COURT FILE NO.: CR - 183/20

DATE: 2020 10 29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Alexander Cornelius and Veronica Puls, for the Crown / Respondent

Respondent

– and –

PATRICK DOYLE

Applicant / Accused

David Bayliss, for the Applicant / Accused

HEARD: October 2, 2020

Pre-trial Ruling on Severance Application

RESTRICTION ON PUBLICATION

Pursuant to s. 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

J.M. Woollcombe J.

Introduction

[1] The applicant is charged on a single indictment with:

Count 1 – the September 2, 2018 first degree murder of Cliff Correia, contrary to s. 235(1) of the Criminal Code;

Count 2 – the September 2, 2018 aggravated assault by wounding or endangering life of Jessica Baycroft, contrary to s. 268 of the Criminal Code; and

Count 3 – the September 2, 2018 first degree murder of Derrick McKeown, contrary to s. 235(1) of the Criminal Code;

[2] The applicant seeks an order that both severs count 3 from counts 1 and 2 and that directs that the trial in relation to counts 1 and 2 proceed first, and be followed by the trial on count 3.

[3] The Crown opposes severance of the counts. If severance is granted, the Crown opposes any order being made as to which case should proceed first.

[4] At the conclusion of the hearing, the parties agreed that the only issue for me to rule on now is the issue of severance. They agree that if I grant severance, I should not decide the order in which the trials are to proceed. Instead, it is for the Crown to make that determination and, if the applicant challenges that decision, I would hear any subsequent defence application.

[5] I heard this application as assigned case management judge.

[6] For the reasons set out, the severance application is dismissed.

Summary of relevant facts

[7] The parties are generally agreed about the allegations and rely on the “Case Overview” filed at the Judicial Pre-trial Conference held in July 2020, which is reproduced in the applicant’s factum. Given both parties’ reliance on this document, I shall rely on it as well. I have set out below a truncated version of the facts that seem the most important for this application, and which are needed to understand the decision I have reached.

[8] On September 2, 2018, at about 00:43, Cliff Correia and Jessica Baycroft were together in a taxi cab parked in front of Mr. Correia’s home. They had been in an intimate relationship for about two years. Numerous gunshots were fired into the cab, killing Mr. Correia and injuring Ms. Baycroft.

[9] Before becoming involved with Mr. Correia, Ms. Baycroft had been in a common law relationship with Derrick McKeown for ten years. They had son together. Their relationship deteriorated. In 2017, Mr. McKeown was charged and found guilty of a domestic assault. Shortly before September 2018, he learned about the affair and relationship between Ms. Baycroft and Mr. Correia. He was distraught about it.

[10] The Crown alleges that the applicant and Derrick McKeown were together in Mr. McKeown’s truck shortly before the Correia / Baycroft shooting, and that it was the applicant who got out of the truck and shot them. The defence position is that the shooter was Mr. McKeown.

[11] The issue for trial on count 1 (the alleged planned and deliberate murder of Mr. Correia) and count 2 (the aggravated assault of Jessica Baycroft) is the identity of the shooter.

[12] The Crown says that later that night, the applicant confessed to his friend Jermaine Beeby that he had “shot C. in the head”. This is said to be a confession to having killed Mr. Correia. The applicant is also alleged to have given to Mr. Beeby a plastic bag and asked him to hold onto it until he could pick it up later. The Crown position is that the gun that had just been used by the applicant was in that bag.

[13] Later that evening, the applicant, Mr. McKeown and Mr. Beeby met at the “bald guy’s house”. The three of them left that home in Mr. McKeown’s black F150 truck. Mr. McKeown was driving. The applicant was in the front passenger seat and Mr. Beeby was in the rear seat.

[14] At some point, Mr. McKeown pulled the truck over to the side of the road and had a conversation with the applicant. Mr. Beeby says that he heard a loud bang and witnessed the applicant shoot Mr. McKeown and then push him out of the truck. This shooting was at about 6:35 a.m. The applicant then drove the truck away with Mr. Beeby in it.

