Court File and Parties

COURT FILE NO.: CR-17-50000772-0000 DATE: 20180912 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her majesty the queen, Respondent AND: muse abdirahim, Applicant

BEFORE: S.F. Dunphy J.

COUNSEL: Jim Cruess, for the Crown Respondent Christopher Assie, for the Applicant

HEARD at Toronto: August 24, 2018

REASONS FOR DECISION

[1] This is a severance application brought by the accused Mr. Muse Abdirahim pursuant to s. 591(3)(a) of the Criminal Code. Mr. Abdirahim faces three sets of charges relating to three separate incidents of alleged armed robbery. Mr. Abdirahim wishes to have three separate trials in the Superior Court of Justice, one for the charges arising from each of the three incidents. The accused intends to plead guilty to some (but not all) charges arising from the third incident and testify in his defence as to the others arising from that incident. Identification remains an issue in the other two incidents and the accused does not intend to testify in his defence with respect to either. The Crown resists severance because, among other factors, it intends to allege similar fact evidence may be used to identify the accused as the perpetrator of the two incidents where identity remains an issue.

[2] For the reasons that follow, I am allowing this application in part only.

[3] The interests of justice are the overriding consideration on an application such as this. The charges arising from the second incident shall be severed and tried separately from the charges arising from the first and third incidents. While the Crown’s intended similar fact application to introduce evidence that the perpetrator of the second incident was the same as that of either the first or the third incidents may prove viable, the case appears a borderline one based on the record assembled thus far. The intention of the accused not to testify with respect to the charges arising from the second incident is objectively reasonable and the prejudice to the accused arising from a common trial of these charges with those arising from the first and third incidents would potentially be material. On the other side of the scale, the accused has offered to mitigate the inefficiencies arising from separate trials by re-electing for trial by judge alone in respect of the second incident and to stipulate that, if the Crown is successful in its similar fact application at trial, the Crown may rely upon the transcript of the proceedings in the trial of those other charges. The accused has also agreed to waive his rights under s. 11(b) of the Charter with respect to any delay arising from severance. In all of the circumstances, the interests of justice favour severing the charges arising from the second incident and ordering a separate trial of them.

[4] The same balancing of interests compels a different result when considering the application to sever charges arising from the first incident from those arising from the third. These two incidents are more tightly anchored to each other. A consideration of the identification evidence (eye witness and video) and the DNA evidence in particular both lead to the conclusion that the Crown’s similar fact application is viable and reasonable. The stated intention of the accused not to testify with respect to the charges arising from the first incident is objectively improbable. In the balancing of interests, that intention does not displace the interests of trial efficiency, the risk of inconsistent verdicts and the interests of minimizing the impact upon victims of crime compelled to testify with respect to a violent crime on multiple occasions. The application to sever the charges arising from the first incident from the charges arising from the third must be dismissed.

Background facts

[5] The allegations giving rise to these charges may be summarized as follows.

(a) Stay Inn incident - August 13, 2010, 12:27 a.m.

[6] It is alleged that a single individual wearing a “hoodie” pulled tightly around his face entered the Etobicoke hotel premises shortly just before 12:30 a.m. The employee/ witness observed him exhaling a puff of cigarette smoke. He then went directly to the cashbox pulled a silver revolver and pointed it at the witness who fled and called 911. Cash and the surveillance monitor (but not the hard drive) were taken.

[7] Police found a cigarette butt outside the door used by the perpetrator to enter. Police evidence indicates this was the sole cigarette in the area and it was found with a long, undisturbed ash. DNA was able to be extracted from the cigarette. Police also seized the surveillance video from the hard drive. The clerk provided a statement and description of the individual to police.

[8] Mr. Abdirahim faces two charges arising from this incident: robbery with a handgun contrary to s. 344(1)(a) of the Criminal Code and disguise with intent contrary to s. 351(2) of the Criminal Code.

(b) Mac’s Milk incident - August 22, 2010; 12:30 a.m.

[9] It is alleged that a man wearing a “hoodie” pulled tightly around his face entered the Mac’s Milk store in Etobicoke and approached the cashier, pulling a silver revolver and demanding money. The suspect took cash and cigarettes. The incident was captured on surveillance video.

