Court File and Parties

COURT FILE NO.: CR-17-70000650 DATE: 20180823

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Mihael Cole and Beverly Richards, for the Crown Respondent

- and -

WILLIAM CUMMINS and MATTHEW MOREIRA (and PATRICK SMITH) Simon King, for William Cummins Jessica Zita and John Fennel, for Matthew Moreira Chris Morris, for Patrick Smith Defendants/Applicants

Heard at Toronto: July 12, 2018

Michael G. Quigley J.

Reasons for Ruling

Re: Severance

[1] William Cummins, Matthew Moreira and Patrick Smith are charged with first-degree murder and robbery. The indictment alleges that they murdered Zachary (Zach Noureddine on December 30, 2015, and that they committed assault and robbery against Mitchell Conery on the same date in the same location. They now face a joint trial for this alleged murder and robbery. It is scheduled to proceed before Forestell J. with a jury on September 12, 2018.

[2] On this application, Messrs. Cummins and Moreira apply for severance from Mr. Smith on this trial. I am not the presiding judge on this trial, who would normally hear this application, but all counsel have, nevertheless, agreed to be bound by this ruling.

[3] Having considered the submissions of counsel and the materials filed, the application of Messrs. Moreira and Cummins to be severed from Mr. Smith is dismissed. As these reasons will show, in my view this is a case that cries out for a joint trial to permit a single jury to determine the culpability of each of these accused. Each of them was involved in some way in the brutal beating and kicking of the deceased, or his friend, Mitchell Conery, that took place on Lola Avenue, just off Yonge Street in central Toronto, on December 30, 2015. The interests of justice will be best served if a single jury determines whether each of the three accused is culpable in the death of Zach Noureddine, and if one or more of them were, the extent of their culpability.

[4] Given its uncertain reliability and admissibility, the statement provided by Mr. Smith to police cannot serve as an adequate reason to order severance of these three accused, with the serious risk of inconsistent verdicts. Each of them seemingly acted together in the altercation that resulted in Zach Noureddine’s death, and it must be the task of a single jury to determine the responsibility of each of them for what tragically happened that evening. The injustice in this case would result if the accused were severed, not the reverse.

Background Summary

[5] In December 2015, the deceased, Zach Noureddine, and Mitchell Conery both worked at a third-party direct marketing company. They typically worked from noon until 9:00 PM. Mr. Noureddine was the top salesperson and he acted as a mentor to Mr. Conery, who had just joined the company in November, the month before.

[6] On December 29, 2015, they decided to have a drink after work with their manager, Jeffrey Moores and his girlfriend Ashley Lee. They met at the Little Sister Indonesian Food Bar located at 2031 Yonge St. in the City of Toronto. They arrived by car between 10:00 and 11:00 PM.

[7] Mr. Noureddine had a habit of dressing well. On the night in question he was wearing a suit, a peacoat jacket with the collar turned up, a $5,000 to $10,000 Rolex watch, and an expensive Hermes belt. Mr. Conery was also wearing a suit.

[8] After having drinks together, the four friends left the restaurant just before midnight. Mr. Moores and Ms. Lee walked north to their residence, while Mr. Noureddine and Mr. Conery walked west across Yonge Street to their car, which was parked on the north side of Lola Road, just past an alley but just before the train tracks. They were both smoking.

[9] As Mr. Noureddine and Mr. Conery were walking to their car, the three accused emerged from an alley on Lola Road behind the wedding chapel. The three accused were all significantly larger than both Mr. Noureddine and Mr. Conery. None of the parties were known to each other.

[10] Mr. Conery testified at the preliminary hearing that he thought nothing of the three men but that as they were walking, the men "sort of cut them off". One of the applicants punched Mr. Conery in the side of the head knocking the cigarette out of his mouth and the glasses off of his face. Mr. Conery immediately dropped to the ground in the middle of the street.

[11] Although his glasses were knocked off, Mr. Conery stated that he could still make out figures, but not detail – "blurry, you see figures and stuff like that from a distance but not acute detail or anything like that… I can't see finer details but of course the size of --- the proximity of us to the group of males that had approached made it quite easy, I can see that, the figures, the bodies moving." [1]

[12] He testified that he saw a second male punch Mr. Noureddine in the head. He was "just at the sidewalk so about… The width of the car in separation from [Conery]" [2] the second male then came over to Mr. Conery (who was covering his head to protect himself) and stomped on him. That individual was wearing khaki coloured timberland style boots.

[13] Mr. Conery then looked over and saw Mr. Noureddine being restrained. He was "… basically on his knees and then these guys were just giving him shots. Kicking him, punching him, like giving him shots." [3] They "kind of ha[d] Zach wrapped up a bit" [4] with each male holding one of his arms. They were punching and kicking him in the head and face and the first male was saying "[T]his is why you don't talk shit." Mr. Conery testified that the assailants were "going way overboard” [5] in the force of the blows they were inflicting on Mr. Noureddine, “like they're almost trying to hurt the guy". [6] Mr. Conery testified that they kicked Mr. Noureddine five to ten times, if not more.

