Court File and Parties

Court File No.: CR-18-14816 Date: 2019-07-16 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Ryan Shepherd, Defendant

Counsel: Nicholas Frid, for the Federal Crown Hubert Gonzalez, for the Defendant

Heard: July 11, 2019

Before: LEIBOVICH, J.

Ruling on Severance Motion

[1] Ryan Shepherd is charged with four counts of drug trafficking related offences. His trial is set to start on July 22, 2019. An application has been brought to sever counts 3 and 4 from counts 1 and 2 and a second application to further sever count 4 from 3. Counts 1 and 2 deal with an allegation of trafficking cocaine that is to have occurred on March 17, 2017. Count 3 deals with another allegation of trafficking cocaine that is to have occurred on March 29, 2017, while count 4 deals with an allegation of possessing cocaine for the purposes of trafficking, to have occurred on March 30, 2017. For the reasons that follow, I agree that counts 3 and 4 should be severed from counts 1 and 2, but counts 3 and 4 should not be severed from each other and should be tried together. The trial on counts 1 and 2 shall commence on July 22, 2019.

Factual Background for the Severance Application

[2] Mr. Shepherd was committed to stand trial on all four counts after a preliminary inquiry. A certiorari application to quash the committal on counts 3 and 4 was dismissed. An appeal of the dismissal of the certiorari is still outstanding. The factual basis for the allegations is set out below.

Allegations relating to Counts 1 and 2

[3] It is alleged that on March 3, 2017, officers of the Drug Enforcement Unit began an investigation into a person of interest named Johnathan Fielding, who they believed was selling cocaine in the Region of Durham. On March 7, 2017, an undercover officer called Mr. Fielding and arranged to purchase 1.75 grams of cocaine for $130. The undercover officer met Mr. Fielding at 100 White Oaks, Whitby, Ontario, and completed the transaction. On March 17, 2017, the undercover officer contacted Mr. Fielding again and agreed to purchase 1.75 grams of cocaine for $140. The officer attended Mr. Fielding’s address of 1680 Victoria Street West in Whitby, Ontario, to conduct the transaction. Upon entering the residence, the undercover officer provided Mr. Fielding with $140 of police pre-recorded buy money. Mr. Fielding advised that he was “waiting for his supplier.” Eleven minutes later, it is alleged that Mr. Shepherd arrived. Mr. Shepherd passed three bags of what appeared to be cocaine to Mr. Fielding and Mr. Fielding passed one of these bags to the undercover officer. The officer also observed Mr. Fielding pass a quantity of cash to Mr. Shepherd. The substance in the bag later tested positive for cocaine.

Allegations relating to Counts 3 and 4

[4] It is alleged that on March 29, 2017, the same undercover officer started engaging Mr. Fielding about conducting another drug transaction. Mr. Shepherd was seen arriving at Mr. Fielding’s address at 7:02 pm. At 7:38 pm a purchase of seven grams of cocaine for $520 was confirmed via text messaging. At 7:57 pm Mr. Fielding was observed leaving his residence. At 8:21 pm, the deal between the undercover officer and Mr. Fielding occurred. At 8:56 pm, Mr. Fielding returned to his residence and at 9:18 pm Mr. Shepherd was observed leaving Mr. Fielding’s residence. Mr. Shepherd was arrested a few minutes later. It is alleged that he was found with $500 of pre-recorded buy money, which had been provided to the undercover officer earlier that day. At 1:10 am on March 30, 2017, the Durham Regional Police Service Drug Enforcement Unit executed a Controlled Drugs and Substances Act search warrant at the registered address of Ryan Shepherd, 3 Somerset Drive in Whitby, Ontario. Officers entered the residence by using a key seized from Mr. Shepherd when he was arrested. Officers entered Ryan Shepherd’s locked bedroom by forced entry. A Notice of Trial with Mr. Shepherd’s name on it was found in the bedroom, and the officers verified that the keys in police possession fit the lock on the door to the bedroom, and to the front door of the residence. The officers discovered and seized two safes in the bedroom. One safe contained a bag of cocaine containing 3.1 grams, a bag of cocaine containing 5.8 grams, drug packaging, a scale, and a mixing bowl with a spoon.

Positions of Counsel

[5] Defence and Crown counsel both submit that the factors set out in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146 support their respective positions for and against severance.

[6] Defence counsel submits that the Crown’s case regarding the March 17th transaction is much stronger than its case regarding the March 29th transaction and that he has an objective basis to assert that Mr. Shepherd would testify with respect to counts 3 and 4 but not counts 1 and 2. A joint trial would prejudice Mr. Shepherd because he would not be able to testify and provide an explanation with respect to counts 3 and 4 as he would be cross-examined on counts 1 and 2. In addition a jury that hears about the allegations with respect to the March 17th transaction would automatically jump to the conclusion that he was the supplier for the March 29th transaction and this cannot be cured by a jury instruction. Defence counsel further submits that there is no cross count similar fact application and while it is the same undercover officer for both transactions the Crown is not relying on any of the evidence from the March 17th transaction to prove the March 29th transaction. Finally, defence counsel asserts that if severed he would re-elect judge alone for counts 1 and 2 and judge and jury for counts 3 and 4.

[7] With respect to severing counts 4 from 3, Defence counsel agrees that its case is not as compelling since Mr. Shepherd plans to testify with respect to both those counts. However, Defence counsel submits that even having those two counts together would force the jury to engage in propensity reasoning.

