OSHAWA COURT FILE NO.: CR-17-14520
DATE: 20180525
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JACINDA ROSE SHENEEN HUDSON
Defendant/Applicant
J.D. Frost, for the Crown
M.G. McLachlan, for the Defendant, Jacinda Rose Sheneen Hudson
D.S. Sederoff, for the co-accused, Hazare Raj-Kumar Roman
HEARD: March 19, 2018
REASONS FOR DECISION
CHARNEY J.:
Introduction
[1] The Applicant is charged with unlawfully importing into Canada a substance included in Schedule 1 (fentanyl) contrary to s. 6(1) of the Controlled Drugs and Substances Act, (CDSA), possession for the purposes of trafficking in fentanyl and cocaine contrary to s. 5(2) of the CDSA, and three counts of possession of an identity document that related to or purported to relate to another person contrary to s. 56.1(4) of the Criminal Code.
[2] The Applicant has brought two separate applications in relation to these charges.
[3] The first application seeks an order severing counts 1-3, which deal with importing fentanyl and possession for the purposes of trafficking in fentanyl and cocaine, from counts 4, 5 and 6, which relate to the possession of false identity documents.
[4] The second application is for an order directing the respondent to disclose all information relating to “controlled deliveries” by the Royal Canadian Mounted Police (RCMP) or their agents in Ontario of packages containing fentanyl that arrived via British Columbia on or about October 18, 2016 sent by Digitalpartner Uniko from Shenxhenshi, Guangdong, China.
[5] I will deal with each of these applications in turn.
Factual Background
[6] On or about October 18, 2016, the RCMP intercepted four packages arriving from Guangdong, China via post from the same importer, Digitalpartner Uniko. These packages were addressed to three separate persons at three separate addresses in Ontario. One of the packages was addressed to the Applicant at her residence in Ajax, Ontario. The declaration on the package described the cargo as a “digital cable”, value $10.00.
[7] Each of the packages contained 300 grams of fentanyl.
[8] Photographs of all four packages were taken by the police, however, only the photographs of the package addressed to the Applicant have been disclosed to the Applicant.
[9] The Respondent has disclosed that all the packages were taken by the police, who conducted a “controlled delivery”. The first package was delivered to the Applicant at her home address. A second package was delivered in London, Ontario, and the controlled delivery resulted in an arrest and charges. An attempt to deliver the other two packages to another location in the GTA did not result in a successful delivery.
[10] The police staged a postal delivery of the package to the Applicant’s residence. The Applicant was not at home, but the package was accepted by the co-accused, Hazare Roman, who was staying with the Applicant at the time.
[11] When the Applicant returned to her residence she was arrested by the police and searched incident to the arrest. In her purse the police found the false identity documents that are the subject of counts 4-6. The police also found the Applicant’s Blackberry, which contained several messages between the Applicant and her co-accused regarding the delivery of the package.
[12] The police also conducted a search of the Applicant’s residence where they found the package (unopened) that was delivered on the front entrance table inside the residence and 10 grams of cocaine in 20 separate baggies with 0.5 grams in each bag in a sunglass case on the front entrance table.
[13] The Applicant’s position is that she knows nothing of the package that arrived at her address. She alleges that she has no knowledge of who sent the package and she is an innocent dupe.
Application for Severance
[14] The Applicant has been charged in counts 1-3 with importing fentanyl and possession for the purposes of trafficking in fentanyl and cocaine. On these counts she is co-accused with Hazare Roman.
[15] Counts 4-6 relate to the possession of false identity documents (a driver’s license, a citizenship card and a Social Insurance card, all in the name of Jennifer Clarke). These documents were found in the Applicant’s purse upon her arrest and search on November 4, 2016. The co-accused is not involved in these charges.
Positions of the Parties
[16] The Applicant takes the position that counts 4-6 are distinct from counts 1-3, in that there is no discernable factual or legal interconnection between them. She argues that counts 4-6 are separate delicts involving the Applicant alone and are in no way relevant to any issues in the drug counts. They can only be relevant to the character of the Applicant, and are highly prejudicial in her trial on the drug counts.