[14] The third male then came over to Mr. Conery. He placed his foot on top of him to prevent him from rising and demanded that he give them his wallet. In cross-examination, Mr. Conery described this action as "pinning me to get my attention." [7] The third male then stated "[G]ive me your wallet and it's all over". Mr. Conery responded that he did not carry a wallet. Meanwhile, the assault on Mr. Noureddine continued. Mr. Noureddine was asking the males to stop. Mr. Conery said "… he was looking to defend himself but had no means other than to ask,…it was almost a plea for help and asking that they just have some humanity and stop." [8]

[15] At this point, two bystanders came running over from the St. Louis Grill across the street to assist, and the three assailants "took off" back down the alleyway.

[16] Mr. Conery observed the deceased get to his feet, step towards him and then collapse. Mr. Conery rushed over to him, noticed that "his eyes were puffed", checked his pulse and tried to get someone to call 911. He observed someone calling 911 and then observed that Mr. Noureddine was gasping for air. He tried to comfort him until the police arrived 1 to 2 minutes later. At that point police took over the resuscitation attempt and Mr. Conery called Mr. Moores to tell him what had happened.

[17] Mr. Conery specifically noticed that although Mr. Noureddine was still wearing his Rolex watch, the clasp on the watch was open. Mr. Conery later received medical treatment. He suffered a small laceration behind the ear and was checked but cleared for a concussion.

[18] From the police end of the matter, the Toronto Police Service started to receive 911 calls about this fight at 12:16 AM on Wednesday, December 30, 2015. Toronto Police Communications records show that they received multiple 911 calls. They were told the altercation happened near Yonge Street and Lola Road, north of Davisville and south of Eglinton Avenue. Responding police, and Toronto Emergency Paramedics, arrived on scene within minutes.

[19] They immediately located a male in serious medical distress lying on the ground. That male victim was Zachary Noureddine. He was transported to Sunnybrook Hospital where his condition was assessed as critical and the emergency trauma team continued with lifesaving efforts. It was ascertained that Mr. Noureddine’s condition was the result of a severe brain bleed. Notwithstanding the efforts of the Sunnybrook emergency trauma team, Mr. Noureddine died sometime later as a result of his injuries.

[20] A postmortem examination conducted by Dr. Cunningham determined that the cause of death was "blunt impact head and neck trauma". Mr. Noureddine sustained bleeding under the brain as a result of the fracture on the right side of the head. The fracture damaged an artery that resulted in blood flow into his brain, which was the cause of his death, similar to an aneurism.

[21] Through their investigation, Toronto police determined that Mr. Noureddine was with a second male, Mr. Conery, who had also been injured and who was with Mr. Noureddine when the assault took place. As they walked back to their vehicle after having a drink at a bar with friends, they were approached by three men. An assault ensued.

[22] Through extensive video surveillance footage, police identified both of these applicants, Messrs. Moreira and Cummins, and their co-accused, Mr. Smith, as the assailants. Moreira and Cummins were charged on April 19, 2016.

[23] During the course of the investigation, Moreira and Cummins’ co-accused, Patrick Smith, was engaged by undercover officers in a “Mr. Big” sting operation. During their recorded discussions, Mr. Smith described the assault on Mr. Noureddine and Mr. Conery in detail, including the involvement of both of these applicants. Mr. Smith also provided the undercover police with a demonstration of the assault. That demonstration was captured on video by investigators.

[24] In his statement to undercover police officers on April 12, 2016, Mr. Smith stated the following:

(i) that the fight began when Mr. Smith saw what he said was Cummins “getting jumped” by two guys, and that's when Mr. Smith "ran over". Later in his statement, Mr. Smith says he joined in when he saw Mr. Cummins "smoke the one guy"; [9]

(ii) that "BK" (which refers to the co-accused, Moreira) "was not involved in any of this"; [10]

(iii) further, that the applicant "wasn't even in on it. He was there, but he never made any kind of moves", and that the assault on the other two men involved only Messrs. Smith and Cummins; [11]

(iv) that when asked what Mr. Moreira was doing during this fight, Mr. Smith answered that he was "pretty much on the side"; [12]

(v) that Mr. Noureddine was still moving when Mr. Smith left, which Mr. Smith said caused him to "think nothing” of the fight; [13]

(vi) Mr. Smith discussed the fight in detail, and is clear in his retelling that it was him and Mr. Cummins against the other two men;

(vii) Mr. Smith was not aware that anyone died until he heard about it on the news; [14]

(viii) that Mr. Smith advised that he "smoked buddy that died" and "kicked him in the face"; [15]

(ix) that Messrs. Smith and Cummins were hanging out alone prior to the incident, and that Mr. Moreira met them later at the St. Louis restaurant; [16] and finally

(x) that everything that happened that night started because "Will [Cummins] has a hot head.” [17]

Legal Principles

[25] Our law presumes that accused persons who are alleged to have acted together in the commission of an offence are to be tried together:

The general rule is that prima facie, persons jointly indicted should be jointly tried where the case for the Crown is that the accused acted in concert: Reg. v. Weir (No. 4), 3 C.C.C. 351 at 352; Reg. v. Grondkowski and Malinowski 31 Cr. App. R. 116 at 119. [18]

[26] Subsection 591(3) of the Criminal Code governs motions for severance. Paragraph 591(3)(b) permits severance of co-accused where the court is satisfied that “it is in the interests of justice to do so.”

