Court File and Parties

COURT FILE NO.: 19-R1941

DATE: 2020/09/08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Praxicedes Khaleya Chiveli, Applicant -and- Her Majesty the Queen, Respondent

BEFORE: A.E. London-Weinstein J.

COUNSEL: Melanie Lord, for the Applicant Siobhan Wetscher and Julien Lalande, for the Crown

HEARD: August 28, 2020

Publication Ban

Pursuant to section 517 (1) of the Criminal Code, an order issued prohibiting the publication in any document or broadcast or transmission in any way of the evidence taken, the information given, or the representations made, and the reasons issued, on this application. This prohibition applies until either the accused is discharged at a preliminary inquiry or his trial ends. This prohibition excludes excluding publication in Quicklaw or dissemination to judges and counsel.

Ruling on Severance Application

[1] The Applicant is charged jointly with Juteah Downey and Amber Lee Brown with offences related to human trafficking. Mr. Downey is also charged with assaulting, exploiting, and procuring in relation to charges in which Ms. Chiveli is the complainant. Ms. Chiveli is scheduled to testify against Mr. Downey in a trial to be held subsequent to this trial.

[2] The Applicant seeks severance from Mr. Downey and Ms. Brown on the following basis:

1. To compel the Applicant to stand trial for six weeks with her alleged victimizer would be unjust and would further victimize her.
2. The Applicant will be restricted in her ability to testify in her own defence in the presence of Mr. Downey.
3. The Applicant intends to call Mr. Downey as a witness in her defence, which would be impossible if they remain co-accused.
4. The Applicant intends to use Mr. Downey’s criminal record which contains a previous entry for human trafficking, as evidence of his experience in a human trafficking enterprise and his ability to exercise control and manipulation over his victims.
5. The evidence against Mr. Downey is substantially stronger. The Applicant argues that there is real potential for a jury to convict the Applicant based on the evidence against Mr. Downey if the jury engages in guilt by association reasoning.
6. There are 23 counts on the indictment. Mr. Downey is named in all of the counts, but the Applicant is only named in 13 counts.
7. The Applicant wishes to elect trial by judge alone, but Ms. Brown has elected trial by judge and jury which will result in a later trial date and a longer trial.

[3] Severance may be granted where the interests of justice so require. R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193 (Ont. C.A.), para 119. The interests of justice encompass those of the accused, the co-accused and the community as represented by the prosecution. R. v. Savoury (2005) 200 C.C.C. (3D) 94 (Ont. C.A.), para 22.

[4] In order for severance to be granted, I must be satisfied on a balance of probabilities that failure to grant severance will work an injustice to a particular accused person. R. v. Crawford; R v. Creighton, [1995] 1 S.C.R. 858, at paras 30-31.

[5] I also must bear in mind the fact that the Supreme Court has indicated that there are strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly.

[6] In R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146 the Court described the weighing exercise which should be employed in determining whether severance should be granted. The court must strike an appropriate balance between the risk of prejudice to the accused and the public interest in a single trial. (Last, para 17).

[7] In Last, the Court provided a non exhaustive list of factors to be considered including:

i. General prejudice to the accused; ii. Legal and factual nexus between counts; iii. Complexity of evidence; iv. Whether the accused tends to testify on one count, but not another count; v. The possibility of inconsistent verdicts; vi. The desire to avoid a multiplicity of proceedings; vii. The use of similar fact evidence at trial; viii. The length of the trial having regard to the evidence being called; ix. Potential prejudice to the accused with respect to the right to be tried within a reasonable time; and x. Existence of antagonistic defences.

[8] The Applicant argues that her situation is unique in that she is both an alleged victim of Mr. Downey, and also co-accused with him in this trial. The Applicant argues that forcing her to attend a six week trial with Mr. Downey will further victimize her. She further argues that she will be unable to testify in her own defence if Mr. Downey is present.

[9] This case is somewhat unusual in that the Applicant is both the co-accused and the alleged victim of Mr. Downey. I am not satisfied that there is a sufficient evidentiary basis to grant severance on the basis of the Applicant’s assertion in her affidavit that she cannot be in the courtroom with Mr. Downey due to his victimization of her, and that she will also be unable to give her evidence.

[10] I have considered, without deciding, that it may be a potential breach of s.7 of the Charter if the Applicant were unable to communicate her evidence due to the fact that Mr. Downey has allegedly victimized her in the past rendering her unable to testify in his presence. However, the record before me is inadequate to make that determination. The mere assertion by the Applicant that she cannot testify in the presence of Mr. Downey is insufficient. Further, the Crown has suggested that testamentary aids which are normally relied upon by complainants in these types of cases could be relied on by the Applicant in order to facilitate the receipt of her evidence.