[15] Jonathon Lane, a friend of both the applicant and Mr. McKeown, provided a statement to police. He said that before September 2, 2018, Mr. McKeown had spoken about confronting Ms. Baycroft and Mr. Correia about their relationship, that he had been using an “App” to track Mr. Correia’s location and that he knew where Mr. Correia lived.

[16] Mr. Lane also said that in the morning of September 2, 2018, the applicant and Mr. Beeby returned to the applicant’s home. He said that the applicant told him that he had been worried that Derrick was going to say something about the murder in the cab. Mr. Lane said, further, that the applicant told him that he wanted to get rid of Derrick because he thought Derrick would rat him out about the murder.

[17] Mr. Lane told police that he agreed to help the applicant get rid of his bloody clothing. Mr. Lane, Mr. Beeby, Sandra Nawrocki and the applicant drove together to a rural location where the applicant and Mr. Lane burned the clothing.

[18] A search warrant was executed at the applicant’s home. A loaded 9 mm Glock handgun and ammunition were discovered. This was not the firearm used in the two shootings.

[19] A CFS report indicates that the same firearm was used in both shootings. That firearm has not been recovered.

[20] The applicant admits that he shot and killed Mr. McKeown. I am advised that his defence to this charge will be self-defence.

The test for severance

[21] Section 591 of the Criminal Code provides that, subject to s. 589, the Crown may join any number of counts for any number of offences in the same indictment. Pursuant to s. 591(3), the court may, where it is in the interests of justice to do so, order that a person be tried separately on one or more counts. On a motion to sever, the applicant bears the burden of establishing on a balance of probabilities that the interests of justice require severance: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339 at para. 52; R. v. Last, 2009 SCC 45 at para. 24.

[22] The interests of justice test requires a balance to be struck between the “applicant’s right to be tried on evidence that is properly admissible against him and society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner, mindful of the risk that evidence admissible on one count could influence the verdict on an unrelated count”: R. v. Last at paras. 16-17; R. v. Durant, 2019 ONCA 74 at para. 72.

[23] While the Criminal Code does not prohibit an accused being tried for more than one murder count on a single indictment, the Court of Appeal commented in R. v. Jeanvenne, 2010 ONCA 706, at para. 34, that:

…there is very good reason, in such circumstances, to apply a more stringent application of the severance test in favour of the accused in such cases - particularly where, as here, the murders are completely unrelated: see R. v. Khan (1996), 1996 CanLII 7296 (MB CA), 108 C.C.C. (3d) 108 (Man. C.A.) (aff'd on other grounds, 2001 SCC 86, [2001] 3 S.C.R. 823. This flows from the common sense proposition that a jury may have great difficulty dissociating the evidence of one homicide from the other and in refraining from drawing the impermissible inference that because the accused may have committed one murder - bad character evidence of the highest degree - he or she is likely to have committed the other. The potential for serious prejudice to the accused is at its zenith in such circumstances. When there is no similar fact evidence connecting the two crimes, there is even less justification for refusing to sever.

[24] See also: R v. Durant at para. 51.

[25] Courts have provided guidance on factors that may be considered under the broad “interests of justice” test. While not exhaustive, Deschamps J., set out at para. 18 of R. v. Last some the factors that may be considered:

• the factual and legal nexus between the counts;

• the complexity of the evidence;

• whether the applicant intends to testify on one count but not on another;

• the possibility of inconsistent verdicts;

• the desire to avoid a multiplicity of proceedings;

• the use of similar fact evidence at the trial;

• the length of the trial, having regard to the evidence to be called;

• the potential prejudice to the applicant with respect to the right to be tried within a reasonable time;

• the existence or likelihood of antagonistic defences; and

• the general prejudice to the applicant resulting from the effect on the verdicts across counts.

[26] See also: R. v. Durant at para. 73

Analysis

[27] The applicant and Crown take very different views about the Last factors.