[27] As Justice Doherty noted in R. v. Savoury [19], the interests of justice “encompass those of the accused, the co-accused and the community as represented by the prosecution.”

[28] In determining whether the interests of justice require the severance of co-accused, I am required to start from the general rule and presumption that individuals in joint criminal ventures are to be tried together. Separate trials in the case of multiple co-accused involved in a single occurrence will be the exception, not the rule. Severance will only be granted in exceptional cases “where a joint trial will work an injustice to the accused.” [20]

[29] As such, as the parties seeking severance, the burden on this application is on Moreira and Cummins to establish, on a balance of probabilities, that severance from their co-accused, Mr. Smith, is in the interests of justice.

[30] There is a long and uniform stream of authority in this country in favour of joint trials. Writing for the Supreme Court in R. v. Crawford [21], Justice Sopinka articulated the underlying policy reasons for this authority. Separate trials not only involve extra cost and delay, but also create a risk of inconsistent verdicts. In addition, as Pardu J., now J.A., succinctly stated in R. v. Valentine [22]:

The truth about the events is more likely to emerge if all are tried together, which is the preferable course, unless there is some prejudice which is so significant as to overcome the presumption.

[31] Policy dictates that the “respective rights of the co-accused must be resolved on the basis that the trial will be a joint trial.” The trial or preliminary motions judge will only sever where the resolution of the respective rights of the co-accused results in an injustice to one of them.

[32] Further, Crawford establishes that a conflict between a co-accused’s Charter protected rights will not override the presumption against severing joint trials, but for exceptional cases. In this case, Crown counsel argues that the respective rights of Cummins and Moreira can be resolved in a joint trial without an injustice to either of them. In his submission, there are no exceptional circumstances present that would require the exercise of judicial discretion in favour of severance. The circumstances here are claimed to militate against severance because it would impede the truth seeking process and result in the duplication of large amounts of evidence.

[33] Even in circumstances where severance is not granted, however, the case law recognizes that there may be need for carefully crafted limiting instructions from the trial judge. Where such instructions can properly be prepared and will be understandable by the jury, there is no need to resort to the exceptional remedy of severance.

[34] In considering an application for severance, I am required to turn my mind to our long-standing confidence in the ability of juries to follow and apply difficult instructions. The Supreme Court of Canada has stated that the best way to balance rights and alleviate risks that the jury will misuse evidence is to ensure that jurors have all of the information they need along with a clear direction as to how they may use that information.

[35] In R. v. Corbett [23], the Supreme Court of Canada emphasized that it is inappropriate and legally mistaken to start an analysis from a presumption that a jury is not going to obey the instructions of the trial judge relative to the probative value of any particular piece of evidence. Indeed, at paras. 35 and 38 of Corbett, Dickson J., later C.J.C., admonished that as the motions judge, I must start with the exact opposite presumption:

Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. It is preferable to trust the good sense of the jury and to give the jury all relevant information, so long as it is accompanied by a clear instruction in law from the trial judge regarding the extent of its probative value.

In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law. We should regard with grave suspicion arguments, which assert that depriving the jury of all relevant information is preferable to giving them everything, with a careful explanation as to any limitations on the use to which they may put that information.

Analysis

[36] The grounds for severance are essentially the same for each of Mr. Moreira and Mr. Cummins, as applicants. Their request for severance is totally driven by and focused upon Mr. Smith’s statement to the police.

[37] Mr. Moreira rests his application for severance on two grounds: (i) that “the cumulative effect of Patrick Smith’s statements to the undercover officers, if admissible against Mr. Moreira, could affect the jury’s verdict” and (ii) “Mr. Smith’s evidence would ensure that the applicant, Moreira, would be able to make full answer and defence, as well that he receives a fair trial.”

[38] Mr. Cummins’s position is largely the same. He notes that in Patrick Smith’s April 12, 2016, statement to undercover officers, he accepted personal responsibility for the death of Mr. Noureddine, but also made further statements with respect to “the culpability” and character of Cummins and the co-accused Moreira. As such, Mr. Cummins seeks severance to permit him the opportunity to call Mr. Smith as a witness in order to make full answer and defence, given that the Crown has advised of its intention to call Mr. Smith’s statement into evidence at trial, but only in respect of Mr. Smith.

