Court File and Parties

Court File No.: CR-18-1164 Date: 2020 06 11 Ontario Superior Court of Justice

Between: TRAYON JOHNSON and RICHARD IRELAND, Applicant

Counsel: M. Addie and J. Kopman, for the Applicant Trayon Johnson A. Perrin, for the Applicant Richard Ireland

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HER MAJESTY THE QUEEN, Respondent

Counsel: E. Taylor and C. Presswood, for the Respondent Crown

Heard: April 29 to June 21, 2019

Severance Application

Before: Barnes J.

Introduction

[1] Richard Ireland and Trayon Johnson are jointly charged with the second-degree murder of Mark Chavez and the attempted murder of Jackson Merizzi. This is a trial by jury. Pursuant to s. 591(3) (b) of the Criminal Code, R.S.C., 1985, c. C-46, Mr. Ireland seeks an order severing his trial from that of Mr. Johnson. The Crown opposes the application.

[2] For the reasons outlined below, Mr. Ireland’s application is dismissed.

Factual Background

[3] It is the theory of the Crown that Mr. Ireland arranged to purchase an ounce of marijuana from Mr. Merizzi. Mr. Ireland and Mr. Johnson agreed to rob Mr. Merizzi during the purchase. Thus, they agreed to participate in a joint criminal enterprise.

[4] Mr. Ireland and Mr. Johnson met Mr. Merizzi in a vehicle at the agreed time and at the agreed meeting place. Mr. Merizzi was driving and Mr. Chavez was in the front passenger seat. Mr. Ireland and Mr. Johnson entered the vehicle and sat in the rear passenger seat. Mr. Merizzi provided Mr. Ireland and Mr. Johnson with a sample of the marijuana and requested payment.

[5] According to the Crown theory, Mr. Ireland did not pay. Mr. Ireland and Mr. Johnson then tried to rob Mr. Merizzi. In response, Mr. Merizzi began to drive the vehicle around the parking lot in an erratic fashion. Mr. Ireland then handed Mr. Johnson a taser. Mr. Ireland was also in possession of a knife which he used to stab Mr. Merizzi and Mr. Chavez several times. Mr. Ireland’s actions with the knife caused several injuries to the victims, killing Mr. Chavez and almost killing Mr. Merizzi. Medical evidence has been presented to support the cause of death.

[6] According to the Crown, it was Mr. Ireland’s intent to kill the victims and that Mr. Johnson knowingly assisted him in this effort by applying the taser to Mr. Chavez and Mr. Merizzi. The Crown’s position is that Mr. Ireland participated in the joint criminal enterprise as a principal, as described in s. 21(1) (a) of the Criminal Code, and that Mr. Johnson aided Mr. Ireland and is liable as an aider, pursuant to s. 21(1)(b) of the Criminal Code.

[7] Mr. Merizzi has testified in a manner consistent with the Crown’s theory. Mercedes, Mr. Johnson’s former girlfriend, has told the jury that Mr. Johnson told her that he went with Mr. Ireland to purchase marijuana in order to help Mr. Ireland with the robbery.

[8] Mr. Ireland has conceded that he stabbed the victims, but says that he did not have the intent to kill any of the victims. Mr. Ireland has pleaded guilty to manslaughter with respect to Mr. Chavez.

[9] Upon his arrest, Mr. Johnson provided a statement to the police. At the end of the Crown’s case, Mr. Johnson brought an application for admission of this prior consistent statement under the Edgar exception to the general prohibition against the admission of a prior consistent statement. I have ruled that the statement shall be admitted under the Edgar exception. The jury shall be instructed on its use and will decide what weight to give it.

[10] In the statement, Mr. Johnson denied telling Mercedes that he and Mr. Ireland planned to rob Mr. Merizzi. Mr. Johnson told police that he and Mr. Ireland rode bicycles to the agreed meeting place. Mr. Thompson and Mr. Langaigne, two friends of the accused, accompanied them on foot. Upon arrival, Mr. Johnson and Mr. Ireland left the bicycles and entered Mr. Merizzi’s vehicle. Mr. Thompson and Mr. Langaigne took over the bicycles. He said neither he nor Mr. Ireland had any intention to rob or kill any of the victims.

[11] Mr. Johnson told police that Mr. Ireland delayed payment for the marijuana to Mr. Merizzi. Mr. Merizzi then began to drive the vehicle erratically. This led to an altercation in the vehicle. During the altercation, Mr. Ireland gave Mr. Johnson a taser. Mr. Ireland also produced a knife. Mr. Johnson did not know Mr. Ireland had a knife. He told Mr. Ireland not to use it, but Mr. Ireland used the knife to stab Mr. Merizzi and Mr. Chavez. Mr. Johnson also told police that he used the taser to dislodge Mr. Chavez’s grip on his hand.

[12] Mr. Johnson told police that at some point, Mr. Ireland was able to remove the car key from the ignition which brought the car to a stop. Mr. Langaigne and Mr. Thompson had remained in the vicinity of the parking lot. One of them helped open a rear passenger door. Mr. Johnson and Mr. Ireland were then able to exit the vehicle. All four of them fled the scene.

[13] In his statement, Mr. Johnson said that Mr. Ireland threatened to kill anyone who disclosed what had happened. Mr. Johnson told police that he was scared. He also told the police he was scared of what would happen to him in jail. He was also scared of Mr. Ireland. Mr. Johnson then described some prior discreditable conduct of Mr. Ireland which, on consent, will be excised from the statement the jury will hear.

[14] In his statement to the police, Mr. Johnson initially denied any knowledge or involvement in the incident. He appeared scared and manipulative and was dishonest on several occasions.

Issue

[15] The issue on this motion is whether it is in the interests of justice to sever Mr. Ireland’s trial from that of Mr. Johnson.

