Court File and Parties

Barrie Court File No.: CR-18-145-00MO Date: 2019-04-04 Ontario Superior Court of Justice

Between: Her Majesty The Queen, Respondent – and – Justin Fabbro and Stephen Stadnik, Applicants/Accuseds

Counsel: Kathryn Hull, for the Crown Michael Lacy, for the Applicant/Accused, Justin Fabbro

Heard: March 25, 2019

Reasons for Decision

DiTomaso J.

The Application

[1] The applicant, Justin Fabbro (“Fabbro”), brings this application for an order severing his charges from his co-accused, Stephen Stadnik (“Stadnik”), and for a separate trial.

Summary of the Facts

[2] The following facts are not disputed.

[3] Fabbro and his co-accused Stadnik are charged with a number of offences in relation to the two handguns located in the truck driven by Stadnik. Fabbro was a passenger in that truck. They are additionally charged with possession of methamphetamine and fentanyl for the purpose of trafficking and possession of proceeds of crime over $5,000.

[4] On October 30, 2017, Sgt. Pileggi pulled Stadnik over for speeding. Fabbro was in the passenger seat. When Sgt. Pileggi asked Stadnik for his vehicle documentation, Fabbro opened the glove box of the truck where the officer observed a glass pipe. Sgt. Pileggi went from the driver’s side to the passenger’s side and noticed another glass pipe with residue on the floor of the truck. Stadnik told the officer that the truck was a rental.

[5] Sgt. Pileggi arrested Stadnik for possession of a controlled substance. Sgt. Pileggi did not give Stadnik his rights to counsel at that time. Instead, Sgt. Pileggi searched Stadnik and located a brown substance in a ziploc bag, another glass pipe and $2,725 in his pockets. When the officer seized the brown substance and the glass pipe from Stadnik, Stadnik said, “Oh, what’s that?” Sgt. Pileggi placed Stadnik in his cruiser and then arrested Fabbro. Sgt. Pileggi handed Fabbro off to PC Gagnon who had just arrived on scene with PC Hitch.

[6] Sgt. Pileggi continued to search the vehicle and observed a black handgun in the rear seat. Then he went to Stadnik who was in the back of his cruiser, told him that he found a handgun and gave him his rights to counsel. Stadnik responded, “It’s not mine”, “Listen officer, the guns are in the case and they are Justin’s, they are in the case.” Sgt. Pileggi subsequently gave Fabbro his rights to counsel as well.

[7] Sgt. Pileggi returned to the truck and continued searching. He found a second loaded black handgun in the rear seat along with a magazine with another 9 rounds. He also found a black bag with an eye glass case which had a clear plastic bag with a crystal substance; a small bag with pink pills inside; a black pack sac with a green plant and several bags of white powder, a brown substance and a pill; and a black book with names and amounts of cash owing.

[8] Sgt. Pileggi also found a black case and spoke to Stadnik about getting a warrant to open the case or break it open. Stadnik said the safe and its contents were his personal property and that he would open it for the officer if he was going to break it. After Stadnik opened the case, the officer seized $34,400 in cash from the safe.

[9] Stadnik had rented the truck from a rental company in Sault Ste. Marie since July 28, 2018 – 3 months prior to the arrest.

[10] The Crown adds the following facts.

[11] As Sgt. Pileggi approached the passenger side of the vehicle, he observed the passenger make a motion with his right hand, apparently throwing something into the rear of the cab where the .40 caliber handgun was later located.

[12] A round of .40 caliber ammunition was located by police in the passenger side door handle.

[13] No drugs were found in the safe.

[14] Stadnik does not make any statement claiming in any way that he is responsible for the drugs found in the vehicle.

Anticipated Evidence at Trial

[15] It is anticipated that the evidence at trial will show that Fabbro was licenced to possess firearms, including restricted firearms such as the ones found in the vehicle in which he was a passenger. There will be evidence at trial to the effect that Stadnik did not have the right to possess restricted firearms.

[16] The Crown states that the evidence at trial will also be that Fabbro attempted to have both the .40 caliber and .22 caliber handguns transferred into his name on October 20, 2017 and that the transfer request was in progress on October 30, 2017, the date Fabbro was found with the handguns.

[17] Further, the Crown states that the evidence at trial will include expert evidence establishing the presence of drugs of the nature and quality found supports the conclusion that those in possession of them had them for the purpose of trafficking. An expert will also be called by the Crown at trial who will be able to establish that the handguns meet the definition of firearms under the Criminal Code and who can speak to the ammunition found.

The Issue

[18] The issue on this application is whether Fabbro should be severed from his co-accused Stadnik and tried separately.