[39] Again in Corbett, Dickson J. noted that on the trial of co-accused persons, the confession of one is admissible only against that accused, and that the jury must be instructed that such evidence cannot be taken into account in determining the guilt of the co-accused. The decisions in Olah and R. v. Suzack [24] establish that this is the preferable approach when balancing the rights of co-accused where one party has made a statement and the other has not. However, as counsel for Mr. Moreira observed in argument, R. v. Parberry [25] establishes that the rule remains the same even if the evidence of one accused is exculpatory of another.

[40] The job of the applications judge, and the factors and criteria that need to be focused on, in considering whether severance should be granted in any particular case are set out succinctly in paras. 16-18 of R. v. Last [26] as follows:

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.

17 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. Litchfield, where the Crown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example. Severance can impair not only efficiency but the truth-seeking function of the trial.

18 The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a particular case, avoiding an injustice. Factors courts rightly use 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: R. v. E. (L.) (1994), 94 C.C.C. (3d) 228 (Ont. C.A.), at p. 238; R. v. Cross (1996), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419; R. v. C. (D.A.) (1996), 106 C.C.C. (3d) 28 (B.C.C.A.), at para. 9, aff'd 1997 SCC 397, [1997] 1 S.C.R. 8 (S.C.C.).

[41] In their arguments on this application, counsel were insistent that there would be no antagonistic or so called “cut-throat” defences raised here. Indeed, counsel for Cummins stated that his client will plead guilty to manslaughter at the beginning of the trial, but that is not an answer to the question whether there will be antagonistic defences raised by the defendants, as discussed further below.

[42] The submissions of counsel for Cummins and Moreira seemed predicated on the notion that Mr. Smith’s evidence would exactly mirror and confirm what he said to the police in his extensive statement, but plainly, that will not be the case. Mr. Morris, counsel for Mr. Smith, has clearly stated his position that Mr. Smith specifically opposes the admissibility of that statement, so any expectation that Mr. Smith is going to take responsibility for inflicting the blow that led to Mr. Noureddine’s death is fanciful in the extreme and lacks an air of reality.

[43] The presence of antagonistic defences causes the proposed severance to be problematic, even from the perspective of Mr. Smith alone. No one, including these applicants, knows what Mr. Smith would testify to were he to be severed and tried on his own. His statement is not admissible against him at his own trial, so to avoid being cross-examined on that statement, Mr. Smith may well not call any evidence, or his counsel will call evidence from Moreira and Cummins and suggest that he was not the person who was most aggressive and who caused Mr. Noureddine’s death. Mr. Smith will be buoyed in that assertion by the fact that he is the only one of the three who has no criminal record, and a claim that Cummins and Moreira, who do have records for violence, were the responsible parties.

[44] A second problem with severance is the Preliminary Inquiry evidence of Mr. Conery about who stepped on him. He said it was the shortest person, and certainly Mr. Moreira is the shortest but not by much. However, Mr. Conery was also very clear that the person who inflicted the most damage was wearing boots. The videos of 100 Merton show not only that Mr. Moreira is the only one of the three who is wearing the boots, but that he actually goes into an apartment after the assault took place and came out wearing running shoes. Those same boots were found in Moreira’s girlfriend’s apartment when he was arrested for the robbery in March. This renders it more likely that Mr. Smith would testify that it was not he who inflicted the damage, but the person in the boots, and he would be supported in that testimony by the video evidence.

[45] The third point that shows that antagonistic defences are likely to arise amongst the co-accused is plainly raised in the submissions of Mr. King, with respect to ascertaining “who did what” while the beating was in progress that resulted in Mr. Noureddine’s death. At least one of the Crown witnesses, Mr. Bruton is emphatic that all three accused were active engaged participants and inflicted damage on the two victims. Mr. Bruton had a direct and unobstructed line of observation of the melee from only a short distance away. Mr. Conery testified at the Preliminary Inquiry that there were two assailants, but that the third came up to him on the ground, while he was trying to cover himself up for protection, and stepped on him. Mr. Conery got punched in the face and his glasses were knocked off, so he admitted he could only see blurry figures. With his vision partially impaired by the actions of the assailants, it is not surprising that he could not say that he saw a third person.

[46] Two other external civilian witnesses also were observing the altercation and they will be testifying for the Crown. While credible, Mr. Boake’s evidence is not as reliable as that of Mr. Bruton, to the extent he acknowledged that he only started looking seriously at the assault late, after it was well underway, “only when it started to get really serious.” The third direct Crown witness, Ms. Mihic, said that she heard some yelling, turned, saw two assailants, and immediately went into the St. Louis Grill to call the police.

[47] The person who was in the best position to see how many people engaged the deceased and Mr. Conery is plainly Mr. Bruton. He testified at the Preliminary Inquiry that he distinctly saw three assailants. Moreover, it is plain from the photographic evidence that it was a very short distance from where he was standing outside the St. Louis Grill to the location where the altercation was taking place, virtually right in front of him. It was at most the width of a typical Toronto two-lane residential street. No more than twenty-five to thirty feet away.

