COURT FILE NO.: CR-19-90000094
DATE: 20200904
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KEVIN LEVAR PRINCE
Defendant
Diana Lumba, for the Crown
Alana Page, for the Defendant
HEARD: August 18, 2020
CAVANAGH J.
REASONS FOR JUDGMENT
Overview
[1] The accused, Kevin Levar Prince, was charged with five substantive counts including possession of a controlled substance, cocaine, for the purpose of trafficking and possession of an unregistered firearm. In addition to the substantive counts, the accused was charged in the same indictment with five counts of failing to comply with orders which prohibited him from possessing a firearm and which prohibited him from possessing any unlawful drug.
[2] At a judicial pre-trial conference, an order was made, on consent, severing the failure to comply counts. The severance order states that a new indictment will be laid for those charges and the accused will re-elect on those charges to trial by judge alone before the trial judge who presided at the trial of the substantive charges. The severance order also states that evidence at the trial of the substantive charges will apply, and the trial judge will decide at the conclusion of the jury trial.
[3] The substantive charges proceeded to a trial before a judge and jury, over which I presided. The jury returned verdicts of guilty on these charges.
[4] A one day hearing was scheduled for the trial of the failure to comply charges. Both Crown counsel and defence counsel rely on the evidence given at the trial of the substantive charges, but each takes a very different position on how the severance order should be read and understood in relation to how this evidence may be used.
[5] Crown counsel contends that I am bound to accept as proven the facts essential to the jury’s verdicts, and that to do otherwise would be highly irregular and untenable. Crown counsel asks me to accept as proven that the accused had possession of a firearm and cocaine, and enter convictions on the failure to comply charges.
[6] Defence counsel disagrees, and submits that the severance order does not require me to do so. Defence counsel submits that there is no principle of law which precludes me from considering the evidence adduced at the trial of the substantive charges and deciding, independently of the jury’s verdicts, whether the Crown has discharged its burden of proving that the accused had possession of a firearm or cocaine. Defence counsel argues that the Crown has not discharged its burden, and asks me to find the accused not guilty on the failure to comply charges.
[7] The language of the severance order is unclear on the question of how the evidence from the trial of the substantive charges would be used at the trial of the failure to comply charges. The Crown and the accused were not ad idem on this question when the severance order was made on consent. Absent clear language in the severance order, and absent consensus ad idem on the meaning of the severance order, the accused should not be taken to have agreed that I must accept as proven the facts essential to the jury’s verdict, and the Crown should not be taken to have agreed that the issues of whether the accused had possession of a firearm or cocaine may be relitigated on the same evidentiary record, leading to the possibility of inconsistent verdicts.
[8] In these circumstances, I order a mistrial of the trial of the failure to comply charges. Because I will be the sentencing judge on the convictions for the substantive charges, the trial of the failure to comply charges should be re-scheduled to proceed before another judge. The evidence from the trial of the substantive charges will not apply to the trial of the failure to comply charges.
Procedural Background
[9] On January 7, 2019, the accused was charged in a single indictment with ten counts including possession of a controlled substance for the purpose of trafficking, possession of a prohibited firearm without a licence and a registration certificate, and three other substantive counts.
[10] In addition to the five substantive counts, the accused was charged with three counts of possession of a firearm while prohibited from doing so by reason of an order made under s. 109 of the Criminal Code, one count of failure to comply with the condition of a probation order that the accused not possess any weapons and one count of failure to comply with a condition of a probation order that he not possess any unlawful drugs or substances.
[11] I will refer to the five counts for failures to comply with court orders as the “FTC charges”.
[12] A judicial pre-trial conference was held on January 23, 2019. At that conference, counsel for the accused requested that the FTC charges be severed from the indictment. Crown counsel consented, and a consent order was made which is recorded in the Report to the Trial Judge (Form 18-A1) as follows:
FTC charges will be severed and a new indictment laid for those charges. Indictment will be brought forward and A will re-elect on the FTC charges to judge alone before the trial judge, after the jury retires. Evidence will apply and trial judge will decide at the conclusion of the jury trial.