[10] Mr. Abdrirahim faces two charges arising from this incident: robbery with a handgun (Criminal Code, s. 344(1)(a)) and disguise with intent (Criminal Code, s. 351(2)).

(c) Cell Phone store - September 20, 2010; approx. 8:30 p.m.

[11] It is alleged that two men in hooded sweatshirts entered the store premises located on Finch Avenue West in Rexdale. One of the men wearing a “hoodie” pulled loosely around his face and a mask pulled a silver revolver and pointed it at the store employee demanding cell phones and money. The man vaulted a glass counter, breaking it and cutting himself. The man pointed his gun at the employee and it discharged, hitting the employee in the shoulder area. The man removed cash from the till and left. Police seized a bullet at the scene, retrieved a sample of blood from the broken glass (from which DNA evidence was able to be extracted) and the surveillance video.

[12] The accused faces six charges from this incident: robbery with a handgun (Criminal Code, s. 344(1)(a)), disguise with intent (Criminal Code, s. 351(2)), attempt murder with a handgun (Criminal Code, s. 239(1)(a)), discharge firearm with intent to wound (Criminal Code, s. 244(2)(a)), unauthorized possession of prohibited or restricted firearm (Criminal Code, s. 95(2)(a)) and knowing possession of handgun without a license (Criminal Code, s. 92(3)).

[13] It is anticipated the Crown will call video surveillance evidence seized from the scene of each of three incidents which contain images of the perpetrator of each. The Crown also expects to call DNA evidence seized from the first (Stay Inn) and third (Cell Phone store) incidents that were matched to the accused after he was required to provide a DNA sample in 2017. The accused will admit the scientific evidence and not dispute that the two DNA samples seized match his own DNA. The employees present at the scene of each of the three incidents will also be likely witnesses and each will give descriptions of the perpetrator of each incident consistent with the age and appearance of the accused. Police evidence relating to the seizure of the video evidence and the DNA evidence will also be called.

[14] The geographic area in which the three incidents took place and the residence of the accused at the time are all generally in the west end of Toronto. On a map, these four locations line up in a generally vertical line about 12 kilometers long (Stay Inn at the bottom and the Dixon Rd. residence of the accused at the top) located in the area between Highway 427 and Highway 400 (were the latter to continue towards the lake).

[15] At this point in the proceedings, the accused has indicated that he expects to plead guilty to some of the charges arising from the third incident, but not guilty to the attempt murder and firearms charges. He would intend to testify in his defence with respect to this incident in order to defend against the charges he does not intend to plead guilty to. He has also indicated that he does not intend to testify with respect to the charges arising from the other two incidents and shall put the Crown to the strict proof of those charges.

Issues to be argued

[16] The issue on this application is whether it would be appropriate to sever the charges relating to each of the three incidents from each other pursuant to s. 591(3)(a) of the Criminal Code.

Analysis and discussion

[17] There was little real controversy concerning the burden of proof and the legal standard to be applied by me in considering this application.

[18] The general rule, expressed in s. 591(1) of the Criminal Code, is that the Crown may join “any number of counts for any number of offences” in the same indictment. The latitude given the Crown to do so was described by the Supreme Court of Canada in R. v. Last, [2009] 3 S.C.R. 146, 2009 SCC 45 at para. 1 as being “a large discretion”. While the discretion conferred is broad, it is not without limit. One of those limits is the right of the accused to bring a severance application.

[19] When considering an application under s. 591(3) to sever a multi-count indictment, the “overarching criteria are the interests of justice”: Last at para. 1. Last described a non-exhaustive list of criteria the court may consider, subject always to the overarching criterion of the interests of justice. The interests of justice encompass both the accused’s right to be tried on the evidence admissible against him and society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The described factors are necessarily non-exhaustive.

[20] I shall proceed to review the various Last criteria that appear applicable to the circumstances of this case and then consider what conclusion my overall assessment leads to when examined in the light of the interests of justice. I consider the Last criteria alive to the admonition that they are by no means exhaustive and the assessment of them cannot be reduced to a mechanical formula but requires a sensitive overall view.