[48] Nevertheless, defence counsel put high reliance on Mr. Smith’s statement to police. It may well be true, as defence counsel contends, that Mr. Smith may not have been looking at the two other assailants during the entire scrum, since it is claimed he would have been focusing on continuously kicking Mr. Noureddine, but this alone cannot be grounds to grant severance. Crown counsel asserts and provided me with examples of innumerable inconsistencies in Mr. Smith’s statement, on which the Crown hopes to have the opportunity to cross-examine Mr. Smith. But apart from whether that happens at trial, those inconsistencies weaken the claim that Mr. Smith’s statement to the police is going to resolve with finality, who did what to whom, and when.

[49] Mr. Smith told the police the three of them “were jumped” by the victims, but all the evidence of the other civilian witnesses contradicts that assertion. Mr. Smith acknowledges at one point that he was the aggressor, but then says he was not and points the finger at Mr. Cummins. There are other problems in his statement about who had consumed cocaine prior to leaving the apartment. In his statement, he refers to all of them. These problems with the statements he made potentially implicate Mr. Smith. Plainly, that is why his counsel opposes the admissibility of that statement.

[50] All of this, and more, casts into serious doubt, any realistic probability that each of these three defendants will not raise an antagonistic defence against their co-accused. It is plain that Cummins and Moreira are going to blame Mr. Smith, and assert that he alone delivered the death blow, but in my view it is equally obvious, if severance were granted, that Mr. Smith is going to blame the two parties who would not be present at his trial, that is, the two with the criminal records for violence, Messrs. Moreira and Cummins.

[51] Another factor requiring consideration, is that as in any case where it is sought, severance would result in a multiplicity of proceedings, requiring the same witnesses to testify twice more (having already testified at the Preliminary Inquiry) with regard to this horrific incident where a human being was beaten to death. This will inevitably extend and complicate the proceedings. As separate transcripts of evidence are prepared for a second trial of the severed accused, that will also provide unnecessary opportunity for cross-examination, not only on the witnesses statements given to the police and their evidence at the preliminary hearing, but severance will add to that yet a third version of the evidence, as grist for the cross-examination mill.

[52] The prospect of inconsistent verdicts is always a very significant concern where severance is granted. Inconsistent verdicts in this case, not only legally, but also factually, are more probable if severance is granted. This is especially so where, as here, it seems plain that the accused will each blame each other for Mr. Noureddine’s death.

[53] This points to the need in this case to determine in one forum what the role was, factually and legally, of each of these accused in the death of Mr. Noureddine and the injuries sustained by his friend, Mitchell Conery. Different legal findings could result based on different arguments that could be made at two different trials, resulting in discordant conclusions of fact or law. However, having a joint trial removes the risk that different trial judges will reach different conclusions on common legal issues.

[54] This is not hypothetical. The related cases of R. v. Casanay [27] and R. v. C.E.S. [28] demonstrate the problem. In those cases, two trials were required because one accused was a youth and one an adult. Certain hearsay statements were admitted in one case resulting in the conviction of the youth, C.E.S, but the hearsay statements were ruled inadmissible in the other case, resulting in the acquittal of the adult accused, Casanay. The Manitoba Court of Appeal determined that the trial judge erred in excluding the statements at Casanay’s trial and ordered a new trial for him, but upheld the conviction of the youth. Thus, in one trial arising out of the same transactions or events, the accused was acquitted and in the other, the accused was convicted.

[55] The inconvenience, anxiety, and emotional trauma caused to witnesses who would be required to testify a third time if severance is granted is also an important consideration. Of equal concern, there is in fact the special anxiety and trauma visited upon the remaining victim, and the parents and family of the victim who was killed. Notwithstanding the view of some unnamed, but excessively aggressive defence counsel, happily a minority, that it is only the interests of the accused that matter on a murder trial, that is a warped perspective that reflects fundamental misunderstanding of the trial process and the rights of all parties, not to mention the role of the trial judge.

[56] I agree with Crown counsel that this issue warrants special attention in this case because for the proceedings to date, Mr. Noureddine’s family came from Ottawa, and were present every day of the preliminary inquiry. They have asked the Crown to convey their strong wish that no severance be granted. It is now three years since their son died in December, 2015. They are frightened and traumatized that the granting of severance in this case would cause the final resolution to be pushed out at least another year, from 2018 until well into 2019. Of course, I recognize that this is not a determinative consideration, but in evaluating whether the interests of justice to all involved persons require or weigh against the granting of severance, certainly it is a relevant factor.

[57] One other factor deserves comment. That is the fact that at least two of the three co-accused have agreed to waive their section 11(b) Charter rights. However, section 11(b) does not focus solely on the rights of the accused. Society as well has the right to have a speedy resolution of criminal charges. Moreover, if a further eight weeks is carved out of the trial schedule for a second trial in this matter were severance to be granted, that will inevitably cause someone else, some other accused person who is presumed to be innocent until proven guilty, to have to wait eight weeks longer for their matter to be heard.

