Court File and Parties

Court File No.: 13-4226 Date: 2017/11/17 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Christopher Newton, Applicant

Counsel: J. McKenzie and J. Booy, on behalf of the Crown L. Wilhelm, on behalf of the Applicant

Heard: November 16, 2017

A. J. Goodman J.:

Ruling on Application for Severance

[1] This is an application brought by Christopher Newton (“Newton”) for severance of accused persons in a multi-count indictment, pursuant to s. 591(3) of the Criminal Code.

[2] The co-accused Shaquille Collins (“Collins”) does not join in this application and has not offered any response to it. The Crown opposes the application for severance.

Issues

[3] The central issue is whether the applicant’s right to a fair trial will be undermined by the joinder of both accused on an indictment related to different paths of liability stemming from similar alleged incidents and the reasonable time to trial.

[4] Do the interests of justice require that the counts be severed?

Positions of the Parties

[5] The applicant moves for severance in relation to an indictment alleging his participation in a count of second degree murder of James Bajkor (“Bajkor”) and the attempted murder of Justin Beals (“Beals”). The applicant’s co-accused Collins is charged with the first degree murder of Bajkor and the attempted murder of Beals.

[6] The applicant seeks to be tried separately from Collins. If the accused are tried together, the applicant’s trial will be delayed from an anticipated start date of February 12, 2018 to May 7, 2018. This delay is occasioned by Collins' retention of new counsel and availability. The applicant submits that this delay infringes his right to a trial within a reasonable time and justifies severance.

[7] The applicant further asserts that the jury will be confused in its understanding of the law applicable to each accused because he is charged with second degree murder while the co-accused is charged with first degree murder. The applicant submits that not only are there different charges related to both accused, but there is also an added layer of complexity premised on the Crown’s theory of liability vis-à-vis the applicant in that he is alleged to have aided and abetted Collins in the planned and deliberate killing of Beals (in which Bajkor died as a result).

[8] The applicant submits that this case raises difficult legal issues of transferred intent and party liability. Instructions to the jury will be required to explain the distinct and varied pathways of liability and will be complex, given the nature of the varied charges as between both accused. The applicant submits that these circumstances create a significant risk that the jury will be confused in its understanding of the law applicable to each individual accused and handicapped in its ability to assess the evidence and apply the law to each accused as required. This in turn will create a substantial risk to the applicant’s rights to a fair trial.

[9] The Crown submits that none of the rationale relied upon by the applicant, collectively or standing alone, require severance. The Crown submits that the evidence is intertwined to such an extent that holding separate trials would be an artificial division, would result in inconsistent verdicts or rulings, and would defeat the truth-seeking function of the jury.

[10] The Crown contends that the main witnesses in this case have already testified three times: at the joint preliminary hearing, at trial, and at the preliminary hearing for the youth co-accused. Should the applicant be successful, Newton and Collins will each be tried by a different jury, weeks apart, on essentially the same evidence with exactly the same witnesses. Newton's trial would commence on February 12, 2018 and finish on or about March 16, 2018. The pre-trial motions for Collins are targeted to begin on March 12, 2018. His trial is to commence on May 7, 2018 and finish on or about June 8, 2018.

[11] The Crown submits that the jury can fully understand and follow the directions of the trial judge even in a case where each accused is charged with different offences and paths to liability related to the same incident. Multiplicity of proceedings is another factor raised by the Crown.

[12] The Crown asserts that the applicant has not demonstrated that it is in the interests of justice to grant severance of counts.

Legal Principles

[13] The joinder and severance of counts in an indictment are dealt with in s. 591 of the Criminal Code, which provides as follows:

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.

(2) Where there is more than once count in an indictment, each count may be treated 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 counts.

[14] The Code provides for the exercise of discretion where a court “is satisfied that the interests of justice so require”. These words obviously confer a broad discretion. While the Crown is itself given a broad discretion in joining any number of counts in a single indictment, the court has the power to order separate trials where the interests of justice require it.

[15] It is not my intention to canvass the plethora of authorities on this subject. However, the starting point in considering the exercise of the court’s discretion is found in the Supreme Court of Canada’s seminal decision in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146.

[16] In Last, the trial judge had declined to order separate trials where an indictment alleged two separate sexual offences against an accused that were unrelated in terms of time and location and involved different complainants. The trial judge found that there was a nexus in time and place because the incidents occurred roughly one month apart in the same city. He was not persuaded that the question of prejudice would be significant, since a modern jury should be able to handle appropriate instructions given by the trial judge. He did not place much weight on a statement by defence counsel that the accused might wish to testify on counts related to one incident but not the other. The accused was convicted on all counts, and he appealed.