(a) Discussion of Last Criteria

(i) General prejudice to accused

[21] There are a number of ways in which the accused may suffer prejudice when multiple counts relating to separate incidents are tried together. The accused is entitled to put the Crown to the strict proof of each and every allegation in the indictment and is not required to assist the Crown with his own evidence. Where, as here, similar fact evidence is anticipated to play a significant role in the Crown’s case, two types of potential prejudice require particular attention. “Reasoning prejudice” occurs when the jury applies evidence admissible in respect of one count as evidence of guilt in another and “moral prejudice” occurs when the jury is led to apply evidence in respect of one count as evidence of general propensity to commit the crime alleged in another. Both are related risks.

[22] The applicant submits that propensity reasoning risk is heightened in this case where the accused has indicated an intention to plead guilty to some, but not all of the charges arising out of the third incident and to plead not guilty to all other charges. It might be considered to be heightened still further by the more violent circumstances of the third incident when compared to the other two. A gun was discharged and the store employee struck in the shoulder. The jury might be led to conclude that a person guilty of one violent armed robbery might be readily presumed to be guilty of two others and the greater degree of violence associated with the third might influence the jury’s assessment of the other two.

[23] The Crown acknowledges that such risks may be present in any case involving multiple incidents and similar fact evidence. However, the Crown submits that this is a risk that can be mitigated with detailed instructions to the jury – instructions the jury are presumed capable of understanding and faithfully applying.

[24] At a high level at least I must concur with the Crown that our entire system of justice is predicated on the capacity of jurors to listen to and carefully apply a judge’s instructions. That is an assumption that is borne out by the everyday experience of trial judges. I have never failed to be impressed with the diligence and care taken by juries. There are safeguards in place, including appellate review for unreasonable verdicts and appellate review of the sufficiency of jury charges to ensure the rights of the accused are protected.

[25] This being stated, the risk is clearly a heightened one even if a jury charge must be considered capable of mitigating that risk to a significant degree.

(ii) Intention of accused to testify

[26] The accused indicates that he expects that he would testify in his defence in the third (Cell Phone store) incident, but not in respect of the other two incidents were this application to sever successful. The relevance of the testimonial intention of the accused to a severance application is the concern of ensuring that the accused is able to control his own defence and, in particular, to decide whether or not to testify “unimpaired by inappropriate constraints”: Last at para. 25-26.

[27] Not every constraint is “inappropriate”. The relative weight to be given to each of the factors impacting the interests of justice on a severance application is necessarily fact-specific.

[28] The intentions of the accused are, of course, just that: intentions. The accused retains the right to conduct his defence as he sees fit and, should the circumstances appear to warrant it as the case proceeds, he retains the right to change his mind regarding those intentions.

[29] At this stage, my role is to assess those expressed intentions from an objective viewpoint – careful not to substitute my judgment for that of the accused, but mindful of the need to establish an objective rationale for the stated intention for the purpose of considering the interests of justice. An objectively reasonable stated testimonial intention will be entitled to greater weight than one that is not so judged.

[30] The applicant submitted that his intention not to testify at a trial relating to the first and second incidents is a reasonable one. While the DNA evidence found at the scene of the first incident has been matched to the accused, the applicant submitted that this evidence is equivocal and does not place the accused at the scene of the crime at any particular time. There is no direct evidence connecting the accused to the second incident beyond inconclusive video evidence and what the applicant describes as generic. In consequence, his decision not to testify and put the Crown to the strict proof of its case is, he submits, reasonable.

[31] I am obviously in no position to second-guess the decision of the accused. I also appreciate that allowances must be made for the numerous ways in which the evidence expected translates into the actual evidence received. As the saying goes, many is the slip between the cup and the lip. It may be that the decision of the accused not to testify would be maintained after the close of the Crown’s case. However, I am required to assess whether the accused has provided sufficient information to convey that there is objective substance to that stated intention based on the circumstances now before me.

[32] I shall examine the first and second incidents separately.

[33] With respect to the first (Stay Inn) incident, the expected evidence – at this point at least – is that police witnesses will place the cigarette from which the accused’s DNA was extracted near where the perpetrator was seen by the hotel clerk to enter the hotel lobby exhaling cigarette smoke. That same evidence will also suggest that no other cigarettes were found in the immediate area and that the cigarette had a long, undisturbed ash at the end. The Crown submits that there is a strong likelihood that the accused would feel strategically compelled to testify to offer an explanation to defeat the strong inferences likely to arise from this circumstantial evidence.