[58] The problem with that cascading effect is that it continues the complacency that the Supreme Court was clear in Jordan ought to be avoided. This is separate and apart from the duplicated expense that will be required in times of increasingly scarce financial resources, and the fact that as jury trials, an additional jury panel will have their time infringed upon, and the second jury that is selected will have to give up eight or more weeks of their lives to serve as jurors on a second bifurcated trial.

[59] If any evidence is called by one or more of the accused, a joint trial ensures that one jury will have the most complete picture. One jury should determine who did what and their culpability. Two juries should not. One jury should hear the evidence for the Crown and defence if they choose to call it.

[60] The core of the defence application is that severance is required, because Mr. Smith then becomes compellable to testify at a trial of Moreira and Cummins. But to my mind, the real question is how would those trials likely play out, and is there any realistic likelihood that Mr. Smith will become compellable. His counsel has plainly indicated he will not be waiving Mr. Smith’s section 11(b) Charter rights and that he will vigorously resist the introduction of Mr. Smith’s statement. That is of no surprise. As such, there is no certainty that the trials will play out as optimistically hoped for by counsel for Moreira and Cummins.

[61] The test is whether it is just, in all the circumstances, to grant the severance. The justice of doing so must take into account all of the evidential considerations. Stated simply, while the test does focus on the defendants’ rights of full answer and defence, that is to be balanced against the truth seeking function that is at the heart of the public’s interest, balanced against whether issues of prejudice arise.

[62] In my view, there is no doubt that antagonistic defences will necessarily arise and be pressed by each defendant against their co-accused in this case. Cummins plan to plead to manslaughter is no answer, because the Crown has charged him with murder and intends to pursue that charge. He will need to point the finger at the other two to avoid being caught up in intentional homicidal culpability. No one knows if Mr. Smith will testify at a joint trial, which would permit him to be cross-examined. If he is cross-examined, no one can know whether he will admit in cross-examination to inculpatory suggestions put to him by counsel for his co-accused, or whether, as I expect, he will seek to allocate criminal culpability to his co-accused. No one knowns whether or not Mr. Smith will accept or deny what he is recorded as having said to the police.

[63] Defence counsel rely on two decisions as supportive of their position that severance can and should be granted. The first is R. v. Savoury, noted above, and the second is R. v. T.F. [29] However, notwithstanding that Savoury provides a comprehensive review of the principles to be followed on severance applications, in my view, as explained below, neither of these decisions assist the applicants in the particular circumstances of this case.

[64] In Savoury, the accused, Savoury, was charged with attempted murder, robbery with a firearm and aggravated assault, together with his co-accused, Shaw, who was charged with robbery with a firearm and aggravated assault. Prior to trial, Shaw gave a statement to the police which indicated that Savoury was not with him at the time of the offences charged. At their joint trial, however, Shaw elected not to testify, so Savoury brought a motion for severance of their trials in order to render Shaw a compellable witness at Savoury’s trial. Savoury’s motion was dismissed and he was convicted.

[65] On appeal, the conviction was overturned and a new trial was ordered. Doherty J.A. acknowledged in his reasons that the trial judge's decision to refuse severance was an exercise of discretion that was entitled to appellate deference, absent error on the part of the trial judge. However, in Savoury, however, Shaw and Savoury were not advancing "cut-throat" defences and accordingly no miscarriage of justice could occur if severance was granted. Indeed, the court concluded that a miscarriage of justice could occur absent severance, if Shaw was not compellable and did not present evidence, which could have entitled Savoury to an acquittal or at least raised a reasonable doubt. In the totality of the circumstances, the Court of Appeal found that the interests of justice favoured severance, so a new trial was necessary in order to allow Savoury to adduce evidence from Shaw.

[66] The key difference is that Savoury was not a case where there were going to be antagonistic defences advanced. In Savoury, one of the accused had been exculpated by the other on the basis that he was not present when the crime was committed. Shaw’s statement was that Savoury was not present and had no role whatsoever in the commission of the offence, and both accused were saying that.

[67] That is a very different factual scenario than the one presented here. The evidence of the civilian witnesses, three people who saw that there were two at least, and more likely three assailants, presents a factual foundation for a finding by a trier of fact that all three were present and involved, notwithstanding Mr. Smith’s arguably unreliable statement. Further, in this case, Mr. Moreira has conceded his identity and that he was present at the scene. Even if he argues that he was an uninvolved observer at the scene, based on the kind of argument advanced in R. v. Dunlop and Sylvester, 1979 SCC 20 [30], that is, that he was “just watching” the other two putting the boots to the victims, the law nevertheless establishes that he could be found to have some culpability in acquiescing to the actions of his co-accused. Further, the availability of that kind of defence would necessarily be weakened and likely compromised by the observable fact that it is Mr. Moreira who was wearing the boots that are implicated in the assaults. Since it is his boots, according to Mr. Conery, which were inflicting severe blows, then the claim of non-involvement is directly contradicted. So, again, that will necessitate an antagonistic defence.

