Court File and Parties

COURT FILE NO.: 22/16 DATE: 2018/08/08 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent Fraser Kelly, for Crown

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Stephen Jurkus Applicant Patrick Ducharme, for the Applicant Stephen Jurkus

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Leslie Lonsbary Ron Ellis, for the Defendant Leslie Lonsbary

HEARD: July 26, 2018 George J.

Background

Charges & Application

[1] The Applicant and Leslie Lonsbary (Lonsbary) are jointly charged with failing to provide the necessaries of life, contrary to s. 215(2)(b) of the Criminal Code of Canada. He seeks a severance from Lonsbary pursuant to s. 591(3). Their joint jury trial is scheduled to begin in January 2019.

Facts

[2] On October 31, 2013, at the Elgin Middlesex Detention Center (EMDC), inmate Anthony George killed inmate Adam Kargus. Mr. George was charged and ultimately pleaded guilty to second degree murder. At the time, the Applicant was an operational manager. Lonsbary was a correctional officer. It is alleged that the Applicant failed to act on information provided to him by another officer, including that Mr. George had been drinking alcoholic “brew” prior to his attack of Mr. Kargus. It is alleged that Lonsbary did not properly perform the mandated routine upon taking control of Mr. George and Mr. Kargus’s range, and that he failed to adequately monitor the inmates pursuant to EMDC’s standard operating procedures.

[3] There was initially a third accused, correctional officer Greg Langford, however charges against him were withdrawn on May 6, 2015. He testified on behalf of the Crown at the preliminary hearing.

[4] Much has happened since. After the committal to stand trial there were several appearances in the Superior Court and ultimately the scheduling of a 3-week jury trial to begin May 8, 2017. This did not proceed as on February 13, 2017 Mitchell J. stayed the charge against both accused finding that their rights under s. 11(b) of the Charter of Rights and Freedoms had been violated.

[5] On May 28, 2018 the Court of Appeal for Ontario granted the Crown’s appeal, lifted the stay, and remitted the matter back for trial.

[6] I pause here to note that the Applicant did not seek a severance before the initial joint trial was scheduled, which was fixed in the assignment court on August 9, 2016.

Parties' Positions

Applicant

[7] The Applicant advances the following grounds in support of severance. He contends that:

• A joint trial against him and Lonsbary would result in an injustice;
• The allegations against each are not the same and do not arise from the same transaction;
• They did not act in concert;
• He and Lonsbary held different positions at EMDC – he an operational manager, and Lonsbary a correctional officer;
• Their respective roles and responsibilities were different, and that on the night in question they did not interact with each other;
• The conduct forming the basis of the charge against him is separate and distinct from Lonsbary’s alleged conduct, alleviating any risk of inconsistent verdicts;
• The evidence against Lonsbary is extensive - including video surveillance and evidence to support an allegation he did not properly use a recording device during his rounds – which has nothing to do with the Applicant and that, while inadmissible against him, there is a significant risk that the jury will nonetheless draw adverse inferences;
• The evidence against him consists solely of a statement he provided to the police shortly after the incident;
• He has never wanted to proceed before a jury and has, to this point, been forced along because of Lonsbary’s election; and
• If severance is granted, he would elect to be tried by a Superior Court judge sitting alone which, he argues, would require far less time and could be accommodated much sooner than the already scheduled January 2019 trial date.

Crown

[8] The Crown opposes severance. It argues that the Court of Appeal, in its decision lifting the stay, has already clearly and definitively weighed in on the topic of severance commenting as follows at para. 68 of its decision (see R. v. Jurkus, 2018 ONCA 489):

Jurkus suggests that the complexity of the proceeding was within the Crown’s control, and that the accused should have been severed, allowing for a more streamlined proceeding against each. I disagree. There are a host of reasons why accused charged in relation to the same incident should be tried together, such as: conserving judicial and trial resources; avoiding inconsistent verdicts; and avoiding witnesses having to testify more than once…In this case, it was clearly in the interests of justice to proceed against the three accused together, even though, as acknowledged by the application judge, this added to the complexity of the matter.

[9] The Crown characterizes this as a rejection of the “severance to streamline” argument. It argues that any suggestion a severance necessarily means that an earlier date can be scheduled is purely speculative. Furthermore, the argument that, if severed, a trial against the Applicant alone will only last two to three days - which is what the Applicant contends assuming, it seems, that the only relevant evidence against him is his statement – is unrealistic given the elements of the offence charged and the Crown’s burden. That is, the Crown does not know what facts the Applicant stipulates and as such must plan on leading evidence about the circumstances surrounding Mr. Kargus’ death, his cause of death, Mr. George’s conduct, the actual risks created by what it says the Applicant did or did not do, and the standard by which that conduct (if it can be proven) is to be measured, which would necessarily include a presentation about staff duties and Ministry / EMDC procedures and protocols. It says there is no way his trial can be completed in two to three days.

[10] The Crown also takes issue with any suggestion the jury would be unable to independently assess the guilt of each accused separately, or be incapable of discerning, following a proper instruction, that some evidence is admissible against only of them or that it may have a limited use. In its view this reasoning runs contrary to the jurisprudence on juror capabilities.