[17] The Court of Appeal dismissed the appeal. The majority held that the trial judge had acted judicially in refusing to sever the counts in the indictment. Justice Juriansz dissented, and opined that the trial judge erred in assessing the weight of the relevant factors and their cumulative effect on the interests of justice.

[18] On further appeal to the Supreme Court of Canada, the appeal was allowed and a new trial was ordered. Justice Deschamps, for a unanimous court, stated the following, at para. 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.

[19] At para. 18 of Last, Deschamps J. listed the factors to be considered by the court in exercising its discretion under s. 591(3) of the Code:

(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 at trial; (h) the length of the trial having regard to the evidence to be called; (i) the potential prejudice to the accused with respect to the right to be tried within a reasonable time. See R. v. E.(L.), 94 CCC (3d) 228 (Ont. C.A.); R. v. Litchfield, [1993] 4 S.C.R. 333; and 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. [^1]

[20] In R. v. Savoury (2005), 200 CCC (3d) 94 (Ont. C.A.), at para. 22, Doherty J.A. had occasion to explain what is meant by the interests of justice in the case of severance:

A trial judge may order severance of the trial of a co-accused only if satisfied that “the interests of justice so require”: Criminal Code s. 591(3). The interests of justice encompass those of the accused, the co-accused, and the community as represented by the prosecution. The trial judge must weigh these sometimes competing interests and will direct severance only if the accused seeking severance satisfies the trial judge that severance is required. To satisfy that burden, the accused must overcome the presumption that co-accused who are jointly charges and are said to have acted in concert, should be tried together.

Analysis

[21] A trial judge has a wide discretion to order separate trials where joinder of counts would exact an injustice. Severance will be granted only where an accused displaces the presumption on a balance of probabilities.

[22] The factors identified by the Supreme Court of Canada are not exhaustive. They simply help capture how the interests of justice may be served in a particular case to avoid an injustice. Of course, some of these factors will have greater weight, less weight, or even no weight, depending on the circumstances. Some of these factors may overlap. No one factor is determinative and all relevant factors must be weighed by a trial judge in the determination of whether severance is in the interest of justice.

[23] A person charged with a crime has a right to be tried on evidence admissible against him or her. That said, inadmissible or prejudicial evidence can potentially impact the fairness of the proceedings and occasion a miscarriage of justice. It is in both the interests of the accused and society that trial judges ensure fairness for the accused throughout the proceedings.

[24] It is trite law that there is presumption of joint trials for accused alleged to have acted in common in a joint enterprise. The burden rests on the applicant to demonstrate why the interests of justice require severance: R. v. Pelletier (1986), 29 C.C.C. (3d) 533 (B.C.C.A.), at para. 12, quoted with approval in R. v. Crawford, [1995] 1 S.C.R. 858, at p. 881. That said, it is not lost on me that this analysis requires a balancing of interests.

[25] Weighing against severance is the desire to avoid multiple proceedings, the prospect of two lengthy trials, and the potential of inconsistent verdicts. [^2] Where, however, the risk of prejudice to an accused is significant and outweighs the benefits to the administration of justice of joinder of counts, severance should be ordered. This 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.

[26] I am reminded that severance can impair not only efficiency, but also the truth-seeking function of the trial.

[27] In this case, the applicant advances two arguments. First, joinder of accused will result in delay and will prevent the applicant’s trial from being heard in a reasonable time. Second, joinder will complicate jury instructions dealing with party culpability, paths of liability (and perhaps other complex issues that may arise in this case) in a way that may cause prejudice to the applicant’s rights to a fair trial.

[28] Before turning to the application of the appropriate factors, I will briefly canvass the facts of this case that are relevant to the exercise of my discretion.

[29] The applicant was convicted by a jury of second degree murder and attempted murder on June 12, 2014. Collins was convicted of first degree murder and attempted murder at the same trial. The Ontario Court of Appeal ordered a new trial on June 15, 2017 because of an error in the judge's charge to the jury.