[68] Defence counsel stated at one point in his submissions that it is not clear who did what, and that is why he needs to call Mr. Smith, but in my view, that is precisely the reason why there should be only one trial. There should be one trial so that one trier of fact, not two, determines who did what. Mr. Bruton’s evidence will be that he observed “maximum force” being used, when one of the assailants “kneed” Mr. Noureddine in the face. Yet the evidence of Dr. Cunningham, the pathologist, is that the deathblow is clearly delivered behind the ear to the back of the head.

[69] There is evidence from which the trier could find that two, and possibly three, individuals were kicking Mr. Noureddine in the head, but it remains unclear which one of the likely two delivered the deathblow. Even if both juries find that both Mr. Cummins and Mr. Smith were kicking him on the ground, severance raises the possibility that one jury might find Mr. Cummins liable for murder on the basis of him delivering the deathblow, while a second jury might find that Mr. Smith is guilty of murder on the basis that it was he who delivered the deathblow.

[70] Clearly Savoury is one of the leading cases, but it is not the only one, and its circumstances are unique. R. v. Suzack, 2000 ONCA 5630 [31], also penned by Doherty J.A. (and which he acknowledges in Savoury is the leading case), supports the proposition that the mere presence of antagonistic defences is enough to properly require that severance not be granted. The rationale for Savoury was because, unlike in Suzack, there were no antagonistic defences. Doherty J.A. writes as follows:

86 Appellate review of the exercise of the discretion to grant or refuse severance must afford the same level of deference to the trial judge as that accorded to other discretionary decisions made by the trial judge: see R. v. Litchfield, 1993 SCC 44, 86 C.C.C. (3d) 97 (S.C.C.) at 113-14.

87 In reviewing Trainor J.'s refusal to order severance, I begin with the proposition that persons accused of the joint commission of a crime should be tried together. That presumption applies with particular force where the co-accused are each alleging that the other is the guilty party: R. v. Creighton, 1995 SCC 138, 96 C.C.C. (3d) 481 (S.C.C.) at 497.

88 Separate trials where co-accused are blaming each other for the crime raise not only the danger of inconsistent verdicts, but also a real concern that the truth will not be discovered at either trial. It is axiomatic that the truth of an allegation is best tested through a process, which requires the accuser to confront the accused with the allegation, and gives the accused a chance to respond to the allegation. If co-accused who are blaming each other for a crime are allowed to do so in separate trials, neither jury will have the benefit of that process. If the accused are tried separately, it is highly unlikely that either jury will hear the complete story. As Professor Elliot said in "Cut Throat Tactics: the freedom of an accused to prejudice a co-accused", [1991] Crim. L.R., 5 at 17:

... it is undeniable that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion. If each alleged participant is tried separately, there are obvious and severe difficulties in arranging for this to happen without granting one of them immunity. In view of this, on all but exceptional cases, joint trial will be resorted to, despite the double bind inevitably involved...

[71] The other case relied upon by the defence was R. v. T.F. That was a very unusual case. All of the evidence of the statement in that case was basically before the jury in other forms. As such, given that reality, McCombs J.’s ruling should be viewed as denying severance as unnecessary, because another narrative of that other evidence was available on consent for the jury to consider in determining the ultimate truth. That is the very specific reason, accompanied with the Crown’s admission of the statement, that McCombs J. rejects severance in that case.

[72] In this case, counsel for the Crown has made forceful submissions that one jury should decide the case. Surprisingly, to my mind given that he has applied for severance, counsel for Mr. Cummins made clear in his submissions that he has no objection to one jury deciding this case. However, he wants the jury to be able to consider the statement of Mr. Smith as admissible evidence when they do so, but there is no mechanic counsel or I have been able to identify that permits that: see R. v. Parberry, above. In defence counsel’s view, the simplest route would be for the Crown to consent to the defence use of the statement. As Mr. King says, there is nothing to prevent the Crown from conceding that the defence can use Mr. Smith’s statement as admissible. He argues Crown and defence counsel can reach the same agreement that was made in T.F.

[73] Mr. King says he does not want to have two separate trials and two separate juries, but that this is the only avenue that remains, given his position that Mr. Smith’s statement is required for full answer and defence. He acknowledged that he was not asking me to order that the Crown make the bargain that he seeks, as was reached in T.F., even assuming the laws of evidence would permit me to make that order, which I seriously doubt.

[74] There are two problems with the positions put forward by counsel for Mr. Cummins. The first is that there is an entirely different factual matrix between T.F. and this circumstance, because in Justice McCombs’s ruling he specifically notes that the evidence that was in the statement sought to be admitted was already before the Court from a whole variety of other evidential sources. The concession was for the statement of the person to be admissible for the purposes of determining its truth. Given the evidence that had been proffered from other sources, permitting the statement to be admissible on consent permitted the jury to consider whether they thought the statement was true or not, relative to the other evidence and relative to the context as a whole. In contrast, there is no other evidential source for Mr. Smith’s evidence in this case. That is an important difference.

