COURT FILE NO.: CJ9224
DATE: 2018-02-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
FREDDY MAWICK
Applicant
T. Meehan, on behalf of the Crown
S. Dimitrijevic, on behalf of the Applicant
HEARD: February 2, 2018
A. J. Goodman J.:
RULING ON APPLICATION FOR SEVERANCE
[1] This is an application brought by Freddy Mawick (“Mawick”) for severance of a two count indictment, pursuant to s. 591(3)(a) of the Criminal Code.
Issues:
[2] The central issue is whether the applicant’s right to a fair trial will be undermined by the joinder of counts related to two different complainants and events, from events alleged to have occurred proximate in time.
[3] Will the applicant be sufficiently prejudiced by the counts as alleged in the indictment? Do the interests of justice require that the counts be severed?
Positions of the Parties:
[4] The applicant moves for severance of counts in relation to alleged fraudulent activity perpetrated against two different complainants in proximate periods of time. The applicant submits that there is no legal or factual nexus between the alleged incidents involving the events in relation to Herbert Woodhouse (“Woodhouse”) and the alleged single incident between himself and Josephine Ngai (“Ngai”). This alone may cause the trier of fact to suppose that the applicant is a pattern offender who has engaged, or has tried to engage, in such propensity conduct in the course of his encounters with both complainants.
[5] Second, the applicant says there is a substantial difference of scope, quantum and nature of the numerous series of events against Woodhouse and the alleged single transaction related to Njai. There is a significant absence of factual nexus between the two complaints.
[6] Counsel for the applicant states that prejudice will inure to his client. He submits that there is a risk that the prejudice engendered by joinder of the counts including the accused’s right to choose whether to testify with respect to these two different complainants. Such an election has not been expressed at this juncture. Nonetheless, it is necessary that the counts be severed by complainant to protect his rights to a fair trial. By joinder, the applicant submits that the Crown will lead a body of evidence that introduces propensity reasoning. The applicant submits that the combination of relevant factors clearly provides that the interests of justice require that he be tried separately on the counts related to the two complainants.
[7] The Crown submits that none of the rationale relied upon by the applicant, collectively or standing alone, require severance. The Crown contends that the evidence or the underlying factual circumstances is somewhat intertwined to such an extent that holding separate trials would be an artificial division.
[8] Although the Crown does not intend to bring a similar fact application, it is submitted that the nexus between the counts and other considerations warrant joinder of counts. Crown Counsel also argued that while this case is not complicated, one must place trust in the jury system and their ability to follow instruction, and severance would create an inconvenience for a multiple of juries.
[9] The Crown submits that an accused’s subjection to cross-examination or taking a different position with respect to one complainant and not the other is not inherently a justification for severance. In any event, this is not a consideration here. Multiplicity of proceedings is another factor. The Crown asserts that the link between the alleged events is relevant and the applicant has not demonstrated that it is in the interests of justice to grant severance.
Legal Principles:
[10] The joinder and severance of counts in an indictment are dealt with in s. 591 of the Criminal Code, which provides as follows:
591.(1) Subject to section 589, any number of counts for any number of offences may be joined in the same indictment, but the counts shall be distinguished in the manner shown in Form 4.
(2) Where there is more than once count in an indictment, each count may be treated as a separate indictment.
(3) The court may, where it is satisfied that the interests of justice so require, order
(a) that the accused or defendant be tried separately on one or more of the counts;
and
(b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more counts.
[11] The Code provides for the exercise of discretion where a Court “is satisfied that the interests of justice so require”. These words obviously confer a broad discretion. While the Crown is itself given a broad discretion in joining any number of counts in a single indictment, the Court has the power to order separate trials where the interests of justice requires it.
[12] It is not my intention to canvass the plethora of authorities on this subject. The starting point in considering the exercise of the Court’s discretion is found in the Supreme Court of Canada’s seminal decision in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, [2009] S.C.C. 45.
[13] In Last, the trial judge had declined to order separate trials where an indictment alleged two separate sexual offences against an accused, that were unrelated in terms of time and location, as well as involving different complainants. The trial judge found that there was a nexus in time and place because the incidents occurred roughly one month apart in the same city. He was not persuaded that the question of prejudice would be significant, since a modern jury should be able to handle appropriate instructions given by the trial judge. He did not place much weight on a statement by defence counsel that the accused might wish to testify on counts related to one incident but not the other. The accused was convicted on all counts, and he appealed.