[11] Its position is the Applicant has failed to prove, on a balance of probabilities, that severance is in the interests of justice. It argues that to accept the Applicant’s position would be to, in effect, accept that joinder principles apply only when co-accused agree in advance on their distinct roles in the alleged conduct. The Crown relies on the various policy reasons in support of joint trials when accused are charged with offences arising out of the same event or series of events, pointing out that - while it is not the Crown’s theory that the Applicant and Lonsbary worked in concert, or that they had anything to do with each other on the relevant date - the basis of the charge is that each man failed to act when they were duty bound to do so. In other words, each had an obligation to provide the necessaries of life for inmates under their charge, and these allegations are in relation to the same inmates, at the same institution, on the same date, which is a sufficient nexus to warrant a joint trial.

Cut-Throat Defence

[12] The Crown also raises the likelihood of a “cut-throat” defence. It pointed me to passages within the preliminary hearing transcript (primarily in counsel’s submissions on committal) that suggests at least one aspect of the Applicant’s defence is that the responsibility for prisoner safety lies with the front line correctional officers, which Lonsbary was. It further argues that it can be reasonably anticipated that at least one aspect of Lonsbary’s defence will be that he couldn’t have personally effected a transfer of either George or Kargus as inmates can only be moved from one unit to another by someone from management, which the Applicant was.

[13] The Applicant does not agree there is a potential for a cut-throat defence, his counsel asserting in argument on this application that he will not be leading at trial any evidence that would “adversely impact Mr. Lonsbary”, and that if Lonsbary were to attempt to lay blame at his client’s feet “he will lose” as the evidence will not support that position.

Law

Authority to Sever and Factors to Consider

[14] Section 591(3) of the Criminal Code provides that:

591(3). The court may, where it is satisfied that the interests of justice so require…

(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.

[15] Pursuant to s. 591(4) severance can be ordered at any point prior to or during the trial. The Applicant bears the burden of establishing that severance is in the interests of justice on a balance of probabilities. This exercise is essentially a balancing of competing interests.

[16] It is common ground that severance is exceptional, rarely ordered and that several policy reasons weigh against severance. In conducting this balancing, what factors am I to consider? In R. v. Last, 2009 SCC 45, [2009] 3 SCR 146 (SCC), the Supreme Court of Canada sets out a non-exhaustive list, including:

• General prejudice to the accused;
• Legal and factual nexus between the counts;
• Complexity of the evidence;
• Whether the accused intends to testify on one count but not another;
• The possibility of inconsistent verdicts;
• Desire to avoid a multiplicity of proceedings;
• Use of similar fact evidence at trial;
• Length of trial having regard to the evidence to be called;
• 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.

[17] Some of these are relevant, some not. I will address each applicable factor in turn.

Discussion

Time Estimates

[18] I will first address the impact of a severance on time estimates, as this directly impacts the right to be tried within a reasonable time as well as the length of trial – both factors I am required to consider. I agree with the Crown that it is not for the Applicant to say how long this trial will take. He can advise what witnesses he might call. His counsel can provide time estimates for cross-examination of the various witnesses who appear on the Crown’s witness list. But it is the Crown who will be called upon to first present its case and it alone has the onus of establishing each element of the offence charged beyond a reasonable doubt. Short of the Applicant providing a list of admissions and concessions that would alleviate the Crown’s need to prove certain facts or elements, I must defer to the Crown’s assessment of time.

[19] To be clear, even if the Applicant had attended with a list of concessions in hand that would not have necessarily led to severance. This is but one factor. I make this point to address the narrow issue of time estimates and whether in fact an earlier date could be accommodated. I am simply unable to conclude that the outcome of a severance would be to substantially reduce the Applicant’s trial time estimate, as he suggests it would.

Complexity

[20] The issue of complexity has already been litigated both before Mitchell J. on the stay application and at the Court of Appeal. Indeed, this was a crucial factor in the Court of Appeal’s assessment of delay. While it concluded that, for the Applicant, the time to trial was three weeks above the Jordan ceiling, it went on to find as follows:

13. As will be explained in these reasons, I conclude that the application judge erred by…(d) failing to take into account the complexity of the case.

14. I conclude that the resulting delay for Lonsbary is actually just below 30 months. I further conclude that, although the resulting delay for Jurkus rests three weeks above the ceiling, the complexity of the proceeding accounts for those three weeks…

[21] It commented further on complexity writing this at paras. 63 to 67:

63. The trial Crown took the position that the time exceeding the 30 months was justified by the complexity of the proceedings. He referred to the voluminous disclosure, large number of witnesses, and novel legal issues. The trial Crown maintained that the 87 days it took to receive a committal decision also reflected the complexity of the case.

64. The application judge rejected this position, finding, among other things, that the offence – failing to provide the necessaries of life – is “not novel or rarely used section of the Code”. Even so, she observed that there was a certain novelty arising from the use of the provision “to support an offence arising from the alleged criminal conduct of correctional officers during the course of their employment duties”.