[28] Before discussing these factors, it is important to note that the only issue before me is the question of severance. The Crown indicates that if severance is ordered, it will bring applications to adduce at each separate trial evidence that would otherwise be admissible at only the other trial. I will consider the significance of this as I consider the nexus between the counts.

a) Factual and legal nexus between the counts

[29] While conceding that there is some factual nexus between the counts, counsel for the applicant fairly points out that in assessing this question, care must be taken to determine whether there are cogent factors that require a joint trial, or whether the factual issues can be disentangled in two separate trials.

[30] These two homicides are alleged to have occurred within a matter of hours. There is a very close temporal nexus. Moreover, there are important witnesses who were with the applicant at various times over the evening of September 1 and early morning of September 2, 2018. They will, necessarily, need to testify about these events and their observations of the applicant over this period, regardless of whether there is one trial or two. The Crown’s case in both homicides depends largely on these witnesses. There would be a real duplication in evidence were these witnesses required to testify at two trials. This factor alone suggests a strong factual nexus.

[31] There are two further factors that I find create an even more meaningful factual connection between the counts.

[32] First, there is no issue that the same gun was used in both shootings. This is a significant overlapping fact about which I will say more in my analysis of the legal nexus between the homicides.

[33] Second, one of the applicant’s alleged inculpatory post offence statements creates a critical factual connection between the two homicides. The applicant is alleged to have confessed to Mr. Lane that he killed Mr. McKeown because of his concern about being ratted out by him for having killed Mr. Correia.

[34] While acknowledging that this alleged confession intertwines the two cases, the applicant’s position is that Mr. Lane’s statement is so weak and unreliable that its prejudicial effect exceeds its probative value. Counsel says it should not be admissible at all, particularly in respect of the Correia shooting.

[35] The applicant suggests that the transcript from the preliminary inquiry reveals that Mr. Lane’s statement is vague and lacks clarity as to precisely what was said by the applicant. Furthermore, counsel suggests that there are real issues about Mr. Lane’s credibility, given that his evidence as to what he says the applicant told him is said to be inconsistent with the forensic evidence about how the McKeown shooting unfolded. In short, the applicant says Mr. Lane’s evidence is of low probative value. At the same time, its prejudicial effect is submitted to be high.

[36] Having reviewed the evidence of Mr. Lane at the preliminary inquiry, and listened to the applicant’s submissions, I accept that there may well be issues for a jury respecting the credibility and reliability of Mr. Lane’s evidence. That said, the alleged confession he reports hearing links the two cases factually in a significant way. I do not see it as being as vague and worthless as counsel submits it is. To the contrary, I see it as being potentially very probative. For the Correia shooting, it amounts to a powerful confession. For the McKeown shooting, it both provides a motive for the killing and undermines any claim of self-defence. The nature of the statement is such that it cannot be parsed so as to relate to only one of the two homicides. I see this statement as creating a significant factual link between the two cases.

[37] The Crown suggests a factual nexus between the two homicides because of the alleged after the fact conduct of the applicant in the burning of the clothes worn by him. There is no suggestion that the clothing that was burned was worn for both homicides. I am not persuaded that there is, necessarily, any factual nexus between the two cases flowing from this evidence.

[38] I turn now to the Crown’s assertion of a strong legal nexus between the two homicides.

[39] In considering the issue of legal nexus, I recognize that the meaning of this term is not as clear as one might expect.

[40] In R. v. Moore, 2015 ONSC 728 , Dambrot J. commented:

147 The meaning to be attributed to a legal nexus in this context is less than clear. In the vast majority of cases considering whether or not there is a legal nexus between counts, the court treated that phrase as referring to counts arising from different transactions that "meet the test of similar fact evidence." This phrase may have originated in Ewaschuk, "Criminal Pleadings and Practice in Canada," (2d), Paragraph 9:13160, and in any event is found there. It has been quoted with approval in a great many cases. (For a recent example of similar fact evidence being considered under the heading of legal nexus see R. v. Waudby, 2011 ONCA 707, [2011] O.J. No. 5031, at para. 4, where the Court stated, "[t]he Crown's similar fact application, assessed carefully at the time of the severance application, appeared to have sufficient merit to establish a legal nexus between the LC and TK counts.")