[34] At this point in the evolution of the evidence, I concur with the Crown’s assessment but do so recognizing the unpredictable twists and turns by which the actual evidence heard at trial may vary significantly from what was expected. It is probable that the accused will be strategically compelled to testify to explain the presence of a cigarette bearing his DNA at the scene of the first incident in the circumstances expected to be demonstrated.

[35] The same considerations do not apply to the second (Macs Milk) incident. At this point, it would appear that the only evidence potentially permitting the identification of the accused as the perpetrator of this incident will be the similar fact evidence potentially suggesting a common perpetrator of all three incidents. There is no suggestion that the witness has positively identified the accused as the perpetrator and the video evidence of this incident is unlikely to be of sufficient quality to enable a jury to identify the accused as the perpetrator absent reliance upon similar fact evidence.

[36] The accused’s stated intention appears objectively reasonable in relation to the second incident.

[37] The testimonial intention of the accused is not a controlling factor. It is one factor to be weighed in the balance. This factor weighs weakly in the balance as regards severing the first from the third incidents but more strongly as regards the severing the second from the other two. I shall return to this consideration below.

(iii) Efficiency and trial within a reasonable time

[38] This matter is currently scheduled for a jury trial estimated to last 3-4 weeks commencing on March 18, 2019. Clearly, the judicial resources required to conduct three trials will necessarily be greater than those required to be devoted to a single trial. The public interest in efficiency is two-fold. There is a general public interest in ensuring the smooth and efficient functioning of the justice system. There is also a particular interest in safeguarding the rights of a person accused under s. 11(b) of the Charter. While s. 11(b) protects the right of a person charged with an offence, the vouchsafing of those rights is in the public interest as well.

[39] The Crown acknowledges that the s. 11(b) waiver proposed by the applicant adequately addresses the public interest in relation to the Charter rights of this accused person. However, the Crown objects that the finite availability of resources within the broader justice system means that the s. 11(b) Charter rights of other persons may be adversely impacted were severance ordered and multiple trials held.

[40] The applicant has been co-operative and pragmatic in working with the Crown to streamline proceedings to date, helping thereby to minimize both hearing time and delay. The applicant points to concessions made in relation to the DNA evidence and the proposed guilty plea in relation to at least some of the charges arising from the Cell Phone store incident – steps which will shorten and simplify the hearings. The applicant also indicated a willingness to re-elect for a trial by judge alone on the charges arising from the first two incidents were severance ordered and to stipulate to permit evidence at one trial to be introduced as evidence at the subsequent trial(s) should the Crown succeed in its intended similar fact application(s).

[41] It seems likely that the kinds of concessions and admissions proposed by the applicant would go a long way to mitigating the inefficiencies inherent in conducting three trials of a single accused in a comparatively short period of time. Nevertheless, there are efficiencies both in time and in cost of a single trial when contrasted with two or three trials even considering all of these proposed concession: one opening, one closing, one jury charge. Two or three trials are more difficult to schedule as it will involve juggling timetables of numerous judges, counsel and witnesses.

[42] The concessions proposed by the accused may well make it feasible to conduct sequential trials within the time allotted, reducing the negative impact on the public interest, timing and efficiency to a very minor one. Two trials could very likely be held, three would very likely be a stretch.

[43] The broader public interest in efficiency and the protection of s. 11(b) rights extends beyond the particular rights of a particular accused even if these are of central importance. We have yet to reach what might be described as a state of “post-Jordan equilibrium” where the system is able to meet its Jordan timelines as a matter of course. Judicial resources continue to be “borrowed” from other areas to ensure that the full complement of judges needed to support the criminal trial process is available in priority to other demands. Efficiency is a value whose weight is entitled to a somewhat higher value when inefficiency can be said to impact upon the capacity of the system to respect the rights of others. The degree of such weight must be tempered by the realization that the accused does not build courts, name judges, hire prosecutors or otherwise allocate resources to the justice system.

[44] All things considered, I would conclude on this criterion at least that the concessions proposed by the accused application would mitigate much, but not all of the negative impact on trial efficiency and s. 11(b) that might be attributed to allowing the application to sever in this case. It is a factor to be considered, but one of greatly diminished weight in the circumstances present here and in light of the proposals made by the accused.