The Applicable Law

[16] A joint trial may be severed if it is in the interests of justice to do so: Criminal Code, s. 591(3). The term “interests of justice” does not mean what is in the best interests of the accused or is most advantageous to the accused. Consideration of the interests of the prosecution is also an important component of the analysis: R. v. Zvolensky, 2017 ONCA 273, at para. 251.

[17] The decision to grant severance is determined by balancing the accused’s right to a fair trial, which includes the “right to be tried on the evidence admissible against him”, and the public’s interest in ensuring that “justice is done in a reasonably efficient and cost-effective manner”: R. v. Last, 2009 SCC 45, [2009] 3 S.C.R 146, at para. 16; Zvolensky, at para. 17. A decision to grant severance is discretionary and is subject to deference unless the decision would result in a miscarriage of justice: R. v. Litchfield, [1993] 4 S.C.R. 333, at p. 354.

[18] Juries are presumed to listen to, understand, and follow jury instructions: R. v. Hamilton, 2011 ONCA 399, at para. 214. These instructions “should ensure jurors understand any limitations the law imposes on the use of evidence of limited admissibility”: Zvolensky, at para. 255. In joint trials, severance is granted in circumstances where a joint trial will cause an injustice to an accused that cannot be cured by limiting instructions: R. v. Crawford, [1995] 1 S.C.R. 858, at paras. 30-31; Hamilton, at paras. 214, 218; Zvolensky, at paras. 29-31.

[19] There is a presumption that persons accused of committing a crime together shall be tried jointly. This presumption is not displaced simply because the co-accused are blaming each other (i.e. running a “cut-throat” defence). Reasons for the presumption include concerns of efficiency, such as the extra cost and delays of separate trials, and the risk that separate trials will result in inconsistent verdicts: Crawford, at paras. 30-31. In the search for the truth, one of the fundamental premises of criminal trials is for the truth of an allegation to be tested “through a process which requires the accuser to confront the accused with the allegation and gives the accused a chance to respond to the allegation”: R. v. Suzack, [2000] O.J. No. 100 (C.A.), at para. 88. In circumstances where accused persons are blaming each other, it is highly unlikely that either jury will get the complete picture in separate trials: Suzack, at para. 88; Zvolensky, at para. 33.

Discussion

a) Position of the Parties

[20] Mr. Ireland requests severance on the basis that in his statement, Mr. Johnson refers to him by name approximately 150 times and expresses his fear of Mr. Ireland. Counsel for Mr. Ireland notes that despite the agreement among counsel that references to Mr. Ireland’s prior discreditable conduct will be excised from the statement, the prejudicial impact of the statement on Mr. Ireland’s right to a fair trial cannot be alleviated by any jury instruction.

[21] Counsel for Mr. Johnson took no position on the application, except to state that should severance be granted, it was Mr. Johnson’s desire that the trial against him continue. Mr. Johnson expressed concern about any delay caused by a declaration of a mistrial if a severance order was granted.

b) Analysis

[22] Mr. Johnson is running a cut-throat defence. In his statement, he has placed the knife in Mr. Ireland’s hands and said that Mr. Ireland stabbed the victims. Mr. Ireland has conceded that he had the knife in his hand and that he stabbed the victims. He has pleaded guilty to manslaughter, signaling that he did not have the intent to kill Mr. Merizzi or Mr. Chavez. Thus, the case against Mr. Ireland is not weak and the case against Mr. Johnson is not any stronger.

[23] As per my decision on Mr. Johnson’s Edgar application, the jury will be instructed that Mr. Johnson’s statement is only admissible against him, not Mr. Ireland. It is admissible not for the truth of its contents, but for the purpose of assessing only the credibility of Mr. Johnson: Edgar, at para. 72. The jury will also be told that Mercedes’ statement alleging that Mr. Johnson told her that a robbery was planned is only admissible against Mr. Johnson. In this case, any dangers arsing from the joint trial can be effectively addressed by proper jury instructions.

[24] In addition, Mr. Johnson’s statement is hardly a “slam dunk” as an exculpatory statement. He appears scared, but is also very dishonest and manipulative. In fact, his manipulation is so apparent that it is open to the jury to conclude that Mr. Johnson was simply not being truthful. Counsel for Mr. Ireland will have ample opportunity and material to seriously challenge Mr. Johnson’s credibility.

[25] The admission of Mr. Johnson’s statement is premised on him taking the witness stand in his defence. However, Mr. Johnson’s decision to testify is not premised on the admissibility of the statement. He intended to testify regardless of my ruling on its admissibility, so the jury was going to hear Mr. Johnson’s version of the events with or without the statement.

[26] As I have previously described, the evidence against Mr. Ireland is not substantially weak and the case against Mr. Johnson is not substantially stronger. Therefore, there is no greater risk “that the jury will resort to the impermissible reasoning of guilt by association to shore up the case” against Mr. Ireland: R. v. Welsh, 2013 ONCA 190, at para. 182. Such a factor may tip the balance towards severance.

[27] Further, the application for severance was brought after the Crown’s case and after Mr. Johnson’s Edgar application. A severance order will require witnesses who have previously testified to testify again. A severance order will cause unnecessary delay in the trial of Mr. Ireland.

[28] Therefore, I am not satisfied that a trial of Mr. Johnson can continue without Mr. Ireland. In the face of Mr. Johnson’s cut-throat defence, the juries in two separate trials may be derived of an opportunity to hear and assess the complete picture. It is therefore not in the interests of justice to severe Mr. Ireland’s trial from that of Mr. Johnson.

Conclusion

[29] For these reasons, Mr. Ireland’s application for severance is dismissed.

“Original signed by Justice Barnes”

Justice K. Barnes

Released: June 11, 2020