CITATION: R. v. Bush, 2017 ONSC 6171
COURT FILE NO.: 15-2310
DATE: 20171017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
IAN BUSH
Applicant
– and –
HER MAJESTY THE QUEEN
Respondent
Geraldine Castle-Trudel/Howard L. Krongold, for the Applicant
James Cavanagh/Tim Wightman, for the Respondent
HEARD: October 6, 2017
Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the end of the trial.
REASONS FOR decision
beaudoin j.
1. Ruling on Application to have accused sit at counsel table
[1] Ian Bush is charged with the attempted murder of Ernest Côté, robbery, forcible confinement and two weapons offences.
[2] Mr. Bush seeks an order permitting him a sitting place at the counsel table beside his counsel. Two grounds are argued in support of this application:
That exceptional circumstances exist at the trial and pretrial arising from the length of the proceedings;
That note-taking in the prisoner’s box precludes careful observation of the witnesses.
[3] In May 2017, Mr. Bush was tried and convicted of a triple murder. At that time, he was sitting in the prisoner’s box and his behaviour was subject to negative comments by the trial judge. Mr. Bush’s counsel submits that Mr. Bush’s behaviour will improve if he is allowed to sit at the table next to her and fully participate in his trial. She further argues that any security risks can be managed.
[4] The Crown opposes this application and has called one witness, Inspector Samir Bhatnagar of the Ottawa Police Services, who is in charge of security at the Ottawa courthouse. Ottawa courthouse is primarily staffed by unarmed Special Constables who are responsible for the transport, temporary custody and escort of prisoners for their attendances in court. Additional armed officers patrol the building. Inspector Bhatnagar testified that allowing Mr. Bush to sit at the counsel table would represent a security risk that would require two armed officers in the courtroom in addition to the special constables who would be in attendance. There are staff shortages at the present time and there would be a significant financial cost if the additional security was put into place.
[5] Inspector Bhatnagar’ s officers have informed him that Mr. Bush has been observed doing finger push-ups in his cell and these exercises require a great deal of strength. He also identified many common objects in the courtroom, such as pens, pencils, coffee mugs and computers that could be used as weapons. Due to the publicity surrounding the first trial, Mr. Bush has become known as a convicted murderer of three elderly members of the community. In his view, Mr. Bush presents a security risk to himself and to others in the court room. In cross-examination, he acknowledged that additional security devices could be put into place but that all of these would be at a cost.
[6] In the course of their investigation of these offences, the police executed two search warrants at Mr. Bush’s residence. The search discovered numerous improvised weapons such as sharpened wooden stakes, sharpened wooden dowels and an iron bar. Photographs of these items were submitted in evidence.
[7] During his previous trial, members of Mr. Bush’s family testified about his strength and consistent physical fitness regime. Mr. Bush’s son, Brock, testified that his father taught him how to punch an opponent in the throat. His son Brett testified that his father instructed him to punch any opponent in the nose or the throat to gain an advantage in a fight. Mr. Bush’s former common law, Carrie Mortson, testified that Mr. Bush often told her that he could get someone to pass out by simply placing his arm across their neck.
Analysis
[8] The Criminal Code is silent on the issue of an accused’s position in the court and there are two competing views on this issue. The traditional approach is stated in R. v. Gervais, 2001 28428 (Ont. S.C.) at para. 8 and R. v. Browne 2014 ONSC 2519, at paras. 4-7:
The customary position of the accused in the courtroom is in the dock.
The trial judge has discretion as to the position of the accused in the courtroom in individual cases.
The presence of the accused in the dock does not violate his or her Charter Rights.
[9] Justice Campbell said this at paras. 15 and 17 in Gervais:
15 The modern functional reasons for the dock have to do with the focus of the trial. If the accused remain in the dock they remain at centre stage. The focus of the trial remains on them. The trier of fact is able to observe their responses to the evidence as it unfolds. The jury and indeed the judge and counsel are on balance less likely to be distracted by communications between accused and counsel.
17 If counsel feel that the position of the accused in the courtroom might prejudice the jury, counsel can ask the judge for an appropriate direction. Some judges as a matter of course direct the jury that everyone in the courtroom has their traditional and individual place including the judge, the jurors and the accused; that the accused like the judge and the jurors sits in the place traditionally reserved for him, and they cannot take that against an accused who is presumed innocent. For instance:
Mr. D. is the accused person before the court, the defendant. Sometimes we use the word defendant, sometimes the word accused. Sometimes we may refer to him by his name, Mr. D.