[8] Crown counsel submits that this is not a complex case and that a jury can be properly cautioned about the permissible and impermissible uses of the evidence. There is a factual nexus and it would be odd for the jury to hear about the March 29th allegation without the background. There is a need to avoid a multiplicity of proceedings. If severed, a number of police witnesses will have to testify twice. There is no rational basis for Mr. Shepherd to testify on one transaction and not the other. The Crown is not bringing a cross count similar fact application and is not relying on the evidence from the March 17th transaction to prove the March 29th transaction but with respect to counts 3 and 4 there is an evidentiary overlap as the key found upon Mr. Shepherd when he was arrested on March 29th is relevant to prove possession for the March 30th seizure.

The Law

[9] The parties agree on the applicable law and simply differ on how it should be applied to this case. The relevant principals are set out in R. v. Last, R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, and very recently in R v. Durant, 2019 ONCA 74, 144 OR (3d) 465.

[10] Section 591(3)(a) of the Criminal Code permits the trial judge to order that Mr. Shepherd be tried separately on one or more of the counts provided the judge concludes "that the interests of justice so require". Orders for severance are discretionary, and while section 591(3)(a) does not state what factors a trial judge should consider in the exercise of their discretion, the case law has developed a number that should be contemplated. As stated in R. v. Durant at paras. 72-73:

In general terms, the phrase "interests of justice" endeavours to balance an accused's interest in being tried on evidence properly admissible against him or her and society's interest that justice be done in a reasonably efficient and cost-effective manner: Last, at para. 16; Jeanvenne, at para. 28.

Over time courts have added content to the ubiquitous phrase "interests of justice" as it appears in s. 591(3)(a). They have done so by designating a number of factors as worthy of consideration in determining where the interests of justice lie in any factual matrix, but counselling against the dispositive influence of any specific factor. Illustrative of the factors are these:

I. general prejudice to the accused as a result of the influence of the volume of evidence adduced and the effect of verdicts across counts; II. the legal and factual nexus between or among counts; III. the complexity of the evidence; IV. the desire of the accused to testify on one or more counts but not on another or others; V. the possibility of inconsistent verdicts; VI. the desire to avoid a multiplicity of proceedings; VII. the use of evidence of similar acts; VIII. the length of trial; IX. prejudice to the accused's right to be tried within a reasonable time; and X. the existence or likelihood of antagonistic defences.

See, Last, at para. 18; Jeanvenne, at para. 29.

[11] A key factor stressed in this case is the accused’s desire to testify with respect to one or more counts but not others. There must be a rational basis for the assertion. The relevant strength of the Crown’s case amongst the counts is a factor to consider in deciding if there is a rational basis. Guidance has again been provided in R. v. Durant at para. 75:

As a general rule, an accused's asserted desire to testify on one or more counts but not on another or others is accorded substantial weight in the severance analysis. But it must be more than a mere assertion. To give substance to the claim requires that there be some objective reality to it based on the evidence reasonably anticipated at trial. This factor is not dispositive and may be overpowered by other factors: R. v. Steele, 2006 BCCA 114, 206 C.C.C. (3d) 327, at paras. 15-16, affirmed on other grounds, 2007 SCC 36, [2007] 3 S.C.R. 3. Included among those countervailing factors is any significant disproportion in the strength of the Crown's case as between or among counts: Steele, at para. 16.

Analysis

[12] In my view, having considered all of the factors, counts 3 and 4 should be severed from counts 1 and 2. The Crown is not relying on the evidence from the alleged March 17th transaction to prove the alleged March 29th transaction. There is no similar fact application. There is no legal nexus between the two transactions. Given the nature of the evidence, there is no risk of inconsistent verdicts. Critically, there is a rational basis for Mr. Shepherd’s desire to testify with respect to the March 29th (and March 30th) incident(s) and not the March 17th transaction. It is admitted by both Crown and Defence that the Crown’s case with respect to the first transaction is stronger than the second transaction. In addition, the nature of the two cases are different, with the Crown relying on direct evidence to prove the first one and circumstantial evidence to prove the second one. In my view, the different defence strategies with respect to the two transactions makes perfect sense given the nature of the evidence.

[13] I appreciate Crown counsel’s submission that this is not a complex case and that factually the two transactions are linked and that the jury hearing the March 29th transaction will feel that they are missing part of the story. However, these hurdles can be overcome at the second trial by providing the jury with general background information regarding how the police decided to contact Mr. Fielding. While a few police officers (two or three) may have to testify twice, the overall amount of court time will unlikely be increased given the anticipated different modes of trial. There are also no Jordan concerns with these proceedings, and Mr. Shepherd does not intend to raise 11(b).

[14] In my view, a consideration of all the factors do not support Mr. Shepherd’s request to sever count 3 from 4. Mr. Shepherd anticipates testifying with respect to both counts and currently seeks a jury trial with respect to both counts. The Crown will be relying on the key found on Mr. Shepherd when he was arrested on March 29th (count 3) to support its case that he was in possession of the drugs that were found on March 30th (count 4). Severing these two counts would create an unnecessary multiplicity of proceedings for no sound reason. The trial judge can properly instruct the jury on the appropriate uses of the evidence led at trial and can ensure that the jury does not engage in inappropriate propensity reasoning.

Disposition

[15] Counts 3 and 4 will be tried together but severed from a trial on counts 1 and 2. The trial on counts 1 and 2 will commence on July 22, 2019.

The Honourable Justice H. Leibovich Released: July 16, 2019