65. She also noted that the Crown had elected to proceed against the accused jointly and was obligated to ensure that this did not compromise their right to trial in a reasonable time. She acknowledged that additional time had been required because of the joint prosecution:

…the additional time incurred to conduct judicial pretrials and resolution meetings with Mr. Langford in an effort to resolve the issues with Mr. Langford in exchange for his evidence to bolster the case against the applicants added to the delay.

66. The appellant appears to suggest in this court that the case does not qualify as an exceptionally complex one. Even so, the jurisprudence is clear that complexity can arise from cases involving more than one accused: “proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case”…

67. I conclude that this was a complex case, at least complex enough to justify an additional three weeks above the ceiling. Among other things, the complexity of the matter is revealed by the length of the closing submissions and the fact that committal was so hotly contested. Moreover, the simple coordination of dates among the calendars of three defence counsel, the Crown and court added a layer of complexity to the proceedings. This is borne out by the record, including the counsel correspondence going back and forth. This is the type of inherent delay, arising in multiple accused trials, that was described as “a fact of life”…

[22] I reproduced earlier para. 68 of the appeal decision which directly addressed the issue of severance.

[23] There are three important points to make. First, the Court of Appeal had an extensive record before it and heard submissions from the Applicant specifically on severance and complexity. Second, with that fulsome record and when confronted directly with the issue of severance, it chose to weigh in, effectively concluding it was not appropriate. Third, the court is clearly addressing complexity and how that issue touches the Applicant, concluding that, for him specifically, there had not been an unreasonable delay because of the matter’s “complexity”. In my view this is a rejection of the argument that the Crown should have taken some alternate course to simplify the Applicant’s case.

Prejudice

[24] I turn now to the issue of prejudice, and whether a joint trial would be unfair to the Applicant. There is no doubt that, from the Applicant’s perspective, a judge alone trial that could occur before January 2019 is preferable. This is understandable. Also, if indeed a judge alone trial proceeded somewhat quicker than if it were before a jury (and this is consistent with my experience), it would presumably reduce his legal costs. This might very well be, for a host of other reasons, the process most favourable to the Applicant.

[25] I am mindful of and guided by the Supreme Court’s comments in R. v. Mills, [1999] 3 S.C.R. 668. It wrote that “fairness of the trial process must be made from the point of view of fairness in the eyes of the community and the complainant and not just the accused”. Furthermore, I agree with the Crown’s argument that an accused does not have the constitutional right to the most perfect trial or to the procedures most favourable to him. The Applicant sincerely views a judge alone trial, that would exclude Lonsbary, as better and more favourable to him, and I accept that he might be right. But there is no basis upon which to conclude that a joint trial in January 2019 would be unfair to him.

[26] I accept that, in a perfect world, evidence presented at a joint trial would be relevant and admissible for all accused and that a judge sitting alone may be better able to disabuse him or herself of evidence they should not have heard or be better equipped to compartmentalize the evidence and recognize that some may be relevant to one accused and not another. But the mere fact that some of the evidence presented will not touch upon or be relevant to the Applicant does not in and of itself render a joint trial unfair.

[27] It is not unusual that in a joint trial a jury would hear some evidence solely related to one accused. However, I am to assume that the jury will be fair, impartial and capable of following my instruction on proper uses. In the Supreme Court’s majority decision in R. v. Find, 2001 SCC 32, it writes this at para. 107:

The safeguards of the trial process and the instructions of the trial judge are designed to replace emotional reactions with rational, dispassionate assessment. Our long experience in the context of the trial of other serious offences suggests that our faith in this cleansing process is not misplaced. The presumption of innocence, the oath or affirmation, the diffusive effects of collective deliberation, the requirement of jury unanimity, specific directions from the trial judge and counsel, a regime of evidentiary and statutory protections, the adversarial nature of the proceedings and their general solemnity, and numerous other precautions both subtle and manifest – all collaborate to keep the jury on the path to an impartial verdict despite offence-based prejudice.

Legal and Factual Nexus, Possibility of Inconsistent Verdicts, and Antagonistic Defence

[28] While the Applicant and Lonsbary did not act in concert, and while their potential criminal liability lies in separate conduct, much of the evidence at trial will be the same. Not entirely, but a lot of it. In other words, while there is no chance of inconsistent verdicts, a legal and factual nexus exists which favours a joint trial and weighs against severance.

[29] The allegations against these accused do arise from the same series of events, in the sense that what we are talking about is a beating by the same man on the same victim, on the same date and in the same institution. This all revolves around the same event. It matters not that each accused did (or failed to do) different things. This is the same transaction and there is, despite the differences ably pointed out by Applicant counsel, considerable evidentiary overlap.

[30] I would add that, even with counsel’s assurances, there is a real possibility of antagonistic posturing as between the Applicant and Lonsbary. I understand the objection to the use of the term ‘cut-throat’, as it does conjure up something that might not be at play here, but regardless of how subtle the attack might be the fact this risk exists at all weighs against severance.

Conclusion

[31] I find that the Applicant has not established, on a balance of probabilities, that the interests of justice requires a severance. The application is dismissed.

“Justice J. C. George” Justice J. C. George

Released: August 8, 2018