[75] The second problem, is that the Crown is not in a position to consent to the admissibility of Mr. Smith’s statement, not only because the evidence in that statement is not otherwise before the court, as was the case in T.F., but because Mr. Smith himself, through his counsel, Mr. Morris, does not concede that it is admissible, and to the contrary, will specifically argue that it is not.

[76] Let me conclude my analysis by addressing the right of the defendants to make full answer and defence. Full answer and defence does not mean the accused is entitled to severance every time full answer and defence is at odds with all of the advantages of a single trial. If that were the case, severance would be granted normally as opposed to infrequently. The remedy of severance is there to be granted in appropriate circumstances, but the fact remains that while every case engages full answer and defence, the number of cases where severance has been ordered is clearly in the minority.

[77] I can do no better than to conclude these reasons by reminding the parties of the prescient words of Watt J.A, writing for a unanimous court in R. v. Largie, 2010 ONCA 548 [88]:

Joint trials are different than trials involving a single accused. And the right of every accused to a fair trial does not mean that those tried jointly are entitled to an exact copy of the trial they would receive if they were to be tried alone.

Conclusion

[78] Our law presumes that accused persons who are alleged to have acted in concert in the commission of an offence are to be tried together. Motions for severance are to be granted only where the court concludes that the applicants have satisfied the burden that rests on them to show that it is in the interests of justice that severance should be granted. In this case, the applicants have failed to satisfy me that it is in the interests of justice that severance should be granted. Severing these two co-accused would effectively prevent the jury from hearing all of the relevant information relative to the entirety of the events and actions involving all three accused and their roles in the death of Mr. Noureddine. Since the co-accused would have separate trials, with entirely different dynamics, that raises the prospect and risk of inconsistent verdicts. More importantly, in my view, severance would obstruct the very truth-seeking function that a joint trial of Moreira, Cummins and Smith is designed to achieve.

I accept that the trial of these three accused together will create issues, and present some challenges to the trial judge to craft careful jury instructions to navigate through these issues, but it bears remembering that the entitlement of the accused is not to a perfect trial, but to a fair and just trial. [32] The likelihood of antagonistic defences calls for a single trial. I am not satisfied on a balance of probabilities that a fair trial, even if not a hundred percent perfect trial, cannot be provided for all three accused without severance and, as such, the interests of justice do not require it. The applications are dismissed.

Michael G. Quigley J.

Released: August 23, 2018

COURT FILE NO.: CR-17-70000650 DATE: 20180823 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – WILLIAM CUMMINS and MATTHEW MOREIRA (and PATRICK SMITH) Defendants/Applicants REASONS FOR RULING Re: Severance Michael G. Quigley J. Released: August 23, 2018

[1] Transcript of Proceedings, August 1, 2017, page 34, lines 20-21, 29-32. [2] Ibid., page 35, lines 28-29. [3] Ibid., page 73, lines 27-28. [4] Ibid., page73, line 24. [5] Ibid., page 73, lines 29-30. [6] Ibid. [7] Ibid., page 40, line 11. [8] Ibid., page 41, lines 9-12. [9] Statement of Patrick Smith, Application Record of Moreira, Tab 4, at pages 151-152; 183-185. [10] Ibid., at page 142. [11] Ibid., at page 153, and 175-176. [12] Ibid., at page 186. [13] Ibid., at page 187. [14] Ibid., at pages 187-188. [15] Ibid., at pages 184-185. [16] Ibid., page 149, and pages 151-153 [17] Ibid., Pages 146 and 151. [18] R. v. Sternig, [1975] O.J. No. 1442 (C.A.) at para 35, per G.A. Martin J.A. [19] (2005), , 200 C.C.C. (3d) 94 (C.A.), at para. 22. [20] See R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384, at para. 10; R. v. Olah (1997), 33 O.R. (3d) 85 (C.A.), at paras. 36-52 (WL). [21] R. v. Crawford, 1995 SCC 138, [1995] 1 S.C.R. 858, at para. 32. [22] [2009] O.J. No. 5965 (S.C.), at para 14. [23] 1988 SCC 80, [1988] 1 S.C.R. 670. [24] (2000), , 141 C.C.C. (3d) 449, at para. 117. [25] See R. v. Parberry, 2005 Ontario Court of Appeal case at paras. 21 and 23 per Rosenberg J.A. [26] 2009 SCC 45. [27] [2009] M.J. No. 193 (C.A.). [28] [2009] M.J. No. 195 (C.A.). [29] [2006] O.J. No. 498, at paras. 23-24. [30] 1979 SCC 20, [1979] 2 S.C.R. 881, 47 C.C.C. (2d) 93. [31] , [2000] O.J. No. 100 (C.A.), at paras 87-88; see also R. v. Ronald, [2016] O.J. No. 3930 (S.C.J.) at para. 13. [32] R. v. O’Connor, 1995 SCC 51, [1995] 4 S.C.R. 411, at para. 193.