[13] In compliance with the severance order, separate indictments each dated January 24, 2019 were laid for (i) the five substantive charges including possession of a prohibited firearm and possession of cocaine for the purpose of trafficking, and (ii) the five FTC charges.
[14] The five substantive charges proceeded to trial before a judge and jury. I presided over this trial as the trial judge. The jury returned verdicts of guilty on these charges.
[15] On February 21, 2020, the accused was arraigned on the FTC charges. The accused re-elected to trial by judge alone and pleaded not guilty. The trial of the FTC charges was scheduled for one day and both counsel advised that no additional evidence would be called.
[16] The trial of the FTC charges commenced on August 18, 2020. At this trial, counsel filed as an exhibit an agreed statement setting out the particulars of the three court orders which relate to the FTC charges. The parties otherwise relied on the evidence adduced at the trial of the substantive charges, as contemplated by the severance order. No additional evidence was tendered.
Issue
[17] The threshold question before me is whether the severance order should be read and understood as requiring that I, as the trial judge on the FTC charges, am bound by the jury’s findings on facts that are essential to the jury’s verdicts of guilt on the substantive charges, or whether it should be read and understood as providing that I am entitled to independently assess the evidence tendered at the trial of the substantive charges and make my own findings on whether the Crown has satisfied its burden to prove that the accused had possession of an unregistered firearm and that he had possession of cocaine.
Positions of the parties
[18] The Crown’s position is that the issue of whether the accused had possession of drugs or a firearm was squarely before the jury, and the jury clearly found beyond a reasonable doubt that the accused had possession of both. The Crown contends that in these circumstances, where the jury made factual findings on the substantive charges that are essential to the verdicts, it would be improper for me, as the trial judge on the FTC charges, to consider the evidence independently of the jury verdicts and find that the Crown has failed to prove that the accused had possession of the drugs or the firearm.
[19] The Crown argues that it would be highly irregular, and untenable for the administration of justice, for me to make conflicting findings on the same issues already decided by the jury, on the same evidence, because this would lead to the possibility of inconsistent verdicts. The Crown also submits that for me to follow this approach would amount to putting myself in the position of an appeal court on an appeal from the jury’s verdicts.
[20] In support of these submissions, the Crown points to s. 724(2) of the Criminal Code which provides that in determining a sentence:
Where the court is composed of a judge and jury, the court
(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilt; and
(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
[21] The Crown submits that as the sentencing judge on the substantive charges for possession of drugs and possession of a firearm, it is not open to me, regardless of what my own assessment of the evidence might be, to make findings that conflict with the jury’s findings of facts that are essential to the its verdicts. The Crown contends that the same principle applies on the trial of the FTC charges. The Crown submits that the severance order should be read as requiring that at the trial of the FTC charges, the parties will be bound by findings of fact that are essential to the jury verdicts on the substantive charges.
[22] Accordingly, the Crown asks that I accept the jury’s clear findings that the accused had possession of the drugs and the firearm and enter convictions against the accused on the FTC charges. Alternatively, if I accept the submissions of defence counsel and decide that the severance order allows me to independently assess the evidence tendered at the trial of the substantive charges, the Crown submits that I should make findings which are consistent with the jury’s verdicts of guilt.
[23] Defence counsel submits that where an indictment includes substantive counts and counts for failure to comply with orders, it is routine for the failure to comply counts to be severed from substantive counts on the ground that to do so would be in the interests of justice because of the risk that the verdict on the substantive counts would be improperly influenced by the FTC counts.
[24] The position of defence counsel in relation to the FTC charges is that the accused did not agree to be bound by findings made by the jury on the substantive charges, and the severance order does not so state. Defence counsel disagrees that severance order should be read as requiring that the parties will be bound by findings of fact essential to the jury verdicts.