Don’t take anything against him by the use of the word defendant or accused. As you are now well aware, he is presumed innocent until proven guilty beyond a reasonable doubt, and the fact that someone calls him accused or defendant doesn’t mean anything.
Notice that Mr. D. has his own place in the courtroom. That’s the place reserved for the defendant, where defendants regularly sit. He has his place in the courtroom just like you have your place in the jury box and the witnesses have their place in the witness box and I have my place, and counsel have their table and the reporter, and the registrar, and the deputy have their own place.
So don’t take anything one way or another in relation to Mr. D. because he’s sitting in the place of the courtroom especially reserved for him.
[10] In R. v. M.T., 84 W.C.B. (2d) 644, 2009 43426 (Ont. S.C.), Justice Nordheimer (as he then was) focused on the issue of prejudice to the accused and promoted different approach and noted at para 3:
3 In addition to the existing authorities, another consideration that is of some considerable importance to this issue is that in his report to the Ontario Government on the wrongful conviction of Guy Paul Morin, the Honourable Fred Kaufman, Q.C., a former judge of the Quebec Court of Appeal, recommended that accused persons should be entitled to sit with their counsel absent a proven security risk. In his report, Justice Kaufman made the salient point that:
The environment in which accused persons are tried must reflect that he or she really is innocent until proven guilty beyond a reasonable doubt.
[11] Justice Nordheimer ultimately resolved any debate in favour of the accused in that case as the accused was a young person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c.1 which recognizes the special needs of young persons.
[12] In this case, Mr. Bush is a convicted murderer. A jury concluded that he has committed three brutal killings. In none of the cases cited by counsel has there been a situation where the court has been called upon to decide a convicted murderer’s place in the courtroom for a subsequent trial.
[13] I accept the evidence put forward by the Crown that Mr. Bush presents a security risk to both himself and others in the courtroom. Moreover, if Mr. Bush were permitted to sit at the counsel table, the jury would be unable to observe his demeanour and behaviour during the trial. This is an important consideration in context of a jury trial.[^1]
[14] Any concerns about prejudice resulting from the Mr. Bush’s position in the prisoner’s box can be adequately dealt with by way of instruction. Having two armed officers in the court room standing close by would create as much of a prejudicial effect as requiring him to sit in the prisoner’s box. Mr. Bush can continue to have access to pencil and paper in order to take notes. The court can accommodate short meetings between Mr. Bush and his counsel should the need arise during the trial.
[15] For these reasons, Mr. Bush’s request to sit at counsel table is dismissed.
2. Ruling on application for severance
[16] Mr. Bush also seeks a severance of the two firearm offences; he submits that there is no factual or legal nexus between the attempted murder group of charges and the weapon charges; the counts do not constitute overlapping transactions and the essential elements of the offences are entirely dissimilar. In her factum, counsel for Mr. Bush emphasized the issue of prejudice.
[17] In argument, counsel for Mr. Bush submitted that the prosecution of these offences would consume court time and that this evidence would be confusing and distracting to the jurors. She submitted that at least three days would be consumed in examination and cross-examination of the witnesses, and that Mr. Bush’s ownership of the weapons is strongly contested. Her position on this particular point is somewhat confusing. In arguing that the counts should be severed, counsel submitted that the trial of the weapon offences would only take one day.
[18] In response, the Crown submits that counts 4 and 5 on the indictment allege simple possession of the firearms. They do not allege “use” offences. In terms of any prejudice to Mr. Bush, these possession offences pale in severity to the more serious charges on the indictment; attempt murder, forcible confinement and robbery.
[19] Mr. Bush was previously facing allegations in an indictment containing 17 counts. In an effort to focus on the trial and simplify the issues for the jury, the Crown edited the indictment from 17 counts to 5 counts. The Corwin submits that this exercise in discretion eliminated much of the confusion and potential prejudice that could have existed from a lengthy, multi-count indictment.
[20] The Crown notes that the Bush family members were not cross-examined on their evidence about the firearms in the previous trial. Moreover, the Crown submits that all of the witnesses who might be expected to testify on this issue will be called as witnesses in any event such that any additional trial time will be limited.