[17] The Applicant provided a videotaped statement to the police in which she made admissions in relation to the documents referenced in counts 4-6, explaining that she had the false identity documents in order to obtain cable services under a false name. In that interview the Applicant denied any involvement in the drug charges found in counts 1-3. The Applicant has advised that she is not challenging the admissibility of this statement.
[18] The Applicant contends that the factual underpinnings to counts 4-6 are only relevant to her character and will be highly prejudicial in her trial on counts 1-3, will interfere with her right to a fair trial under s. 7 of the Charter, and should therefore be severed from the current indictment and made the subject of a separate indictment.
[19] The Applicant argues that counts 1-3 should be severed from counts 4-6 because there is no factual or legal nexus between the counts. She contends that the context, motive, and defences of counts 4-6 differ from those of counts 1-3. She stated in her interview with the police that counts 4-6 arose from her desire to obtain cable services using a false name, and had nothing to do with the allegations in relation to the drug charges in counts 1-3. Furthermore, counts 4-6 arose from a search of her purse when the police arrested her when she arrived home, whereas counts 1-3 arose from the police effecting a controlled delivery of the package to her home. The counts do not allege a similar pattern of behaviour.
[20] Given the voluntary statements made in her interview with the police, the Applicant concedes that the Crown has a strong case on counts 4-6. She contends that if the application for severance is denied, her defence in counts 1-3 will be prejudiced because a jury may convict her on counts 1-3 based on propensity reasoning.
[21] The Applicant indicates that she wishes to have the opportunity to testify on counts 1-3, but not on counts 4-6. If she testifies with respect to counts 1-3, she should not be cross-examined with respect to the false identity documents because these documents are unrelated to the drug charges and can only be relevant to her bad character and to suggest that she is a person whose evidence ought not to be believed.
[22] The Applicant further contends that to permit the drug counts to be tried together with the false identity documents counts would compromise her defence because it raises the spectre that the jury will take into account bad conduct per se in determining her guilt or innocence on the more serious drug charges. By trying all of the counts together on one indictment, the Crown will be able to introduce evidence of bad character that it would otherwise not be permitted to introduce: R. v. Davison (1975), 1974 CanLII 787 (ON CA), 6 O.R.(2d) 103.
[23] The Crown takes the position that the Applicant has not met her onus of establishing that the interests of justice require severance. The Crown argues that:
a) there is a strong factual nexus between the counts that favours a joint trial;
b) the efficiency and truth-seeking process of the proceeding weigh in favour of a joint trial;
c) the applicant’s assertion about testifying on counts 1-3 but not on counts 4-6 is illogical in the context of her videotaped statement; and
d) any potential prejudice can be remedied through a jury instruction, particularly given that the evidence is not overly complex.
[24] The Crown argues that the investigation cannot be separated neatly into different parts without “decontextualizing” the entire circumstances of the search and arrest of the Applicant at her home.
[25] In addition, the Crown asserts that the circumstances in this case do not provide an objective basis for the Applicant to testify on counts 1-3, but not on counts 4-6, given her videotaped confessions with regard to the latter. The Crown argues that given her confession “it is unrealistic that the Applicant will not testify to reduce the impact of the only logical inference to be drawn from the statement.”
[26] Finally, the Crown argues that it is not leading the evidence of counts 4-6 as bad character evidence, but as evidence of the counts on the Indictment in an attempt to prove all counts beyond a reasonable doubt. Any potential prejudice to the Applicant of improper propensity reasoning between the counts can be remedied by a firm instruction to the jury.
Analysis
[27] In R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, the Supreme Court of Canada set out the principles relating to the severance of counts in an indictment. The Court held, at para. 1, that the “Crown enjoys a large discretion in deciding to include more than one count in an indictment”, and that a trial judge has a broad discretion to sever under s. 591(3) of the Criminal Code where he or she is satisfied ‘‘the interests of justice so require.” The onus lies on the accused who seeks the severance to persuade the court on the balance of probabilities that the interests of justice so require.
[28] At paras. 16-17 of Last, the Court canvassed the overall considerations bearing upon the judge’s exercise of discretion, as well as the factors to be considered:
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.
Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed when deciding whether to sever or not. The 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. It is important to recall that the interests of justice often call for a joint trial. ...Severance can impair not only efficiency but the truth-seeking function of the trial.
[29] The Court, at para. 18, identified a non-exhaustive list of particular factors to be considered. These factors include:
• The 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.
See also: R. v. Jeanvenne, 2010 ONCA 706 at para. 29.
[30] All of the counts facing the Applicant have a strong temporal nexus in that the discovery of the false identity documents was made on the Applicant’s arrest for the drug charges, and the charges were all laid on the same day. The false identity documents were found in the Applicant’s purse with the Blackberry containing the text messages.
[31] While there is a strong temporal nexus, there is no evidence that that there is any other factual nexus between the drug charges and the false identity charges. For example, the package was addressed to the Applicant’s real name, not the name on the false identity documents. The name on the Blackberry that contained the text messages does not match the name on the false identity documents. The trier of fact would not need to know about the false identity documents in order to understand the drug charges. There are no similar facts that would connect the two sets of charges.
[32] There is no apparent legal nexus between the two sets of counts. They raise different legal issues and the elements of the two sets of offences have no common features. The Crown has not advanced any theory of its case that would connect the two sets of charges by anything other than date of discovery.
[33] The Applicant has identified a source of prejudice in trying the two sets of counts together. If she testifies, the jury may conclude that the Applicant is not a credible witness because she is in possession of false identity documents. Even if she does not testify, the jury may engage in prohibited propensity reasoning and conclude that the possession of such documents (which she has admitted) is indicative that she is the sort of person who would also traffic in prohibited drugs. In addition, the drug charges are much more serious than the false document charges.
[34] Even with a properly written jury instruction, there is a real risk of prejudice to the Applicant in trying the two sets of counts together.
[35] While some of the evidence may overlap, it is unlikely that multiple witnesses will be required to testify more than once. There is no overlap of complainants or expert witnesses. The only likely overlap will be some of the investigating officers. In addition, the co-accused is only involved in relation to counts 1-3. Accordingly, the benefits to the administration of justice in trying the two sets of counts together is minimal.
[36] In Last the Supreme Court confirmed that the accused’s intention to testify on some counts and not others must be objectively justified. The Court stated, at paras. 26-27:
[T]he trial judge must simply satisfy him- or herself that the circumstances objectively establish a rationale for testifying on some counts but not others. 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. The information could consist of the type of potential defences open to the accused or the nature of his testimony: Cross, at p. 421. However, the accused is not bound by his stated intention; he remains free to control his defence, as the case unfolds, in a manner he deems appropriate.
While an accused’s provisional intention with respect to testifying is certainly a consideration which should be given significant weight, it is but one factor to be balanced with all the others. An accused’s stated and objectively justifiable intention to testify on some but not all counts is not necessarily determinative of a severance application. It can be counterbalanced by other circumstances that the judge finds may prevent the accused from testifying, or be outweighed by factors that demonstrate that the interests of justice require a joint trial.
[37] The Crown argues that the circumstances in this case do not objectively establish a rational basis for the applicant to testify on counts 1-3 but not on counts 4-6 considering her videotaped statement. In my view there is substance to the Applicant’s testimonial intention. The Applicant may logically choose to testify with regard to counts 1-3 in order to advance the defence that she had no knowledge who sent the package and is an innocent dupe. In contrast, given her videotaped statement, the Applicant may logically decide that there is no advantage to her testifying with regard to counts 4-6. Accordingly, I accept that the Applicant’s provisional intention is objectively justifiable in this case.
Conclusion Re: Severance
[38] Based on these considerations and weighing all of the factors discussed above, I am satisfied that the Applicant has discharged her onus of demonstrating that interests of justice require the severance of counts 1-3 from counts 4-6, and the application for an Order severing counts 4, 5 and 6 form counts 1, 2 and 3 is allowed.
Application Re: Disclosure
[39] The second application is for an Order directing the respondent to disclose all information relating to “controlled deliveries” by “the Royal Canadian Mounted Police (RCMP) or their agents in Ontario” of packages containing fentanyl that arrived via British Columbia on or about October 18, 2016 sent by Digitalpartner Uniko from Shenxhenshi, Guangdong, China. This information would include the names and addresses of the intended recipients, the amounts of fentanyl involved and the state of any current prosecution against the recipients. The Applicant is supported by her co-accused on this application.