[25] Defence counsel contends that there is no principle of law that precludes me from deciding that the Crown has failed to prove that the accused had possession of a firearm or drugs based upon my independent assessment of the same evidentiary record that was before the jury on the trial of the substantive charges.
[26] Defence counsel argues that when the evidence at the trial of the substantive charges is properly assessed, I should decide that the Crown has failed to prove that the accused had possession of either the drugs or the firearm. Accordingly, defence counsel asks that I find the accused not guilty on the FTC charges.
Analysis
[27] Although the severance order states that the evidence at the trial of the substantive charges will apply to the trial of the FTC charges, it does not explicitly state, one way or the other, whether the trial judge at the trial of the FTC charges is or is not bound to accept as proven the facts essential to the jury’s verdicts of guilt on the substantive charges.
[28] The possibility of inconsistent verdicts would clearly arise if the severance order is read as defence counsel contends it should be. Although the Supreme Court of Canada has held that the Crown is not entitled to rely on the doctrine of issue estoppel to bar an accused from contesting his or her innocence based on a decision against the accused in a prior criminal proceeding (R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 56-57), the possibility of inconsistent verdicts is a relevant factor to be weighed on an application to sever counts in an indictment (R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at paras. 17-18). This factor is not addressed in the severance order and, for this reason, I do not know whether, or how, this factor was considered when the severance order was made.
[29] The procedure which counsel ask me to follow is based on the statements in the severance order that at the trial of the FTC charges the evidence from the trial of the substantive charges will apply and the trial judge will decide at a judge alone trial after the jury retires. This procedure is intended to promote efficiency and cost-effectiveness in the trial process and, if counsel had agreed on how the trial judge should assess the evidence adduced at the trial of the substantive charges, this procedure would avoid the calling of evidence that would be duplicative of evidence already called. Both the Crown and the accused ask me to follow this procedure, but each asks me to do so according to a different reading and understanding of the severance order.
[30] On my reading, the language in the severance order is unclear on how it should be read and understood in relation to the threshold question before me. It is apparent that the parties were not ad idem with respect to this essential term of the severance order when it was made. In the absence of clear language and consensus ad idem, I do not accept that the accused should be taken to have agreed that the jury’s findings on facts essential to its verdicts would be binding on him at the trial of the FTC charges, or that the Crown should be taken to have agreed that if the jury returned guilty verdicts on the substantive charges, there could be relitigation, through the trial of the FTC charges, of the issues of whether the accused had possession of drugs and a firearm, on the identical evidentiary record, leading to the possibility of inconsistent verdicts. In these circumstances, neither the accused nor the Crown should be bound by the statements in the severance order addressing how the trial of the FTC charges should proceed.
[31] The accused has re-elected on the FTC charges and pleaded not guilty. In these circumstances, the Crown is required to prove its case in the usual way, by calling evidence. The evidence at the trial of the substantive charges will not apply to the trial of the FTC charges.
[32] As the sentencing judge for the substantive charges, I am required to accept as proven all facts that are essential to the jury’s verdicts. Given this role, in my view, it would not be in the interests of justice that I serve as the trial judge at the trial of the FTC charges because I may be required to make findings at the sentencing on the same issues as those that arise on the trial of the FTC charges. The trial of the FTC charges should proceed before another judge.
[33] As a result of my decision, it is neither necessary nor appropriate for me to address the evidence given at the trial of the substantive charges.
Disposition
[34] For these reasons, I order a mistrial of the trial of the FTC charges before me. The evidence from the trial of the substantive charges will not apply to the trial of the FTC charges.
[35] Counsel should arrange to secure dates for a new trial of these charges before another judge.
Cavanagh J.
Released: September 4, 2020
COURT FILE NO.: CR-19-90000094
DATE: 20200904
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KEVIN LEVAR PRINCE
Defendant
REASONS FOR JUDGMENT
Cavanagh J.
Released: September 4, 2020