[11] Section 486.2(2) of the Criminal Code reads:

“Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice…..(3) In determining whether to make an order under subsection (2), the judge or justice shall consider (a) The age of the witness; (b) the mental or physical disabilities of the witness, if any; (c) the nature of the offence; (d) the nature of any relationship between the witness and the accused; (e)whether the witness needs the order for their security or to protect them from intimidation or retaliation;(f)whether the order is needed to protect the identity of a peace officer who has acted, is acting or who will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;(f.1)whether the order is needed to protect the witnesses’ identify if they have had, have or will have responsibilities relating to national security or intelligence;(g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and (h) any other factor that the judge or justice considers relevant.

(4) If the judge is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection.

(5) A witness shall not testify outside the courtroom in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused, the judge and the jury to watch the testimony of the witness by means of closed circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.

[12] Testamentary aids could possibly be used to facilitate the Applicant giving her evidence through the exercise of the discretion of the trial judge in controlling the court’s process. However, given that the Applicant is a co-accused of Mr. Downey and Ms. Brown, if an application for the use of testamentary aids is brought by the Applicant, I would seek the input of the co-accused and the Crown as to how, if these aids were to be used, they could be utilized in a way which did not prejudice the fair trial rights of the co-accused.

[13] In considering severance, as outlined in Savoury, I am required to consider the interests of the accused, the co-accused and the community as represented by the prosecution. There are a number of complainants who are scheduled to testify in this trial.[^1] Granting severance would require that these complainants testify twice. The Crown currently is planning to call the Applicant as a witness against Mr. Downey in a separate proceeding. If severance is granted, the Crown indicates that it will also require the Applicant to testify against Mr. Downey in this current proceeding. The point which the Crown makes is that exposure to Mr. Downey is inevitable, thus reducing the appeal and utility of granting severance to minimize potential continuing “victimization” of the Applicant by forcing her to remain in the presence of Mr. Downey.

[14] In relation to the Applicant’s desire to call Mr. Downey as part of her defence, I must be satisfied that there is a reasonable likelihood that Mr. Downey would provide evidence which would be of assistance to the Applicant were severance to be granted, thus enabling her to call Mr. Downey as part of her case.

[15] Mr. Downey has a prior related conviction. I have no information as to whether a Corbett application will be brought on behalf of Mr. Downey, or whether he plans to testify in this trial. I do not share the Crown’s certitude that Mr. Downey will testify, thus enabling the Applicant to cross-examine him at trial and elicit the evidence of his manipulation and control which she seeks to lead as part of her case. Of course, it is possible that he will testify.

[16] However, I am not satisfied, having reviewed the statement of Mr. Downey, that he will provide information which would be helpful to the Applicant. Mr. Downey’s statement to police is a denial of any involvement in human trafficking or the allegations of assault. He also denies a personal relationship with the Applicant.

[17] There are also alternate methods of ensuring that the evidence which the Applicant seeks to lead involving Mr. Downey are made available to the court as part of the truth seeking function of the trial. It would be open to the Applicant to cross-examine the investigating officer if that officer is called at trial, in relation to evidence relevant to Mr. Downey’s alleged control and domination of the Applicant. If the officer is not called at trial, the Applicant would be able to call the officer and lead evidence in relation to Mr. Downey.

[18] The Crown’s evidence in this case vis- a-vis Mr. Downey, is likely to also benefit the Applicant in terms of portraying him as a person who is manipulative and controlling.

[19] The Applicant also argues for severance on the basis that the case against Mr. Downey is stronger and there is a risk that the jury will convict the Applicant based on “guilt by association” as opposed to properly weighing the evidence admissible against the Applicant. Juries are presumed to follow the curative instructions provided to them by trial judges, which would be required in this case, where there is likely to already be some contextual discreditable conduct evidence which finds its way into the trial due to the nature of the allegations.

[20] The case against Mr. Downey does appear to be much stronger than the case against the Applicant. However, this factor must be considered in light of the fact that the evidence against all is very much intertwined. Mr. Downey faces more charges than the Applicant. Although the parties are not charged with conspiracy, the Crown’s allegations are that the parties worked together as part of a common endeavour, with different assigned roles, to engage in the trafficking of human beings.

[21] The Crown’s body of evidence draws from the same group of complainants for each accused person. If severance were granted, these individuals would have to testify on multiple occasions.