148 I note that in Last, the Court offers a separate heading for consideration of this issue, namely "the use of similar fact evidence at trial." This may be because of the concern that it might otherwise be forgotten that while the onus is on the accused to satisfy the court that severance should be ordered, the Crown bears the onus of satisfying the court that similar fact evidence is admissible across counts. So long as that fact is kept in mind, I see no harm in considering similar fact evidence under the present heading.

149 In other cases, legal nexus has implicitly or explicitly been held to include situations where there is cross-count admissibility of evidence on a basis other than similar fact (R. v. L.W.G., 1996 ABCA 261, [1996] A.J. No. 653 (C.A.), 49 C.R. (4th) 178; R. v. Mousseau, 2002 ABQB 191, [2002] A.J. No. 229); where there are essential elements in common between counts (R. v. Ticknovich, 2003 ABQB 597, [2003] A.J. No. 905); or even where there are simply legal issues common to the various incidents under consideration (R. v. Shrubsall, 1999 CanLII 19100 (NS SC), [1999] N.S.J. No. 496 (S.C.)).

150 I need not comment on the various views of what the scope of the term legal nexus between counts may be in the context of severance. I need only say that in my view, cross-count admissibility of evidence that is relevant to each of the counts in an indictment as circumstantial proof of the identity of the perpetrator of each of the offences alleged in those counts is legal nexus. In this case, the legal nexus between counts is formidable, and weighs very strongly in favour of a single trial. As Deschamps J. said in Last, at para. 33, the fact that the evidence on all incidents covered by the counts in an indictment would have to be led in any event favours a joint trial. Admittedly she was speaking of evidence that would be lead in any event as a result of a similar fact ruling, but I see no difference in principle.

[41] This is not a case in which there will be an application to adduce similar fact evidence. However, I still find there to be a strong legal nexus between the two alleged murders. This flows from the fact that evidence that is relevant, probative and admissible in respect of one alleged murder is also relevant, probative and likely admissible in respect of the other.

[42] First, the fact that the same gun was used for both killings creates not only a factual connection, but also a meaningful legal one. The applicant acknowledges that he used that gun to kill McKeown. The fact that the same gun was used to kill Correia, about six hours earlier, is powerful circumstantial evidence that the gun was possessed and used by the applicant at that time as well.

[43] The defence submits that there is a “superficial allure” to the Crown argument that the same gun being used in both homicides supports them being tried together. This position rests on the defence suggestion that there is every reason to believe that the firearm changed hands in the time between the first and second shootings. While it will be open to the defence to make that argument at trial, on the facts of this case, I do not accept, given the short period of time between the shootings, that this severs the legal nexus between the shootings and justifies severing them.

[44] In R. v. Backhouse, 2005 CanLII 4937 (ON CA), [2005] O.J. No. 754, the Court of Appeal explained that an accused’s possession of a murder weapon after the murder may be understood as circumstantial evidence of his involvement in the earlier killing. Whether or not that evidence is admissible depends on the probative value of the evidence weighed against its prejudicial effect. Logically, the longer the passage of time between the murder and the accused’s possession of the weapon, the less the probative force of the later possession. In Backhouse, of course, the passage of time was eight months between the two shootings. It was hardly surprising, therefore, that the probative value of the evidence was not significant.

