OSHAWA COURT FILE NO.: CR-18-14930
DATE: 20190906
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
Maneet Bajwa Applicant
Michael Hill, for the Crown
Sandip Khehra, for the Applicant
HEARD: August 29, 2019
RULING ON SEVERANCE APPLICATION
LEIBOVICH, J.
Overview
[1] Ms. Bajwa and Mr. Welch are jointly tried with a number of firearm offences. It is alleged that they acted in concert to improperly use Ms. Bajwa’s restricted firearm license to transfer guns to Mr. Welch. The accused are set to have a joint jury trial starting October 7, 2019. The trial is expected to last no more than three weeks. Ms. Bajwa seeks to have her trial severed from Mr. Welch. She wants to call Mr. Welch as a witness at her trial to support her defence, and at a joint trial Mr. Welch is not a compellable witness. Mr. Welch does not oppose the severance application. Counsel for Mr. Welch has indicated that he does not expect Mr. Welch to testify at trial. Counsel for Mr. Welch submitted that if severance is granted that Ms. Bajwa’s trial should proceed first. All parties agree on this point. The Crown opposes the severance application. For the reasons that follow, I agree severance should be granted.
Affidavit of Ms. Bajwa
[2] Ms. Bajwa filed an affidavit in support of her request for severance. She stated that she intends to testify at her trial and that she needs Mr. Welch to testify to support of her defence. She stated that she is prepared to have a judge alone trial and admit the Crown’s case and that her counsel has spoken with Mr. Welch’s counsel and they have an outline of Mr. Welch’s anticipated evidence. In submissions, counsel for Ms. Bajwa reiterated that he has an understanding of Mr. Welch’s evidence and it is needed to support Ms. Bajwa’s defence.
Positions of Counsel
[3] Counsel for Ms. Bajwa states that she has met her onus to show that there should not be a joint trial. Ms. Bajwa has offered significant concessions, including giving up her right to a jury trial and requiring the Crown to prove its case. There will be no added inconvenience to the Crown as the witnesses will still only have to testify once. Counsel indicated that the trial could be done well within a week. Counsel states that even though the Court does not know Mr. Welch’s proposed evidence, he does, and the Court should rely on counsel’s assessment. Counsel for Mr. Welch does not oppose the severance application and is content to have his jury trial heard after Ms. Bajwa, as long as the Court has provided reasons for judgment and he has time to discuss those reasons with his client. The Crown opposes the application on the basis that we do not know what Mr. Welch intends to say and whether it is necessary for Ms. Bajwa to make full answer and defence. In addition, the Crown states that the ruling is premature as Mr. Welch may in fact testify at trial and thus a severance motion would be unnecessary.
The Law
[4] 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, 2009 SCC 45, [2009] 3 S.C.R. 146, 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. Section 591(3) of the Criminal Code permits the trial judge to order severance of a trial from a co-accused provided the judge concludes “that the interests of justice so require”. 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.
[5] The general rule of severance is that persons accused of the joint commission of a crime should be tried together unless it can be demonstrated that a joint trial would work an injustice to a particular accused; R. v. Crawford, (1995), 96 C.C.C. (3d) 481 at 497 (S.C.C). As noted recently by the Ontario Court of Appeal in R. v. Zvolensky, 2017 ONCA 273 at para. 29 a joint trial is especially required where there is a cut-throat defence at play:
The Supreme Court of Canada reiterated the preference for joint trials in these circumstances, writing at paras. 30-31:
There exist, however, strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly. The policy reasons apply with equal or greater force when each accused blames the other or others, a situation which is graphically labelled a “cut-throat defence”. Separate trials in these situations create a risk of inconsistent verdicts.
[6] A desire by one accused to call the other co-accused as a witness at trial is a factor in support of severance that the court should consider but a mere assertion of such a desire does not make severance automatic. As stated by Doherty J. in R. v. Savoury, [2015] O.J. No. 3112 at paras. 27-29:
Where an accused seeking severance contends that his right to make full answer and defence will be prejudiced unless the co-accused can be compelled to testify, two factors must be addressed by the trial judge:
• Is there a reasonable possibility that the co-accused, if made compellable by severance, would testify?
• If the co-accused would testify, is there a reasonable possibility that the co-accused’s evidence could affect the verdict in a manner favourable to the accused seeking severance?
[7] Even if the above questions are answered in the positive, “It is nonetheless open to the trial judge to exercise her discretion against severance if there are other factors of significant cogency that outweigh the potential impairment of the accused’s right to make full answer and defence occasioned by a joint trial. An accused is entitled to a fair trial, but not necessarily the ideal trial from the defence perspective: R. v. Cross, (1996) 112 C.C.C. (3d) 410 at 419 (Que. C.A.), leave to appeal to S.C.C. refused 114 C.C.C. (3d) vi.” R. v. Savoury, at para. 29.
Analysis
[8] It is my view that it is in the interests of justice to grant the severance motion. The two accused are alleged to have acted in concert and in most situations that would require a joint trial, but given the procedural concessions proposed by Ms. Bajwa there is no prejudice to the Crown, and Ms. Bajwa and Mr. Welch’s trials can both take place in the originally scheduled three weeks.
[9] Ms. Bajwa, in her affidavit and through counsel, has asserted a desire to testify at trial and call Mr. Welch to support her defence. There is no issue that Mr. Welch would in fact testify if compelled. There is no indication of a cut-throat defence. I appreciate the Crown’s point that we do not know Mr. Welch’s proposed evidence, and in most cases that would doom the request for severance. However, counsel for Ms. Bajwa does know the proposed evidence, and based on his understanding of the evidence is prepared to advise Ms. Bajwa to forego a jury trial and admit the Crown’s case. These concessions avoid the need for the Crown to call its case twice and would allow, in the three weeks set aside for a joint jury trial, to have Ms. Bajwa’s one-week judge alone trial and a two-week jury trial for Mr. Welch, thus resulting in no cost to the administration of justice as a whole.
[10] The Crown suggests that the severance motion be deferred to after it is known whether Mr. Welch would in fact testify at the joint trial. The difficulty with this proposal is that it could cause more delay and more use of court resources. If Mr. Welch does not change his mind and he maintains his decision not to testify and the Court is of the view that severance is appropriate, then a second trial for Ms. Bajwa would have to be scheduled with no guarantee of the currently offered concessions. More court time than the allotted three weeks would be spent on the cases.
[11] Therefore, for the reasons given above, I direct that Ms. Bajwa’s trial be severed from Mr. Welch’s trial. Ms. Bajwa will be put to her re-election and after which her trial will be adjourned to Monday October 7, 2019. Mr. Welch’s trial will be adjourned to October 14, 2019.
The Honourable Justice H. Leibovich
Released: September 6, 2019
R. v. Bajwa, 2019 ONSC 5173
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Maneet Bajwa
Ruling on severance application
Justice H. Leibovich
Released: September 6, 2019