(iv) Inconvenience to witnesses

[45] There is a particular aspect of trial efficiency on the facts of this case that I have not yet addressed and that is the impact upon the witnesses.

[46] Even with a guilty plea on some of the charges arising from the third incident, the Crown’s case on the first and second incidents will rely to a material degree on similar fact evidence. This means that there is a very real likelihood that witnesses will be required to testify two or three times as to the same incident if the full severance sought by the applicant were granted.

[47] Each of the eye-witnesses was the victim of a violent crime involving an armed robbery, a gun being directed at them and, in the case of the third victim, the gun being discharged and wounding the victim in the shoulder. These would certainly be very traumatic events for the individuals concerned. Being compelled to re-live such events three times in succession – whether separated by days, weeks or months – can reasonably be supposed to be a source of distress to them. The interests of justice do not compel me to disregard the interests of victims of crime when considering an application such as this. The weight this factor bears is something to be considered on the facts of each case.

(v) Complexity

[48] With the admissions proposed to be made by the accused, expert evidence regarding the DNA evidence will not be required. Should the accuse plead guilty as currently intended to some but not all of the Cell Phone store charges, the question of identity would not be in issue for that case at least. There are no co-accused to consider.

[49] Complex cases may sometimes argue in favour of severance in order to avoid overwhelming the jury with evidence and issues. This is not such a case.

(vi) Nexus between incidents and similar fact evidence

[50] There are a number of common points suggesting a nexus between the facts and issues raised by the charges relating to each of the three incidents. All three incidents involve an armed robbery carried out relatively swiftly and with some focus. They all occurred in a fairly narrow corridor in the Etobicoke area over a relatively brief period of time. The perpetrator was of similar height, age, build, skin colour and the clothing worn also bore similarities. A silver gun was used in all cases and was held in the right hand. While identification is not an issue (assuming a guilty plea) in the case of the third incident, it is the primary issue in respect of the first two.

[51] The Crown asserts that there are sufficient common factors to support a similar fact evidence application. While the identification of the perpetrator of the third robbery is not expected to be at issue given the stated intention of the accused to plead guilty, the Crown intends to rely upon the facts of all three robberies as proof that the accused was the perpetrator of the first two.

[52] The Crown lists the following points of similarity between the three incidents as being factors it intends to rely upon in seeking to obtain a ruling on the admissibility of such evidence to identify the perpetrator of the first two incidents:

(1) Location: all three robberies occurred in West Toronto (Rexdale and Etobicoke) in a narrow area generally south and slightly west of the residence of the accused at the time; (2) Time: first two occurred at or about 12:30 a.m. while the third occurred at approximately 8:30 p.m. shortly before closing time; (3) Timing: the first two incidents were only nine days apart – the third came three weeks later; (4) Description of perpetrator (from first two incidents where identity in issue): Skin colour and ethnicity: the eye-witness victims described a perpetrator with skin complexion consistent with the appearance of the accused (witnesses described lighter shade of black and/or Somali in appearance); Age: witnesses to the two incidents gave an age range (22 to 27) or “about 20” of the perpetrator compared to the actual age of the accused at the time (21): Build: the perpetrator was described as having a slim or thin build with a moustache consistent with the appearance and description of the accused in a contemporary (2012) photo; Height: the accused is six feet tall, the witnesses to the first two incidents described the perpetrator as being 5’11” tall or 6’ to 6’1” tall; (5) Methods employed to carry out the crime: Number of perpetrators: there is no suggestion in the evidence that more than one person was involved in the first two incidents compared to evidence of two perpetrators in the third; Arm employed: The witnesses and video evidence indicate the use of an apparently silver-coloured revolver held in the right hand by the perpetrator in all three incidents; and Dress: a “hoodie” type sweatshirt with hood pulled tight around the face was used by the perpetrator in the first two incidents while a hoodie with the hood worn more loosely along with a mask was used in the third, the perpetrator in all three was wearing a similar looking pair of running shoes.