[45] Relying on the analysis in Backhouse, Dambrot J. at para. 47 of R. v. Moore, said the following about the legal nexus created by the use of the same gun on more than one occasion:

47 Here, the fact that the gun was not only possessed, but also used on three occasions does in fact increase the probative value of the possession of the gun to an appreciable degree. While the mere possession of a gun on two occasions gives rise to an inference of possession on a third occasion, it leaves open the argument that the possession of the gun was not necessarily continuous or exclusive, and that the accused may not have been the person in possession of it on the third occasion. The inference of continuous or even exclusive possession is stronger where the possession of the gun on the various occasions is exclusive and enduring, and is stronger still if the possessor made use of it. The extent of a person's association with a gun is obviously greater when they make repeated use of it, rather than simply hold it, but both ordinarily amount to possession. While use of a gun on two widely separated occasions, as in Backhouse, would mean very little, repeated use might logically mean a lot more. As a result, evidence that the gun was used on each occasion would be admissible for the purpose of proving possession if the counts were severed.

[46] The fact that the gun was possessed and used by the applicant about six hours after the Correia murder is, in my view, circumstantial evidence that it was possessed by him earlier. While guns can, of course, be easily transferred between people, the fact that the applicant had and used it later, in my view, makes available a compelling inference that he also had and used it earlier.

[47] Were the charges severed, the Crown would apply to adduce at the applicant’s trial for the Correia homicide, the fact that he had and used the gun later. This is some evidence of the identity of the Correia shooter. Admissibility of this evidence would depend on an assessment of probative value and prejudicial effect of the evidence. At this point, while I am not asked to make a determination as to admissibility, it seems to me that the Crown has a strong argument that the later possession of the gun would be admissible evidence, relevant to the identity of the shooter, at a trial in respect of the Correia shooting.

[48] Similarly, were the charges severed, at the applicant’s trial for the McKeown murder, where the issue for the jury would be whether the applicant had the intent for a planned and deliberate murder, the Crown would need to apply to adduce the fact that the same gun that he used for that shooting had been used six hours earlier in the Correia / Baycroft shooting. Given the link between the gun and alleged confession, it seems to me that the Crown would have an argument that the evidence of the same gun being used in the earlier shooting is admissible.

[49] I conclude that the gun creates a legal connection between the two homicides. The fact that the gun was used in the other shooting would likely be admissible on each homicide, even if they were tried separately. This points against severance.

[50] I also see a significant legal nexus created by the applicant’s alleged confession to Mr. Lane that he killed Mr. McKeown because he was concerned that he would rat him out for having killed Mr. Correia.

[51] A confession to having killed Mr. Correia is presumptively admissible at the trial for the Correia / Baycroft shooting. The difficulty is that this confession includes other discreditable conduct of the most prejudicial sort – that the applicant also killed Mr. McKeown. I accept the defence theory that the applicant could have said what he said because he felt implicated in the Correia shooting due to the fact that he was present and his gun was used, even if he himself did not do the shooting. But, I do not see this inference as nearly as being as plausible as the Crown’s theory that the applicant was acknowledging actually having killed Correia. I think the Crown has a strong argument for the admission of the alleged confession to Mr. Lane at the Correia trial, were it to be severed.

[52] I find it very difficult to see how the alleged statement could be parsed or edited at a severed Correia trial so as to enable the jury to hear about the confession to the Correia homicide, but to insulate them from hearing the prejudicial evidence about the McKeown homicide at the same time: R. v. Jeanvenne at para. 40. The context of the alleged confession is crucial to assessing its veracity and significance. I am not asked to rule on the admissibility of the alleged confession on the Correia count, were it to be severed. While that admissibility assessment would turn on a probative value versus prejudicial effect analysis, I think there is a compelling argument that the entire statement would be admissible at a severed Correia trial.

[53] Similarly, when considering the McKeown murder, the applicant’s alleged statement of having killed Mr. McKeown is also presumptively admissible. The portion of the statement in which the applicant is alleged to have explained the reason for the murder as being because of his fear of being ratted out for the Correia murder is evidence of prior discreditable conduct, the admissibility of which would need, at a severed trial, to be determined on the basis of a probative value and prejudicial effect analysis. Again, while I am not asked to make that admissibility determination, I must consider whether the Crown has a viable basis to admit this statement at a trial for the McKeown homicide, were the trials to be severed. In my view it does.