Position of the Parties
[40] The Applicant contends that the evidence of the three packages containing similar amounts of fentanyl, all sent at the same time and by the same exporter to addresses in Ontario, show similarities suggesting that the deliveries are connected or related to one another. While the extent of the connection is unknown by the Applicant, the information concerning the related deliveries is sought to investigate any possible connections. She limits her request to the four packages intercepted in Canada on the same day, and does not seek disclosure of information relating to packages that may have been intercepted on any other days. The Applicant takes the position that there is a reasonable possibility that this information may assist in the exercise of the Applicant’s right to make full answer and defence.
[41] The Crown argues that it has satisfied its Stinchcombe disclosure obligations by providing the material in its possession that is not clearly irrelevant to the applicant’s case, and the material sought on this application is irrelevant. The Crown contends that the application is based on speculation and is merely a fishing expedition. The other packages were destined for different locations in Ontario and were not addressed to the Applicant. The mere fact that they were sent by the same exporter in China does not make the information about the unrelated investigations relevant to the Applicant’s case.
[42] In the alternative, the Crown submits that the records sought are in fact third party records and the Applicant must comply with the procedure in O’Connor, which governs the disclosure of third party records.
Analysis
[43] The Crown’s disclosure obligation was recently reviewed by the Ontario Court of Appeal in R. v Jackson, 2015 ONCA 832. The Court reiterated the distinction between first party (Stinchcombe) disclosure and third party (O’Connor) production. The Court stated (at paras. 34-35):
Where the disclosure dispute relates to information in the possession or control of the prosecuting agency, the Stinchcombe regime applies and requires service of the application and supporting materials on the prosecutor.
Where the disclosure dispute concerns production of materials in the possession or control of a third party, O’Connor requires service of the application and supporting materials on the Crown, (where applicable) the person who is the subject of the records, the third party record-holder and anyone else statutorily entitled to notice. A subpoena duces tecum must be served on the record-holder: O’Connor, at paras. 135-36. The purpose of service on the record-holder is to provide the record-holder with notice and the opportunity to be heard.
[44] With regard to first party disclosure the Court stated (at paras. 79-80, citations omitted):
Under Stinchcombe, the Crown has a broad duty to disclose all relevant, non-privileged information in its possession or control to persons charged with criminal offences. Disclosure of this information allows the person charged to understand the case she or he has to meet and permits him or her to make full answer and defence to the charges…
For the purposes of first party or Stinchcombe disclosure, the term “the Crown” refers to the prosecuting Crown only, not to all Crown entities, federal and provincial. All other Crown entities, including the police, are third parties… Apart from the police duty to supply the prosecuting Crown with the fruits of the investigation, records in the hands of third parties, including the police and other Crown entities, are generally not subject to the Stinchcombe disclosure rules…
The assimilation of the police and Crown as a single entity for disclosure purposes is narrowly confined. Apart from the police duty to disclose to the Crown the fruits of the investigation, the two are unquestionably separate and independent entities, not only in fact but also in law. The police investigate. The Crown decides whether, what, whom and how to prosecute... Production of criminal investigation files involving third parties, at least as a general rule, falls to be determined on an O’Connor application. This is so at least in the absence of a nexus between the third party and subject investigation...
The Stinchcombe disclosure regime extends only to material relating to the accused’s case in the possession or control of the prosecuting Crown entity. This material is commonly described as the “fruits of the investigation”, that is to say, material gathered during the investigation of the offence with which the accused is charged… Relevant information includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence…
[45] With respect to third party production applications, the Court of Appeal stated (at paras. 83-85, citations omitted):
A separate disclosure/production scheme exists for records and information in the hands of third parties, strangers to the litigation… third parties are under no obligation and have no duty to assist the parties in litigation or to disclose information to them…
The third party scheme involves two steps or stages. It is initiated by service of a subpoena duces tecum on the third party record-holder, as well as a notice of application and supporting material on the record holder and prosecuting authority... The purpose of the subpoena duces tecum is to have the material requested brought to the trial judge who will determine whether and to what extent the material will be produced. The application sets out the grounds upon which production is sought. The supporting material seeks to establish the relevance of the material to an issue at trial including:
i. the unfolding of the narrative;
ii. the credibility of a witness;
iii. the reliability of other evidence; or
iv. the competence of a witness to testify
For the purposes of this third party production regime, a record-holder need not be a complete stranger to the litigation. Recall that Crown entities, other than the prosecuting Crown, are third parties under this regime... And this is so even though some records of the same entity may be subject to the first party disclosure scheme of Stinchcombe… (Emphasis added).