[53] The applicant submits that most of the common features the Crown intends to rely upon are somewhat generic in nature – a large number of people can be presumed to fit the description of young, approximately 6 feet tall, slim build, thin moustache having black skin of a lighter shade. By the same token, the observed dress (hoodie, running shoes) is not particularly distinctive either. The use of a handgun in robberies is, unfortunately, not uncommon and a large number of handguns are silver in appearance. Finally, the suggested common geographic area (a large area of Etobicoke) is a broad one containing areas of a relatively high concentration of young men bearing a similar description. All of these weaknesses in the similar fact evidence must be viewed in light of the relatively high standard that such evidence must meet in order to be admissible: R. v. Handy, 2002 SCC 56 and R. v. MacCormack, 2009 ONCA 72 at paras. 48-56.

[54] There is no “minimum” factual nexus that must be established in the context of a severance application: R. v. Blacklaws, 2012 BCCA 217 at para. 33 dissent reasons confirmed by 2013 SCC 8. At this stage in the proceeding, it is not necessary or possible to predict with certainty what the outcome of the Crown’s similar fact evidence application will be. A prospective assessment of the Crown’s intended application is but one of several factors to be considered in weighing the interests of justice in connection with a severance application. In weighing that factor, I must consider whether the Crown could “possibly” meet the test in future (Blacklaws at para. 42) or whether the Crown has a “viable similar fact application”: R. v. Minister, 2012 ONSC 1040 at paras. 46-51.

[55] The Crown submits that its intended similar fact application is a viable one. While a number of the listed common features may appear relatively generic when viewed individually, their cumulative impact is stronger. Further, the first and third incidents are firmly anchored to each other by DNA evidence. While the third incident does indeed display a number of unique aspects, they are not so different as to detract from the common perpetrator theory of the Crown and the evidence suggests a number of explanations for the differences.

[56] My task at this stage of the proceedings is not to determine whether the Crown’s similar fact application will succeed. As with many things, that success or failure of that application will depend upon how the trial actually unfolds and the precise application that is made. The Crown was not required to bring its similar fact application at the same time as the severance application and may indeed not do so until at or near the end of its case. Trials are complex affairs and judgment calls – including as to admissibility of evidence as it is admitted and consideration of probative value relative to prejudice to the accused – need to be made in the context of the evidence as it is actually received.

[57] The DNA evidence tethers the first and third incidents together to a considerable extent and thus breathes a significant degree of viability into the Crown’s intended application as regards those two incidents. At this point, the Crown’s intended application appear tenuous as regards the second incident. The general physical attributes of the perpetrator described by the eye witness to that incident and captured in relatively low quality video by themselves are, as the applicant suggest, fairly generic. The applicant noted (and I agree) there is to this point no statistical or other evidence of robberies in that time or area that might attach greater significance to those general facts and point more strongly to the accused.

[58] I cannot and need not say at this stage whether the Crown’s application will succeed in whole or in part. I can and do find that the intended application has a reasonable chance of succeeding as regards the evidence of the first and third incidents and is thus a factor to be weighed in the balance on this application. I cannot say whether the Crown may yet succeed in relying upon evidence of the other two incidents at the trial of the charges arising from the second. I do conclude that this aspect of the Crown’s intended application appears tenuous at this stage and thus bears a relatively lesser weight in the scales.

(vii) Inconsistent verdicts

[59] The applicant submits that there is no risk of inconsistent verdicts in this case.

[60] At one level, this is true. The three incidents are occurred at different times and places. While the Crown’s theory is that one person was the perpetrator of all three, this is not a necessary conclusion. An acquittal of the accused on charges arising from the first two incidents is not inconsistent with a guilty plea in respect of the third any more than a finding of guilt in all three incidents would be inconsistent.

[61] This submission of the applicant does not give sufficient weight to the nature of the case the Crown intends to present. Even with a guilty plea on some of the charges arising from the third incident, the Crown intends to rely upon similar fact evidence connecting this incident to the other two. The similar fact evidence is very likely crucial to the theory of the Crown’s case on the second incident. The prospect of three separate triers of fact reaching three different verdicts based in part upon the same similar fact evidence creates an obvious risk of inconsistency.