[14] The Court of Appeal dismissed the appeal. The majority held that the trial judge had acted judicially in refusing to sever the counts in the indictment. Justice Juriansz dissented, and opined that the trial judge erred in assessing the weight of the relevant factors and their cumulative effect on the interests of justice.
[15] On further appeal to the Supreme Court of Canada, the appeal was allowed and a new trial was ordered. Justice Deschamps, for a unanimous Court, states the following at para. 16:
The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in the interests of justice, as per s. 591(3) of the Code. The interests of justice encompass the accused’s right to be tried on the evidence admissible against him, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.
[16] At para. 18 of Last, Deschamps J. listed the factors to be considered by the Court in exercising its discretion under s. 591(3) of the Code:
(a) the general prejudice to the accused;
(b) the legal and factual nexus between the counts;
(c) the complexity of the evidence;
(d) whether the accused intends to testify on one count but not another;
(e) the possibility of inconsistent verdicts;
(f) the desire to avoid a multiplicity of proceedings;
(g) the use of similar fact evidence at trial;
(h) the length of the trial having regard to the evidence to be called;
(i) the potential prejudice to the accused with respect to the right to be tried within a reasonable time. See: R. v. E.(L.), 1994 CanLII 1785 (ON CA), [1994] O.J. No. 2641 (C.A.); R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333. R. v. Cuthbert (1996), 1996 CanLII 8341 (BC CA), 106 C.C.C. (3d) 28 (B.C.C.A.), at para. 9, aff'd 1997 CanLII 397 (SCC), [1997] 1 S.C.R. 8. [^1]
Analysis:
[17] A trial judge has a wide discretion to order separate trials where joinder of counts would exact an injustice. Severance will be granted only where an accused displaces the presumption, on a balance of probabilities.
[18] The factors identified by the Supreme Court of Canada are not exhaustive. They simply help capture how the interests of justice may be served in a particular case to avoid an injustice. Of course, some of these factors will have greater or less weight, or even no weight, depending on the circumstances. Some of these factors may overlap. For example, the legal and factual nexus between the counts will be relevant and probative to the potential admission and use of similar fact evidence at the trial, if such an application is advanced. No one factor is determinative and all relevant factors must be weighed by a trial judge in the determination of whether severance is in the interest of justice.
[19] Adjudicative fairness is the hallmark albeit not the exclusive determination of the concept of “the interests of justice” in this application. If moral or reasoning prejudice is realistically threatened beyond its probative force and the trial judge’s instructions to the jury as to the proper use of the evidence, the argument for severance strengthens. Irreparable prejudice could occur in a joint count even with proper and careful directions. While the general policy of the law of evidence is for joinder, strong grounds must exist to justify severance. However, I am mindful that applicant must demonstrate that the interests of justice mandate severance on a balance of probabilities.
[20] A person charged with a crime has a right to be tried on evidence admissible against him or her. That said, inadmissible or prejudicial evidence can potentially impact the fairness of the proceedings and occasion a miscarriage of justice. It is in both the interests of the accused and society that trial judges ensure fairness for the accused throughout the proceedings.
[21] Weighing against severance is the desire to avoid multiple proceedings, the prospect of two separate trials and the potential of inconsistent verdicts. Where, however, the risk of prejudice to an accused is significant and outweighs the benefits to the administration of justice of joinder of counts, severance should be ordered. The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice and the public interest in a single trial. I am reminded that severance can impair not only efficiency but the truth-seeking function of the trial.
[22] Before turning to the application of the appropriate factors, I will briefly canvass the facts of this case that are relevant to the exercise of my discretion.
[23] It is alleged that Woodhouse received a letter in the fall of 2014 stating the he won $3.6 million through a mega millions lottery. The letter instructed Woodhouse to call the claims agent, Tony Williams, so that he could collect his winnings. Woodhouse spoke with Mr. Williams and after this conversation, Woodhouse received a cheque for $3.6 million. This was a fraudulent cheque. It is alleged from October 2014 until the end of March 2015, Woodhouse was instructed to send numerous cheques and bank drafts payable to different individuals and companies under the guise that these payments were necessary for Woodhouse to obtain his lottery winnings. Woodhouse did not receive any money back from any of these individuals.
[24] Also, it is alleged that Woodhouse sent two TD Bank drafts to Expetech. The first draft was in the amount of $18,000 USD, dated November 5, 2014. The second draft was in the amount of $10,000 USD, dated November 21, 2014. This draft was redeemed by Woodhouse. Both drafts were sent to 14-30 Eglinton Avenue West, Mississauga, ON.