[54] The applicant admits to having killed Mr. McKeown, but submits that he lacked the intent for murder because he acted in self-defence. His statement explaining why he killed McKeown is directly relevant to the issue of intent. While it is prior discreditable conduct in that it is an admission of having killed someone else, its probative force is very high in that, if believed, it completely undercuts self defence. In my view, were the McKeown count severed, the Crown would have a compelling argument that it should be permitted to adduce the entire alleged confession to Mr. Lane.

[55] Again, in my view, the fact that the confession to Mr. Lane would likely be admissible against the applicant on each trial, even if they were severed, points towards a close legal nexus and against severance.

[56] The Crown also submits that there is a legal nexus because, in a case in which Mr. Lane’s evidence will be challenged as unreliable, and he will be subject to a Vetrovec warning to the jury, the Crown is permitted to adduce evidence that confirms what Mr. Lane says. The Crown submits that in order to support the credibility of Mr. Lane’s evidence that the applicant confessed to him having killed McKeown because of concern about being ratted out for the Correia homicide, it is permitted to adduce evidence supporting Mr. Lane’s credibility. The Crown says that this includes: the evidence that the same firearm was used for the two killings, the applicant’s statement to Mr. Beeby that he shot Mr. Correia in the head, evidence as to the manner in which Mr. McKeown was killed and the fact that Mr. Lane said the clothes were burned and police confirmed that this was accurate. In other words, the Crown position is that it is inevitable that even if severance were granted, the Crown would be permitted to adduce evidence relevant to the other homicide in order to support the credibility of Mr. Lane.

[57] I am not persuaded that the Crown is correct. Were the trials severed, all of the prior discreditable conduct that the Crown proposes to adduce to enhance Mr. Lane’s credibility would be subject to an admissibility determination. It is not a foregone conclusion that supporting the credibility of a Vetrovec witness would justify the admission of all of this potentially prejudicial evidence. I think the Crown casts its argument on this issue too broadly and decline to find a legal nexus between the counts on this basis.

[58] However, on the basis of the fact that there is a strong factual and legal nexus between the homicides, including the fact that they took place over less than six and a half hours, were committed using the same firearm, will involve testimony of the same witnesses, and involve an alleged confession by the applicant that he committed the second homicide to prevent the deceased from ratting him out for the first murder, I think there is very compelling reason not to sever the charges.

b) The complexity of the evidence

[59] The applicant concedes that the complexity of the evidence alone does not require severance of the two homicides. I agree.

c) Whether the applicant intends to testify on one count but not on another

[60] The applicant’s position is that someone else shot Mr. Correia and Ms. Baycroft and that he shot Mr. McKeown in self-defence. He does not wish to testify with respect to the Correia / Baycroft shooting, but does wish to testify with respect to the McKeown shooting.

[61] The parties agree about the law respecting this factor, as set out in the Supreme Court of Canada decision in R. v. Last at paras. 25-27:

25 In assessing the accused's testimonial intention on a severance application the underlying concern is for the accused's ability to control his defence, and, more specifically, his right to decide whether or not to testify with respect to each of the counts unimpaired by inappropriate constraints.

26 Both the Crown and the defence submit that the accused's intention should be objectively justifiable. This requirement is, indeed, a threshold. The accused's expression should have both a subjective and an objective component. However, while a formulaic expression of a subjective intention is not sufficient in and of itself to discharge the accused's burden to have the counts severed, the trial judge should not substitute his or her own view for that of the accused and determine that the accused should testify or not. Rather, the trial judge must simply satisfy him- or herself that the circumstances objectively establish a rationale for testifying on some counts but not others. The burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention. The information could consist of the type of potential defences open to the accused or the nature of his testimony: Cross, at p. 421. However, the accused is not bound by his stated intention; he remains free to control his defence, as the case unfolds, in a manner he deems appropriate.