[22] The Applicant also wishes to elect trial by judge alone. The Crown is willing to consent to re-election, but Ms. Brown is asserting her right to a trial by judge and jury. I agree with the Applicant that re-election to judge alone would ensure that she receives a trial at an earlier date. In this case though, the benefit of an earlier date is somewhat diminished for reasons which are related to the particular circumstances of the Applicant.

[23] The Applicant has been granted bail by the Crown, which resulted in her being placed in an immigration facility. The Applicant, according to correspondence provided to me by the Crown, is currently subject to a deportation order without a right of appeal. This deportation order will be executed regardless of the outcome of her criminal charges. In other words, whether the Applicant is convicted or acquitted she will be deported. However, if the Applicant is subpoenaed to testify in the trial of Mr. Downey, her deportation order will be postponed until the conclusion of that trial. The Crown indicates that it is expected that the Applicant will be released from immigration custody pending trial.

[24] The fact that the Applicant has been granted bail in her criminal matters reduces the prejudice she experiences as a result of any delay while waiting for her criminal trial. I appreciate that she is currently in an immigration facility, but that is not related to her criminal case.

[25] Since the Crown will be requiring the Applicant to testify in another proceeding, with deportation at the conclusion of that proceeding, a swifter trial date will not accrue the same benefit in relation to trial delay, as it would for someone who was not going to be deported at the conclusion of the legal proceedings.

[26] However, I accept that the anxiety of waiting for trial on serious charges causes distress to the Applicant, and that she has a right to a trial within a reasonable period of time. I have weighed that consideration.

[27] I do not agree that this trial is unlikely to be delayed in the current circumstances. The Crown preferred a direct indictment in this case in order to reduce delay. However, given the current state of affairs as the court moves to resume a greater volume of in-person trials, and to resume jury trials, I am satisfied that this trial will, in all likelihood, experience some level of delay due to the effect of the pandemic on resources.

[28] I also do not agree that a judge alone trial of this matter would take the same six weeks that would be required if the matter were to be heard by a judge and jury, especially given the fact that COVID-19 protocols and procedures can reasonably be expected to consume more time with a jury than with a judge sitting alone.

[29] In my view, the legal and factual nexus of this case at this point favours denial of severance. I have no information as to the complexity of the evidence, but there is a common factual backdrop of this case which applies to all accused. There was no information provided to me as to whether the Applicant prefers to testify on some counts and not others, so I have not considered this to be a relevant consideration. There is a possibility of inconsistent verdicts, and the complainants would be required to testify again in another proceeding. A judge alone trial will be reached more swiftly and will conclude more swiftly than a trial with a judge and jury. However, the Applicant has been granted bail in these proceedings, which mitigates somewhat the prejudice she faces due to expected delays related to COVID-19. In relation to the Applicant seeking severance in order to avoid being in the presence of Mr. Downey, and her stated inability to give evidence in his presence, at present the record is insufficient to grant severance on that basis. However, the Applicant is free to bring this application in front of me again with a proper evidentiary record. In terms of reliance on testamentary aids, this should also be brought as a pretrial motion, with the participation of all counsel, given the interests represented and the presence of the jury. I also considered the Applicant’s assertion that not only could she not testify, but she could not be in the presence of Mr. Downey for the duration of the trial of six weeks without being “re-victimized.”

[30] The unfortunate aspect of criminal trials is that they often are a crucible of anxiety and suffering for those who have been victimized. The complainants in this case will experience the same fear, insecurity and vulnerability as the Applicant will in giving her evidence in the presence of Mr. Downey. I appreciate that the Applicant will be physically in the court room for a longer period of time than the complainants as she is co-accused with Mr. Downey. However, before severance could be granted on that basis, or on the basis that the Applicant would be unable to give her evidence in the presence of Mr. Downey, a more substantive evidentiary record is required.

[31] When I weigh the totality of the relevant factors, I am not satisfied that a failure to grant severance in this case will work an injustice to the Applicant. It is not in the interests of justice that severance be granted. The application for severance is denied without prejudice. If further applications are brought with regard to severance or the use of testamentary aids, they should be brought before me.

A. E. London-Weinstein J.

Date: September 8, 2020

COURT FILE NO.: 19-R1941

DATE: 2020/09/08

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Praxicedes Khaleya Chiveli, Applicant -and- Her Majesty the Queen, Respondent

BEFORE: A.E. London-Weinstein J.

Melanie Lord, for the Applicant Siobhan Wetscher and Julien Lalande, for the Crown

ruling on severance application

A. E. London-Weinstein J.

Released: September 8, 2020

[^1]: The Crown indicated that there would be five complainants testifying, but the defence indicated that there are four complainants. Not much turns on this discrepancy; the point being that a number of complainants would have to testify twice if severance is granted.