[21] A sawed-off 22 calibre rifle was found in a black bag concealed in the furnace room at Mr. Bush’s residence. The contents of the bag included other weapons, various types of rope, duct tape, plastic bags and 22 calibre ammunition. At trial, the Crown says it will argue that these items were part of “a package” that was used in Ian Bush’s methodical approach to the commission of the offences.
Analysis
[22] Section 591 of the Criminal Code of Canada governs the issue of joinder and severance of counts on an indictment. A trial judge exercises a broad discretion on severance applications.
[23] In R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, the Supreme Court of Canada has identified a number of principles and factors to be considered by the trial judge in a severance application. At para. 16, the court held:
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…
[24] Mr. Bush bears the burden of proof on the balance of probabilities that the ends of justice require severance.[^2]
[25] In applying the case law to the facts of this case, I note the following:
The legal and factual nexus between the counts
[26] The offences against Ernest Côté are alleged to have occurred on December 18, 2014. Police executed the search of Mr. Bush’s home on December 19, 2014. In addition to the weapons charges, Mr. Bush is also charged with counts of attempt murder, robbery and forcible confinement. The sawed-off 22 calibre rifle was found in a bag which contained a number of different items. All the items found in the bag can be used during the course of a home invasion robbery to force compliance and/or restrain a potential victim. The discovery of the duct tape and plastic bags in the same location as the sawed-off 22 calibre rifle is of particular significance. Duct tape and plastic bags were used to confine Ernest Côté.
The complexity of the evidence
[27] The evidence surrounding the firearms is not complex.
Whether the accused intends to testify on one count but not another
[28] Mr. Bush chose not to testify at the triple murder trial. At this point, there has been no indication that he intends to testify on one count but not another.
The possibility of inconsistent verdicts
[29] The nature of the contested evidence does not present the possibility of inconsistent verdicts.
The desire to avoid a multiplicity of proceedings
[30] The firearms evidence comes as a result of the same investigation into the forcible confinement, robbery and attempt murder of Ernest Côté.
[31] Severance of counts 4 and 5 on the current indictment would create the need for a third trial for Mr. Bush. This would require further resources in an already overburdened criminal justice system. Officers involved in the search of the residence would be required to re-attend at a third trial to give the same evidence they will provide on the upcoming trial.
The use of similar fact evidence at trial
[32] This does not apply.
The length of the trial, having regard to the evidence to be called
[33] The trial is scheduled to run for six weeks (Oct 23 – Dec 1, 2017). The evidence of the search of Mr. Bush’s residence is anticipated to take, at most, three more days of court time. This estimate is generous given that many of the witnesses on this issue will be called in any event.
The potential prejudice to the accused with respect to the right to be tried within a reasonable time
[34] Thirty-four months have passed since the date of Mr. Bush’s arrest on the attempt murder charge. The elapsed time falls outside the prescribed 30 months set out by the Supreme Court of Canada in R. v. Jordan 2016 SCC 27, [2016] S.C.J. No. 27. Mr. Bush has already filed an application alleging a breach of his right to be tried within a reasonable time pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms in relation to the current indictment before the court.
[35] Severance of counts 4 and 5 would require a further trial date to be set in the future. More time will pass causing prejudice to Mr. Bush’s right to be tried on these counts within a reasonable time.
The existence of antagonistic defences as between co-accused persons
[36] The issue of antagonistic defences does not arise in this case.
[37] After balancing these factors and assessing the interest in seeing that justice is done in a reasonably efficient and cost-effective manner, the benefits to the administration of justice in trying the counts together significantly outweigh the minimal prejudice to Mr. Bush and the application for severance is dismissed.
Mr. Justice Robert N. Beaudoin
Released: October 17, 2017
CITATION: R. v. Bush, 2017 ONSC 6171
COURT FILE NO.: 15-2310
DATE: 20171017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
IAN BUSH
Applicant
– and –
HER MAJESTY THE QUEEN
Respondent
REASONS FOR decision
Beaudoin J.
Released: October 17, 2017
[^1]: R. v. Minoose, 2010 ONSC 6129 at paras. 37-40.
[^2]: R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at para. 52., as set out in Last and R. v. D.A.C., 1996 8341 (BC CA), [1996] B.C.J. No. 583, 106 C.C.C. (C.A.) at para. 9