27 While an accused's provisional intention with respect to testifying is certainly a consideration which should be given significant weight, it is but one factor to be balanced with all the others. An accused's stated and objectively justifiable intention to testify on some but not all counts is not necessarily determinative of a severance application. It can be counterbalanced by other circumstances that the judge finds may prevent the accused from testifying, or be outweighed by factors that demonstrate that the interests of justice require a joint trial.

[62] In R. v. Durant, at para. 75, the Court of Appeal made the following comments about an accused’s intention to testify on one count but not another:

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 (B.C. C.A.), at paras. 15-16, affirmed on other grounds, 2007 SCC 36, [2007] 3 S.C.R. 3 (S.C.C.). 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.

[63] I understand and agree with the defence position that the Crown’s case against the applicant for the McKeown murder is objectively stronger, making it advisable for him to testify on this count. I also appreciate the defence position that the case for the Crown is weaker on the Correia homicide and that there is an argument to be made that McKeown killed Correia. I accept that the applicant does not plan to testify on this count.

[64] I accept the applicant’s subjective intention to testify on one murder count but not the other, and find this decision to be objectively reasonable on the basis of the anticipated evidence. This factor is usually a very compelling reason to sever the counts. But, in the circumstances of this case, where the counts are so interrelated, I cannot conclude that this factor requires severance.

[65] I reach this conclusion because I think it is inevitable that at a severed McKeown trial, at which the applicant intends to testify in support of his claim of self-defence, the Crown would be permitted to challenge his evidence and to suggest that he did not act in self defence but, instead, out of concern that McKeown would rat him out for the Correia shooting. I cannot see how the applicant could avoid being cross-examined on his alleged statement to Mr. Lane that he killed McKeown because of fear about being ratted out, and not for the purpose of defending himself. In addition, I think the Crown would be permitted to cross-examine him about his alleged confession to Mr. Beeby that he shot “C”, Mr. Correia. The result, in my view, is that the trier of fact would inevitably learn about the Correia shooting, the very prejudice that the applicant seeks to avoid by severing the charges.

[66] Every case must be assessed on the basis of its unique facts. In this case, I cannot conclude that the fact that the applicant wishes to testify in relation to one charge but not the other compels severance.

d) The possibility of inconsistent verdicts

[67] There is no possibility of inconsistent verdicts if the counts are severed. This factor favours severance.

e) The desire to avoid a multiplicity of proceedings

[68] There is no question that trial efficiency favours one trial, given the fact that two trials would necessitate many witnesses testifying twice about the identical events. Two trials would also require the Crown to make prior discreditable conduct applications twice. However, given the serious nature of the charges, and the fact that severance would lead to two trials of about eight weeks, rather than one, I do not give this factor much weight: R. v. Jeanvenne, at para. 41.

f) The use of similar fact evidence at the trial

[69] As I have said, the Crown does not intend to bring a similar fact application. Nor do I think it could on the issue of identity in this case. As was explained in R. v. Durant, at paras. 89-90:

89 It is well-settled that where evidence of similar acts is proposed for admission to identify an accused as the person responsible for a crime, the authorities require a high degree of similarity. The descriptives vary but include phrases such as “strikingly similar”, “so highly distinctive or unique as to constitute a signature”, or “fingerprints at the scene of the crime” that would safely differentiate the alleged perpetrator from other possible assailants: Handy, at paras. 77, 80.

90 In the usual course where evidence of similar acts is proposed for admission in proof of a perpetrator’s identity, the trial judge should review the manner in which the similar acts were committed, that is to say, whether the allegedly similar acts involve a unique trademark or reveal a number of significant similarities. This review enables the trial judge to determine whether the alleged similar acts were likely all committed by the same person. This analysis is confined to a consideration of the manner in which the acts were committed and not the evidence relating to the involvement of the accused in those acts. The result of this analysis establishes the likelihood of a common actor: Arp, at paras. 45, 50; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228 (S.C.C.), at para. 21. See also, Woodcock, at paras. 79-81.