Position of the Parties

Position of Fabbro

[19] Fabbro seeks to be tried separately from Stadnik on the basis that it is in the interests of justice to do so for three reasons:

(a) Stadnik has substantive evidence to offer that will exculpate Fabbro in relation to the drug and proceeds of crime charges as he will take ownership of the drugs and the contents of the safe if compelled to testify as a witness by Fabbro, which Fabbro cannot do at a joint trial;

(b) The evidence against Stadnik is significantly more compelling than the case against Fabbro which increases the risk of impermissive “guilty by association” evidence; and,

(c) The Crown has taken the position that they will seek to introduce Stadnik’s exculpatory statement (that the firearms were Fabbro’s) as evidence against Standik at the trial even though it is not evidence against Fabbro. While this statement is not admissible against Fabbro, there is a risk that the jury may use this statement improperly against Fabbro.

[20] Fabbro submits the application be granted.

Position of the Crown

[21] Regarding Stadnik’s firearms statement, the Crown submits Stadnik’s firearm statement will not tip the balance one way or the other. When combined with the appropriate jury instruction and in the face of overwhelming evidence of control by Fabbro, the risk of wrongful conviction is greatly reduced.

[22] Regarding Stadnik’s safe statement, the Crown submits this statement is not overwhelmingly exculpatory of Fabbro, where there is other evidence that could lead a jury to conclude that Fabbro is a party. Ownership of the safe is less relevant.

[23] Other factors support a joint trial. If Fabbro is unable to call Stadnik with the exculpatory statement favouring Fabbro, then the court must balance other factors to support a joint trial.

[24] The Crown submits the application be dismissed.

Analysis

[25] The Crown is seeking to introduce Stadnik’s utterances (statements) namely:

(a) That the guns were in a case and belonged to Fabbro; and,

(b) That the safe and its contents were Stadnik’s personal property.

[26] Fabbro submits that his co-accused, Stadnik, is opposed to the admission of his utterances on the basis of voluntariness and ss. 10(a) and (b) Charter breaches. If utterance (a) is not excluded, although Fabbro submits the utterance is no evidence against him, the jury will obviously rely on the same in adjudicating Fabbro’s guilt.

[27] If utterance (b) is excluded, Fabbro will not be able to rely on the utterances in support of his defence. In any event, whether the utterance is excluded or not, Fabbro seeks to adduce the evidence of Stadnik to substantiate his position that he (Fabbro) had no knowledge of the drugs or the proceeds of crime that Stadnik was transporting.

The Law on Severance

[28] Pursuant to s. 591(3)(b) of the Criminal Code, the court has the discretion to order separate trials for co-accused where severance would be in the interests of justice. Trial judges enjoy broad discretion to order severance on this basis where a joint trial would result in an injustice to one of the co-accused [1]. The onus is on the accused to show on a balance of probabilities that the interests of justice require severance [2].

[29] In R. v. Last [3], the Supreme Court of Canada stated that the trial judge enjoys a broad discretion in deciding whether to grant a severance, such discretion to be exercised always keeping in mind the interests of justice as the guiding principle. The court must balance and weigh factors to ensure that, as far as reasonably possible, both the public and the accused receive a fair hearing. The issue for this court must come down to protecting the truth-seeking function of the trial.

[30] Among the factors to be considered in determining the interests of justice are:

(a) General prejudice to the accused;

(b) The legal and factual nexus between the counts and, in this case, between the counts against each accused;

(c) The complexity of the evidence;

(d) Whether the accused intends to testify on one count but not another, beyond a vague intention;

(e) The danger of inconsistent verdicts;

(f) The desire to avoid a multiplicity of proceedings;

(g) The length of the trial; and

(h) The potential prejudice to the accused’s right to be tried within a reasonable time [4].

The Principles Applied

[31] General prejudice to Fabbro arises because of two statements made by his co-accused, Stadnik, and because of Stadnik’s potential to give exculpatory evidence.

[32] However, Fabbro’s trial is in its early stage. The two statements might be admissible, and if admitted or not, might occasion prejudice. However, no voir dires have been held and no rulings have been made. I accept the Crown’s submission that there is no current basis for assuming that, if called, Stadnik will exculpate Fabbro. In fact, the opposite might be concluded from the fact that Stadnik seeks to exclude any statement implying he accepts sole responsibility for the evidence found in the vehicle.

[33] Fabbro would have to convince this court that there is a reasonable possibility that Stadnik will testify and that his testimony could affect the verdict. I agree with the Crown’s submission that it is far from certain that Stadnik would take ownership of the money in the safe as that would put him at grave risk of being convicted of not just the possession of the drugs, but of possession for the purposes of trafficking [5].

The Guns Statement

[34] The first statement that was made by Stadnik to Sgt. Pileggi about the guns belonging to Fabbro was made post-Charter rights to counsel, but before any meaningful opportunity to exercise those rights. According to the Crown, it is not likely to be admitted. It has very limited value to the Crown, in any event, on the issue of Stadnik’s knowledge of the guns. Stadnik had rented the vehicle, was driving it and his property was in the back with the guns. It is apparent that there is an abundance of evidence aside from the statement from which a jury could find that Stadnik knew about the guns.

