Further, the allegation with respect to count 11 is that Serrano offered to involve the police agent in a large drug trafficking scheme in which he could arrange the importation of upwards of 200 kilograms of cocaine at a time from Peru. Serrano in the intercepted conversation indicated to the agent he was working with other partners. Counsel contends that a jury might infer that Serrano who is allegedly involved with others in a large importation scheme is involved with Hussain and Persaud “as the others” because of their involvement with Serrano in an earlier transaction. There is a risk of guilt by association.

25In support, counsel refers to the observation in R. v. Welsh, 2013 ONCA 190, [2013] O.J. No. 1462, (O.C.A.) at para. 182 that where the case against the accused seeking severance is weak and the case against the other accused is substantially stronger, there is a greater risk that the jury will resort to the impermissible reasoning of guilt by association to shore up the case against the former.

26While this is a matter in which there will be more evidence tendered against Serrano given the number of allegations cited in the indictment that does not mean that the case as against the applicant and Persaud is weak or that the jury will resort to impermissible reasoning even with proper direction.

27Further, given the stated defences of identification and/or acting as agent for the purchaser, there is no real risk of moral prejudice.

28To the extent that the defence is identification of the applicant as a participant, if the evidence is lacking then there is no association with Serrano. He could not be guilty by association if he is not identified as being involved with Serrano.

29To the extent that the applicant’s defence is as agent for the purchaser, it necessarily involves an admission that he supplied the drugs. The defence advanced requires an association with people involved in the drug trade. In that context, any connection to Serrano would not lead to an improper conclusion of guilt by association.

30In any event, in the context of both stated defences, any risk of moral prejudice would be significantly reduced by a proper instruction to a jury directing them not to leap from a conclusion of Serrano’s guilt to a conclusion that by association Hussain and Persaud are bad persons and thus must be guilty or deserving a punishment.

31Similarly, there is also no real risk of reasoning prejudice as the allegation is that the Hussain and Persaud are involved only in one count that involves the trafficking of cocaine. There is no evidence to support their involvement with the other incidences of cocaine trafficking. It is acknowledged by the Respondent Crown that none of the evidence to be adduced at trial with respect to those counts are admissible as against Hussain or Persaud.

32Any prejudice which might occur by implication as suggested by counsel would be dispelled by the jury being specifically instructed to consider each count on the indictment separately and not to use the evidence relating to one count as evidence on other counts. Moreover, it is assumed that juries will follow and apply instructions and to consider only that evidence which relates to the counts under consideration.

iv) Avoiding Multiplicity of Proceedings

33In R. v. Ny, 2016 ONSC 8031, [2016] O.J. No. 6618 at para. 42 (SCJ), Fairburn J. noted that there is a presumption in favour of joint trials:

The jurisprudence is replete with sound policy reasons for conducting joint trials. It is a well-recognized principle of law that the interests of justice are most often best served by having people who are allegedly to have committed crimes together, tried together and their guilt or innocence determined together. As Laskin J.A. held at R. v. Whylie (2006), 2006 CanLII 9037 (ON CA), 207 CCC (3d) 97 (Ont. C.A.) at para. 24:

A single trial for two or more accused generally conserves judicial resources, avoids inconsistent verdicts, and avoids the witnesses having to testify more than once.

34If Hussain and Persaud were severed from Serrano, the same trial as to the August 21 transaction would have to be conducted twice. All witnesses, including the police agent, would have to testify about the same incidence again and two different triers of fact would have to consider the evidence and come to a conclusion. Conducting the same trial more than once would have the effect of adding delay in the system.

35The second option requested by the applicants of having the counts severed would still add to the costs of the proper administration of justice by requiring Serrano to participate in another trial as defendant, with Hussain and Persaud. It would involve the same witnesses, the police agent and surveillance officers, from Serrano’s first trial who testified on the other counts. As such, the interest in avoiding a multiplicity of proceedings strongly favours a joint trial.

36It was suggested that if severance was granted the trial involving Serrano could be completed within two weeks and a separate jury trial for Hussain and Persaud (assuming he maintains the same defence) could be completed within one week, thereby utilizing the three weeks available November 10, 2017 and avoid any delay.

37Even though the case against Hussain and Persaud is relatively straight forward, not knowing the defence of Persaud there is no assurance that judge and jury trial would proceed in the one week time frame as suggested. I am not convinced that two separate judge and jury trials could be conducted in the three week time frame presently allocated for the one trial.

38In my view, there is no justification to deviate from the general rule that it is in the public interest that those alleged to be jointly involved in criminality be tried together. Severance would lead to a multiplicity of proceedings and an unnecessary duplication of evidence.

39In the result, the applicant has failed to establish that in the interests of justice severance is required in the particular circumstances of this case. The application for severance of the accused and/or the counts involving Hussain and Persaud is dismissed.

A.J. O’Marra J.