[25] It is alleged that the applicant registered a business in his name which was called Kadeem Fletcher. The business address was 14-30 Eglinton Avenue West, in Mississauga. Furthermore, it is alleged that the applicant negotiated all the certified cheques, except the one dated Dec. 2, 2014, mentioned in paragraph four, at GTA Financial & Investment Corporation, located at 800 Steeles Avenue West, Thornhill, ON. It is alleged that the applicant cashed two of the TD bank drafts payable to Kadeen Fletcher, dated October 2, 2014, and October 23, 2014 and the TD bank draft payable to Expetech, dated Nov. 5, 2014, at a Money Market located a11-2777 Steeles Avenue West, in Toronto.
[26] It is alleged that Ngai entered into a business relationship with a person by the name of Alan Michigan (“Michigan”). Ngai met Michigan online. During this relationship, Ngai received a $25,486.55 cheque payable to her from a company named Nutralab from Michigan. She was instructed by Michigan to open a bank account and deposit this cheque. Moreover, it is alleged that Michigan instructed Ngai to send money to a person by the name of Kadeem Fletcher. Ngai sent a certified cheque in the amount of $18,000 CDN, dated November 28, 2014. The cheque was sent to 30 Eglinton Avenue West, unit 14, in Mississauga. It is alleged that the initial cheque was fraudulent and as a result Ngai became indebted to the bank in the amount of the original cheque. Ngai never received any money back.
[27] It is alleged that the applicant cashed the aforementioned cheque at GTA Financial & Investment Corporation located at 800 Steeles Avenue West, in Thornhill.
[28] I agree with applicant’s counsel as to the significance of nexus. Where there is clear nexus, such as in the case of a specific organization crime or conspiracy crime with various common elements and acts in furtherance, or such as in the case of dates for the fraud with different victims but a continuity of events and time and means, the logic of a joint trial is more compelling; rather where there is a series of events, largely linked together only by the identity of the person charged and some overlap in dates. However, it does not fall to the Crown on a severance motion to prove nexus in a robust or definite manner in order to respond to the severance application.
[29] In terms of the nexus among the incidents, I agree with the applicant that there are facts related to the alleged incidents that are dissimilar in scope. Other than temporal proximity and the manner of deposits, the complainants did not know each other. If separate trials are ordered, much of the same evidence will not be called, on each of them. This would mean that each complainant does not have to testify about the events in question a number of different times. While prejudice to the accused is an important, and perhaps overriding consideration, nevertheless unfairness, or potential unfairness, to the complainants is also a valid consideration.
[30] Factual nexus could refer to similarities or connection in facts such as circumstances or time, or in a way a sexual assault was disclosed. The Crown is not required to prove nexus in a strong or definitive manner in order to rebuff a severance motion: R. v Ticknovich, 2003 ABQB 597, [2003] A.J. No. 905 (Q.B.) at para. 67.
[31] At this stage of the application, I am persuaded that it is not only a focus on the acts themselves, but all of the surrounding circumstances that are relevant to my determination. Notwithstanding the proximate timeframe between the two complainants' allegations, and the manner of receipt of the funds, factually, the incidents involving both complainants are not fully intertwined.
[32] Although the Crown is not advancing an application, similar facts are not the same as a factual nexus. The concept of factual nexus includes inter alia whether there would be substantively overlapping transactions: Ticknovich, at para. 70. The proof of the essential of the elements of the offence relating to Woodhouse will not assist in the proof of the elements of the offences relating to Ngai. The lack of a strong factual or legal nexus weighs in favour of severance.
[33] Aside from the aforementioned discussion regarding factual and legal nexus, other factors need be considered. As mentioned, they include prejudice to the accused, the complexity of the evidence, tactical decisions about testifying, multiplicity of proceedings, amongst other factors.
[34] Recall that in Last, Deschamps J. focused on the accused’s intention to testify; the nexus between the incidents; the potential use of similar fact evidence; and the prejudice to the accused. In the final analysis, she concluded that there was little nexus between the incidents; there was little overall benefit to the administration of justice in having a single trial; and there was a significant possibility of prejudice to the accused.
[35] At para. 26 of Last, Deschamps J. observed that, it would be necessary for an accused to provide sufficient information to convey that, objectively, there is substance to his or her testimonial intention. Here, the applicant does not argue that he would be deprived of a meaningful right to elect to testify with respect to one complainant but not the other in a joint trial.