[30] Following the Court of Appeal’s order for a new trial, the Administrative Assistant to the Regional Senior Justice in Hamilton sent out an email on June 29, 2017 canvassing dates for a judicial pre-trial in this matter. The first pre-trial was held on July 19, 2017. Pre-trial motion dates were targeted for November 14, 2017 and a five-week jury trial was targeted to begin on February 12, 2018. On August 3, 2017, before those dates were confirmed, new counsel for Collins contacted the Crown and requested a further judicial pre-trial. She confirmed that she was unavailable for the targeted trial date. On August 4, 2018, a second judicial pre-trial was set for September 13, 2017. On August 14, 2017, new motions dates were offered beginning March 12, 2018, and a new trial date was offered beginning May 7, 2018. All counsel confirmed their availability for those dates.

[31] While the applicant discusses potential delay under the Jordan rubric and suggests that the 13 weeks of additional delay affects his right to a trial within a reasonable time and justifies severance, no s. 11(b) application is brought. That does not foreclose the argument as it relates to the viability of severance.

[32] I observe that the applicant takes no issue with the scheduling of the trial dates for February 2018, but urges severance based on the 13-week delay to May 2018 in order to accommodate the schedule of Collins’ new counsel of choice. In response, the Crown submits that the matter has been moving along expeditiously, even in the face of Collins’ request for a change of counsel, and the delay of 13 weeks is not significant. I accept that the Crown, in utilizing the words “a mere 13 weeks of delay” is not intending to trivialize the passage of 13 weeks. Any time an accused spends in custody awaiting trial is relevant.

[33] By implication, the applicant takes no issue with the reasonableness of the original re-trial date beginning February 12, 2018. The applicant acknowledges that in a re-trial situation, the current jurisprudence supports the position that the “constitutional clock should be rewound at the time of the order by the appellate court” although there is no jurisprudential guidance about which about which point the constitutional clock should be rewound to. The applicant asserts, however, that wherever the clock is set, the second trial date is wholly unacceptable.

[34] The s. 11(b) issue is not before me and is properly referenced in order to support the severance application. The applicant makes the assertion without any analysis justifying why the first trial date is reasonable but the second trial date, a mere 13 weeks away, is “wholly unacceptable”. The Crown says that if the applicant is successful, the pre-trial motions for Collins will begin during the final week of the applicant's trial. Collins' trial will begin seven weeks after Newton's trial finishes. There will be exactly 33 court days between the expected end of Newton's trial and the start of Collin's trial on exactly the same evidence.

[35] I observe that the framework in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, does not require severance in all instances where some additional delay is caused by a prosecution proceeding jointly. As Fairburn J. stated in R. v. Ny, 2016 ONSC 8031, at paras. 45-46:

The important policy rationales for keeping joint trials intact must not be lost in the increasing shadow of an approaching ceiling. As the British Columbia Court of Appeal recently held, severance is not a “panacea” when delay arises in a multiple accused trial: R v. Singh, 2016 BCCA 427 at para. 83.

The implications of proceeding too quickly to sever accused, simply because the ceiling is approaching are obvious and striking. This is particularly true in jurisdictions like Brampton, where judicial and courthouse resources are long stretched to beyond their limits. The implications of conducting virtually the same trial more than once would be profound and potentially add to delay in the system: R. v. Koruz, 1992 ABCA 144 at para. 83, aff’d [R. v. Schiewe, [1992] S.C.C.A. No. 299].

[36] In this case, I accept that the Crown and all parties have attempted to expeditiously secure fixed trial dates to move this matter along. In light of the overall context of this case and the presumption of having joint trials, I am not satisfied that this is a case where the additional passage of time warrants severance at this stage.

[37] As an additional ground to justify severance, the applicant asserts that jurors will be confused by the legal issues in this case. This argument has no merit. There is a strong presumption that jurors understand legal instructions, are honest enough to live up to their oaths, and are smart enough to apply the instructions. The issues in this case are no more complicated than those found in most joint trials.

[38] The notion or perception that juries are incapable of following the instructions provided by the trial judge, or that they will inevitably follow the chain of forbidden reasoning has been dispelled by numerous appellate courts. Appellate decisions from cases past and present confirm that there is a strong judicial confidence that jurors are faithful to their oath and follow the instructions given to them by the trial judge: R. v. Corbett, [1988] 1 S.C.R. 670. See also R. v. Vermette, [1988] 1 S.C.R. 985.