[70] The Crown’s position, as I understand it, is that it does not need to bring a similar fact application because much of the evidence it seeks to adduce could be called on the basis of “cross-count admissibility”.

[71] It is important to observe that there is no such free-standing basis for evidence to be admitted. Use of that term, in the absence of a more fulsome description of the legal basis for the evidence to be admissible, is not particularly helpful. Obviously, evidence may be admissible on more than one count, in the absence of a similar fact application, if it is relevant and probative and if its probative value exceeds its prejudicial effect.

[72] So, for instance, evidence that the same gun was used by the applicant to shoot McKeown may be admitted as circumstantial evidence that he was the shooter in the Correia murder if the probative value of that evidence exceeds its prejudicial effect. Evidence of after the fact conduct may, similarly, be admitted if its probative value exceeds its prejudicial effect. But, this evidence, even if presumptively admissible on one count, is not presumptively admissible on the other count. Admissibility turns an assessment of probative value and prejudice, rather than an assertion of relevance.

g) The length of the trial, having regard to the evidence to be called

[73] As I have indicated, two trials will consume more court time than one, and will result in the duplication of much of the evidence. For the reasons already set out, given the stakes in this case, I place little weight on this factor.

h) The potential prejudice to the applicant with respect to the right to be tried within a reasonable time

[74] The applicant was charged on September 3, 2018 and has been in the system for 26 months. He says that the net Jordan date is October 2021. No trial date has yet been set. He will waive any additional delay that arises beyond the net Jordan date as a result of granting severance, a factor favouring severance.

i) The existence or likelihood of antagonistic defences

[75] There is no possibility of antagonistic defences if the counts are severed. This factor favours severance.

j) The general prejudice to the applicant

[76] The applicant emphasizes that each murder count is extrinsic misconduct with respect to the other. Learning about the other alleged murder may infect the jury’s deliberation process through both moral and reasoning prejudice. Moral prejudice refers to “the risk of an unfocused trial and wrongful conviction grounded on an inference of guilt from general disposition or propensity”. Reasoning prejudice refers to the “risk of distracting jurors from their proper focus on the offences charged when allegations of other misconduct enter the trial”: R. v. M.T., 2012 ONCA 511 at para. 83.

[77] I recognize that if there is a joint trial, the jury will hear evidence that the applicant is alleged to have been involved in two murders. This has the potential for significant prejudice to him. There is a risk of the jury engaging in impermissible general propensity and bad character reasoning and jumping from the applicant’s confession to having shot McKeown to a conclusion that he also killed Correia. The risk of moral prejudice is higher when, in the absence of a similar fact application, the case in one murder is stronger than in the other (R. v. Durant at para. 109).

[78] Notwithstanding the genuine potential for prejudice, the inextricable factual and legal connections between the two murders require that they be tried together. Given this connection, and the likelihood of the jury learning significant details about the other homicide even were there to be separate trials, severance would not overcome the very risks that the applicant fears. The only way to ensure that the applicant receives a fair trial for the two homicides is for the trial judge to ensure that the jury is clearly and properly instructed both about what evidence is admissible against the applicant on each of the homicides and as to the permissible and impermissible lines of reasoning in determining their verdict. I am satisfied that appropriate instructions can ensure a fair trial.

Conclusion

[79] The severance application is dismissed.

[80] At the conclusion of the oral hearing, I reserved my decision and remanded the accused to the assignment court on November 27, 2020 at 9:00 a.m. I indicated that if my decision was released before an earlier assignment court, the parties were free to bring the matter forward to an earlier assignment court. There is an assignment court on November 13, 2020. Should the parties wish to bring this matter forward to this earlier date, they should make those arrangements with the trial coordinator’s office.

Woollcombe J.

Released: October 29, 2020