[36] Even if the accused’s stated intention is to testify on some but not all counts is objectively justifiable, this is not determinative of this application. Given the lack of a position by the applicant in this respect, I am not prepared to give this factor very much weight, if at all. In the final analysis, the resolution of this case is likely to involve, to a large extent, issues of credibility. While the accused may succeed in raising doubts as to the credibility of one complainant or the other, the decision of whether to testify or not is likely to be based on strategic considerations, and may involve factors as to whether the accused, himself, will likely be a credible witness. It is probable, in my view, that the strategic decision of whether to testify or not will involve the same considerations with respect to each of the complainants.
[37] It is necessary to return to the words of s. 591(3) of the Code, and decide whether the interests of justice require that there be separate trials rather than one trial. In Last, at paras. 26 – 42, Deschamps J. identified two significant issues. First, joinder creates the potential for cross-pollination on credibility assessments. Second, joinder creates a risk of prohibited propensity reasoning.
[38] As mentioned, the legal and factual nexus between or among the various counts, while are in my view, perhaps being either neutral at best, or favouring separate trials. Indeed, standing alone, they assume somewhat lesser import in terms of the Crown’s position that it will not be advancing a similar fact evidence application.
[39] I agree with the Crown that consolidation of counts is not unfair merely because the jury’s adjudicative function might be complicated. Appellate courts have recognized modern jury capacity, including with respect to severance of accused persons. Jurors can be entrusted to sort out counts and evidence, and are presumed to follow instructions with respect to the risk of misuse of evidence.
[40] However, in this case, I am not persuaded that severance of counts would create any serious risk of inconsistent verdicts. The fact that one jury might have a reasonable doubt on one count and not the other, does not necessarily mean an inconsistent verdict.
[41] In summary, am not persuaded that the factual nexus between the counts is significant and favours maintaining the Indictment in its current state. It is true that the payee for the offence on each count (Kadeen Fletcher in one case and “Kadeem” Fletcher in the other) appears, to the objective observer, to be the same person. The payment sought from each complainant was ordered, in nearly every instance, to be sent to the same address: 14-30 Eglinton Avenue West, Mississauga, ON. The certified cheques and bank drafts elicited from the complainants were negotiated, in nearly every instance, at the same institution: GTA Financial & Investment Corporation, 800 Steeles Avenue West, Thornhill, ON. I reiterate that the Crown is not seeking to make a similar fact evidence application in this case. The Crown concedes that the precise form of “scam” alleged to have been carried out in each case is different. I find that the facts in common between the counts to justify presenting them to the jury on one Indictment is negligible.
[42] In terms of the benefits to the administration of justice, if separate trials were held, it would not be necessary for the Crown to call all of the same witnesses at each trial. Here, the applicant has conceded and agreed that one Charter application be heard and apply to all counts in the event of severance being granted. Thus, avoiding the necessity of two voir dire hearings. I accept that this process and the limited number of witnesses required to be called by the Crown in this non-complex prosecution does not give rise to multiple proceedings with the concomitant minimization of potential unfairness to the complainants.
Conclusion:
[43] The applicant raises concerns regarding the potential for improper propensity reasoning and moral prejudice that might impact upon his fair trial rights. While potential prejudice to an accused is usually a factor favouring separate trials, I agree that the result of a joint trial in this case in the interest of a negligible factual and legal nexus would be to risk the complainants’ evidence being improperly used for the prohibited purposes.
[44] In order to prove the allegations with respect to each complainant, if severance were granted, the Crown would not need to call similar admissible evidence or a litany of witnesses for both trials.
[45] The applicant has demonstrated that there is some risk of reasoning or moral prejudice that could arise in this case. There is no reason to entertain this risk when there are at best, minimal benefits to joinder of counts. The factual issues and the surrounding circumstances are not the same and weigh in favour of severance. Further, I am persuaded that by not severing the counts, the applicant will endure prejudice that cannot be balanced with appropriate rulings as to the admissibility of evidence.
[46] For all of the aforementioned reasons, the application for severance of counts is granted.
A. J. GOODMAN, J.
Date: February 2, 2018
COURT FILE NO.: CJ9224
DATE: 2018-02-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
FREDDY MAWICK
Applicant
RULING ON APPLICATION FOR SEVERANCE
A. J. GOODMAN, J.
Released: February 2, 2018
[^1]: Antagonistic defenses between co-accused is not applicable here.