[39] In Phillips v. Nova Scotia, [1995] 2 S.C.R. 97, at paras. 133, Cory J. recognized the abilities of juries to follow instructions:

However, the strength of the jury has always been the faith accorded to the good will and good sense of the individual jurors in any given case. The confidence in the ability of jurors to accomplish their tasks has been put in this way in R. v. W. (D.), [1991] 1 S.C.R. 742, at p. 761:

Today's jurors are intelligent and conscientious, anxious to perform their duties as jurors in the best possible manner. They are not likely to be forgetful of instructions. The following passage from R. v. Lane and Ross (1969), 6 C.R.N.S. 273 (Ont. S.C.), at p. 279, approved in R. v. Corbett, [1988] 1 S.C.R. 670, at p. 695, is apposite:

The danger of a miscarriage of justice clearly exists and must be taken into account but, on the other hand, I do not feel that, in deciding a question of this kind, one must proceed on the assumption that jurors are morons, completely devoid of intelligence and totally incapable of understanding a rule of evidence of this type or of acting in accordance with it. If such were the case there would be no justification at all for the existence of juries . . .

[40] With respect, I find that the issues and potential instructions to the jury in regards to the pathways to liability or levels of culpability for the applicant and his co-accused are not complex in this case. I am satisfied that the jury will be able to follow instructions as to their determination of the facts based on applicable legal principles.

[41] While not determinative of the ultimate issue, I must consider the effect of an order severing the accused and ordering separate trials. If separate trials were ordered, two identical trials with the same witnesses, same evidence, and similar legal issues would be held. This would mean that each witness would have to testify about the events in question a number of different times, on back-to back trials before different juries. Prejudice to the accused is an important, and perhaps overriding, consideration; nevertheless unfairness, or potential unfairness, to the complainants is also a valid consideration.

[42] Other factors need to be considered. They include prejudice to the accused, the nexus between the allegations and the co-accused, the complexity of the evidence, tactical decisions about testifying, amongst other factors.

[43] Here, joint trials minimize the inconvenience to (and anxiety of) witnesses who would otherwise have to return to multiple courts to testify about the very same thing. There must be some consideration of those who must undergo the ordeal of testifying when determining the dictates of “the interests of justice”. Joint trials minimize the burden on already over-burdened courts.

[44] Joint trials are the norm even when there is a risk that one or more accused persons may be substantively prejudiced. As Watt J.A. recently wrote in R. v. Zvolensky, 2017 ONCA 273 at para. 247:

The prima facie rule of the common law, sometimes characterized as a presumptive rule [joint venture -- joint trial], is grounded in sound social policy reasons. ... [w]hat should not be forgotten about this common law rule is that it was not developed in a vacuum. Like other common law rules, it is the product of judicial experience in the trial of criminal cases. And that experience no doubt would have included commonplace joint trial events such as antagonistic or cut-throat defences, evidence of limited admissibility and differences in the nature and extent of evidence inculpatory of various accused. Yet the prima facie rule of joint venture - joint trial remains.

[45] I accept that the prima facie rule that joint ventures result in joint trials has developed through judicial experience and is grounded in strong policy reasons: see Crawford, at p. 880.

[46] In the event that any one or more accused call evidence in defence, a joint trial ensures that the jury will have the most complete picture thereby enhancing the truth-finding function of a trial.

Conclusion

[47] The applicant and his co-accused face serious charges related to the killing of Bajkor and attempted murder of Beals. Two sets of fixed trial dates have been set to accommodate various pre-trial applications and the trial. The dates are separated by 13 weeks. I do not wish to discount the impact on an accused’s liberty of remaining constrained in custody. However, in my opinion, the relatively short delay in this case to accommodate counsel for the co-accused is not serious enough to oust the presumption of joint trials for those alleged to have acted in concert.

[48] I am not persuaded that if denied severance, the applicant will endure prejudice that cannot be balanced with the appropriate rulings and instructions to the jury as to the admissibility of evidence and legal principles related to paths of liability, the proper consideration of probative value and potential for prejudice of evidence related to each accused, and the timeliness of the trial.

[49] For all of the aforementioned reasons, I find that the applicant has not met his burden on a balance of probabilities to demonstrate that the interests of justice require severance. The application is dismissed.

A. J. GOODMAN, J. Date: November 17, 2017

COURT FILE NO.: 13-4226 DATE: 2017/11/17 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent

• and - CHRISTOPHER NEWTON Applicant RULING ON APPLICATION FOR SEVERANCE A. J. GOODMAN, J. Released: November 17, 2017

[^1]: The tenth factor, antagonistic defences between co-accused, is not applicable here. [^2]: There is a disagreement between the parties as to whether inconsistent verdicts would result.