[46] I agree with the Crown that, based on the information provided to me on this application, the records sought are third party records that do not fall under the parameters of first party disclosure. The law is clear that the RCMP and the provincial prosecutor are “unquestionably separate and independent entities” and, therefore, “the production of criminal investigation files involving third parties…usually falls to be determined in the context of an O’Connor application”: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 25. See also R. v. Quesnelle, [2014] 2 SCR 390, 2014 SCC 46, at para. 11:
For purposes of this “first party” disclosure, “the Crown” does not refer to all Crown entities, federal and provincial: “the Crown” is the prosecuting Crown. All other Crown entities, including police, are “third parties”. With the exception of the police duty to supply the Crown with the fruits of the investigation, records in the hands of third parties, including other Crown entities, are generally not subject to the Stinchcombe disclosure rules.
[47] In R. v. Pompey, 2018 ONSC 1003, Nakatsuru J. summarized the law relating to third party investigations as follows, at para. 6:
First of all, McNeil holds that the fruits of the investigation normally falls under the Crown disclosure obligation. Other police investigations regarding third parties do not fall under the category of the “fruits of the investigation”. Thus, generally speaking, such fall under the production of third-party records regime. investigative files such as the one the applicant seeks would normally fall under the production of third-party records regime.
[48] In Pompey, the accused was charged with the attempted murder of the complainant, Ms. Walker, in June 2016. The accused sought disclosure of a police investigation regarding a charge of assault with a weapon that allegedly happened the year before. In that case, Mr. Pompey was the complainant and Ms. Walker the accused. Nakatsuru J. found that the applicant was entitled to the investigative file of a third party investigation because of the close relationship of the two cases (the same two parties were involved in both investigations) and the obvious relevance of the other investigation to issues such as provocation and self-defence. The Court found (at para. 13): “Based upon the record, this is not a completely speculative theory. Even on the Crown synopsis, it is alleged that Ms. Walker bit the applicant.”
[49] In our case the other two controlled deliveries relate to two separate investigations, and the records of those other two investigations are not contained in the investigative file in the Applicant’s case. While the drugs were mailed from the same address in China, the investigations are otherwise unrelated. The fact that the other packages were intercepted on the same day is not sufficient to make them first party disclosure. Indeed, if there were a connection between the various deliveries, there would be no logical reason to limit the disclosure to packages intercepted on the same day. The same inquiries might be made of all packages coming to Canada from the same exporter. There is no evidence or reason to suspect that there is any relationship between the applicant and the other destinations or recipients. The applicant acknowledges that at this point her interest in the other investigations is purely speculative.
[50] Even if the other two deliveries were conducted by the RCMP they do not qualify as first party disclosure because the other two deliveries do not relate to the investigation of the two accused in this case.
Conclusion Re: Disclosure
[51] The Applicant has improperly framed the application as a first party disclosure application, and has not complied with the proper procedure for a third party production application pursuant to O’Connor. Accordingly, the application for disclosure of all information relating to “controlled deliveries” by “the Royal Canadian Mounted Police (RCMP) or their agents in Ontario” of packages containing fentanyl that arrived via British Columbia on or about October 18, 2016 sent by Digitalpartner Uniko from Shenxhenshi, Guangdong, China, is dismissed, without prejudice to the applicant bringing a third party production order.
Justice R.E. Charney
Released: May 25, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JACINDA ROSE SHENEEN HUDSON
Defendant/Applicant
REASONS FOR DECISION
Justice R.E. Charney
Released: May 25, 2018