[35] Even if the statement were to be admitted, the jury would not be able to use the statement against Fabbro. Besides the fact that the statement is not particularly credible or compelling, the jury would be instructed not to consider it in relation to Fabbro and there is a presumption they would follow that instruction.

[36] I find the potential prejudice to Fabbro from the potential misuse of the statement is considerably lessened by the presence of other evidence from which the jury could find that Fabbro participated in the firearms offences; for example, he was seen apparently throwing something into the back seat area of the truck in which one of the handguns was found, ammunition for that handgun was found at his elbow and accessible to him, he was licenced to possess not just firearms, but restricted firearms and he was attempting to register the handguns in his name. I accept the Crown’s submission that there is no reason to think a properly instructed jury would take any notice of the statement, let alone use it to convict. The overwhelming evidence that Fabbro possessed the firearms makes the case against him just as strong as against Stadnik.

The Safe Statement

[37] The second statement relates to Stadnik taking ownership of the safe and its contents (not the drugs). The Crown submits that statement, also predating an opportunity to exercise the right to counsel, is equally likely to be excluded. However, the evidence will be that Stadnik opened the safe. There were no drugs found in the safe. The drugs were all over the vehicle, including at Fabbro’s feet and in the glove box he opened, which could put him in joint possession of the drugs. There will be expert evidence that the drugs were possessed for the purposes of trafficking. If that evidence is accepted, Fabbro could be found a party to possession of the proceeds in the safe. I find that Stadnik’s technical ownership of the contents of the safe becomes much less exculpatory for Fabbro when placed in the context of all the evidence.

The Last Factors

[38] Even if Fabbro had an argument on the basis of the potential for Stadnik to testify, I accept the Crown’s submission that is not the end of the matter. It is nonetheless open to this court to exercise its discretion against severance if there are other factors of sufficient cogency that outweigh the potential impairment of Fabbro’s right to make full answer and defence. I acknowledge that Fabbro is entitled to a fair trial. However, I find the Last factors strongly favour a joint trial as follows:

a. Nexus Fabbro and Stadnik are totally entwined in time, place, the evidence and their interaction with the police. I agree with the Crown’s submission that separate trials would involve leaving a woefully and bewilderingly incomplete picture with each jury. This is especially so as each accused is potentially liable as a party if the other is found guilty of the principle offence. Separating the trials has the potential to work a great unfairness to the juries and to the truth-seeking function of the trial.

b. Complexity The fact scenario is not complicated in this case, but with the addition of expert evidence and the legal issues arising from party liability, the law of possession and proceeds, this trial becomes fairly complex and will require a carefully crafted charge from the trial judge. Two trials exacerbate the complexity.

c. The Accused’s Intention to Testify No evidence has been proffered that this factor is in play.

d. Inconsistent Verdicts Inconsistent verdicts are a distinct possibility if the trial were severed. Each trial judge would have to make findings with respect to possession of any of the items found, as well as party liability. Multiple inconsistent findings could well result, occasioning successful appeals and re-trials [6].

e. Multiplicity of Proceedings Currently two weeks of trial time are required for this trial. Obviously, separate trials double the time required.

f. 11(b) At present, each accused will have his trial within a reasonable time. Separate trials jeopardizes these rights for at least one of the accused. Fabbro proposes that Stadnik sacrifice his rights. The public has a right to have these very serious charges heard on their merits and the risk of a stay on one of the accused ought to be avoided [7].

[39] I find that a careful balancing of all these factors requires that Fabbro and Stadnik be tried together.

Conclusion

[40] For these reasons, I find Fabbro has failed to establish on a balance of probabilities that the interests of justice requires severance. Accordingly, it is not in the interests of justice to sever Fabbro’s charges from his co-accused, Stadnik. Also, it is not in the interests of justice to grant Fabbro a separate trial. Fabbro’s application is hereby dismissed.

Mr. Justice G.P. DiTomaso

Released: April 4, 2019

[1] R. v. Suzack, [2000] O.J. No. 100 at para. 85 (Ont. C.A.). [2] R. v. Ommen, [2009] O.J. No. 1994 at para. 8 (S.C.J.). [3] R. v. Last, 2009 SCC 45, [2009] S.C.J. No 45 (SCC), at paras. 16-17, 21. [4] R. v. Last, supra, at paras 18 and 27. [5] R. v. Arviko, [2014] O.J. No. 5714 (S.C.J.) at paras. 25 – 26. [6] R. v. Arviko, supra, para. 31. [7] R. v. Arvika, supra, at paras. 25, citing R. v. Cross, [1996] J.Q. No. 3761 (Que. C.A.).