(b) Weighing of criteria and overall assessment of interests of justice

[62] As is apparent from my review, I do not attribute the same weight to the criteria I must consider in the context of each of the three incidents. Given the intended guilty plea on some of the charges arising from the third incident and stated intention of the accused to re-elect trial by judge alone in respect of the charges relating to the first two incidents, it is simplest to consider the application of the Last analysis to each separately.

(i) First incident

[63] The factors weighing most strongly in favour of granting the application are clearly the first two mentioned. The general prejudice to the accused in being subjected to the risk of a jury considering inadmissible evidence or engaging in propensity reasoning and the desire of the accused to testify in his own defence on charges arising from only one of the three incidents are all entitled to significant weight.

[64] None of these is entitled to decisive weight. The right of the accused to decide whether or not to testify with respect to each count is not to be impaired by “inappropriate” constraints: Last at para. 25. There are competing interests and not all impose “inappropriate” constraints.

[65] Each of these factors favouring severance is mitigated to a greater or lesser degree when considering the first incident. Notwithstanding the stated testimonial intention of the accused, there is a considerable likelihood that the DNA evidence linking the accused to the scene (and potentially time) will create a practical requirement to refute the inference arising by providing an alternative explanation for the presence of a cigarette in that location bearing the DNA of the accused when a perpetrator matching the description of the accused was observed exhaling cigarette smoke upon entering the premises by an eye witness and the cigarette bearing the accused’s DNA was found in that same location.

[66] There is an obvious risk that a jury hearing the guilty plea of the accused to some of the charges arising from the third incident – charges that involved an armed robbery and the shooting of a store clerk – may be tempted to resort to propensity reasoning when considering the strength of the evidence identifying the accused as the perpetrator of the first robbery. That is a risk that is, to a degree, common to every instance of multiple counts in a single indictment. It is risk that is able to be mitigated by careful instructions. I recognize that this is not a perfect answer and there is still a lingering degree of prejudice to be considered positing even the most perfect of jury charges.

[67] In my view, the factors weighing against severance are not displaced by these two considerations.

[68] The interests of efficiency weigh against severance. The number of concessions the accused has indicated he is prepared to make – re-electing for judge alone on the first two incidents if severed and stipulating as to the admissibility of evidence led at the jury trial of the third incident – would greatly lessen the weight of this factor but not eliminate it entirely.

[69] The impact upon witnesses of multiple trials is another factor that weighs against severance.

[70] In my view, the balance tips decisively away from severance when one factors in the Crown’s reasonably advanced intention to bring a similar fact evidence application.

[71] My task is to consider and weigh all of the Last criteria as well as any others that may appear to impact upon the interests of justice. Having done so in the light of the circumstances of this case, I find that the applicant has not established on the balance of probabilities that severance of the charges arising from the first incident from those arising from the third is necessary in the interests of justice.

(ii) Second incident

[72] I come to quite a different conclusion when weighing these same factors and considering whether the second incident should be severed from the trial of the other two.

[73] The stated intention of the accused not to testify in respect of the charges arising from this incident is an objectively reasonable one. No eye witness has positively identified the accused as the perpetrator even if a description that he fits was given. The video evidence is of relatively low quality and there is no DNA evidence connecting the accused to the time or place of the robbery.

[74] The applicant has proposed to re-elect for a trial by judge alone and, were similar fact evidence ruled admissible, to allow the record of such evidence from the prior trial to be relied upon in lieu of requiring the victims to testify again.

[75] It appears to me quite likely that the trial of the second incident could proceed immediately following the completion of the jury trial in respect of the charges arising from first and third incidents. The impact upon efficiency, judicial resources and victims of crime would be slight. The Crown’s similar fact application in respect of this incident may pass the low threshold of “possible” or “viable”, but it remains a tenuous one. I would attribute an accordingly lower degree of weight to it.

[76] In the circumstances, I am satisfied that the interests of justice do favour a severance of the two charges arising from the second (Macs Milk) incident from the trial of the other two.

Disposition

[77] In the result, I am allowing this application in part. The charges arising from the second (Macs Milk) incident shall be tried separately from the charges relating to the first (Stay Inn) incident and the third (Cell phone store) incident. The two charges so severed shall be heard after the completion of the trial on the first and third incidents.

[78] If possible, the two trials shall be sequential and before the same judge.

S.F. Dunphy J. Date: September 12, 2018