COURT FILE NO.: CR-19-1769-00
DATE: 2020 01 30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Burdo, for the Crown
- and -
FITZROY ALLEN
P. Locke, for the Defence
HEARD: January 20, 2020, at Brampton
RULING ON SEVERANCE APPLICATION
André J.
[1] Mr. Fitzroy Allen, who is jointly charged with Chijioke Emmanuel Nwankwo and Shanari Esiri Williams with importing a controlled substance into Canada, and other related charges, brings an application for an adjournment of his trial or alternatively, severance from his co-accused or severance of one of his charges. The Crown opposes the application.
BACKGROUND
[2] Mr. Allen and his co-accused, who are both unrepresented, face seven charges, seven of which arose as a result of a scheme to import cocaine into Canada from Suriname. Mr. Allen faces an eighth charge following the seizure of cocaine from his residence.
[3] In November 2017, Canada Border Services (BSO) officers intercepted a package, which they found to contain 3,500 grams of cocaine addressed to a Mr. Cohen. They placed a tracer on the package and delivered it to a mail box. Mr. Williams retrieved the packaged and was found to be in possession of fraudulent identification in the name of Eric Thomas. The package was traced to a Superstore where Mr. Allen was observed to take possession of it. The police then attempted to arrest Mr. Allen and others but Mr. Allen managed to drive away, striking an unmarked police cruiser in the process. The police tracked the package to a townhouse complex on Finch Avenue in Toronto.
[4] Upon arrival at this address, the police observed Mr. Allen’s car and a pick-up truck. The truck’s driver was a male named Mr. Adams. Mr. Allen was located in the back seat of the truck. Mr. Nwankwo was located at the back of Mr. Allen’s car with his hands on the package.
[5] The police arrested all four males located at the townhouse.
[6] The police later executed a search warrant at Mr. Allen’s house. They found 300 grams of cocaine hidden in the ceiling of the basement of the house. This seizure led to the imposition of an additional charge on Mr. Allen which is the subject of the application of severance of a count against him on the indictment.
[7] The trial of all three accused is set for June 1, 2020.
PARTIES’ POSITIONS
APPLICANT’S POSITION
[8] Ms. Locke submits the following:
Mr. Allen should be severed from his co-accused because his counsel of choice cannot attend the trial because he is “otherwise occupied”.
Count 8 against Mr. Allen requires a separate proceeding given that it has nothing to do with the co-accused.
To hold otherwise, a trial judge would be required to instruct a jury not to use the discovery of the 350 grams of cocaine in Mr. Allen’s home with respect to the other counts against Mr. Allen to mitigate any prejudicial effect flowing therefrom.
Severance of Mr. Allen would lead to a shorter trial against Mr. Nwankwo and Mr. Williams.
CROWN’S POSITION
[9] The Crown opposes the application for severance of either count 8 on the indictment or of Mr. Allen from the other accused for the following reasons:
Count 8 on the indictment should not be severed given that documents found in Mr. Allen’s home will be led by the Crown against all three accused with respect to the charge of conspiracy;
The Crown has no intention of calling Mr. Adams as a witness against his co-accused;
Severance of the accused would result in duplication of evidence and raise the spectre of conflicting decisions;
A limiting instruction can mitigate any prejudice which may arise if the accused are not severed;
Antagonistic defences favour having a joint trial;
Given that the Crown would still be required to call seventeen witnesses on the charge of conspiracy, even if the accused are severed, there would be no time savings if the application is granted.
[10] The trial date set for this case is already outside the acceptable delay period, based on the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Neither Mr. Nwankwo nor Mr. Williams has waived their s. 11(b) rights under the Canadian Charter of Rights and Freedoms.
GOVERNING PRINCIPLES
[11] Section 591(3) of the Code provides as follows:
(3) The court may, where it is satisfied that the interests of justice so require, order
(a) that the accused or defendant be tried separately on one or more of the counts; and
(b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts.
[12] Persons jointly indicted should be jointly tried where the case for the Crown is that the accused acted in concert: R. v. Weir (No. 4), 1899 CanLII 105 (QC CQ), 2 C.C.C. 351, at 352.
[13] In R. v. Durrant, 2019 ONCA 74, 144 O.R. (3d) 465, Watt J.A. citing R. v. Last, 2009 SCC 45, [2009] 146 and R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, listed the following factors to be considered in deciding whether or not a court should grant an application for severance:
i. general prejudice to the accused as a result of the influence of the volume of evidence adduced and the effect of verdicts across counts;
ii. the legal and factual nexus between or among counts;
iii. the complexity of the evidence;
iv. the desire of the accused to testify on one or more counts but not on another or others;
v. the possibility of inconsistent verdicts;
vi. the desire to avoid a multiplicity of proceedings;
vii. the use of evidence of similar acts;
viii. the length of trial;
ix. prejudice to the accused’s right to be tried within a reasonable time; and
x. the existence or likelihood of antagonistic defences.
See, Last, at para. 18; Jeanvenne, at para. 29.
[14] In R. v. Cummins, 2018 ONSC 5000, Quigley J. noted the following at para. 34:
In considering an application for severance, I am required to turn my mind to out long-standing confidence in the ability of juries to follow and apply difficult instructions. The Supreme Court of Canada has stated that the best way to balance rights and alleviate risks that the jury will misuse evidence is to ensure that jurors have all of the information they need along with a clear direction as to how they may use that information.
ANALYSIS
[15] This application raises the following issues:
Should the court grant the application request for an adjournment of the trial?
If not, should Mr. Allen be severed from his co-accused?
If not, should count 8 on the indictment be severed from the other counts on the indictment?
Should the request for an adjournment be granted?
[16] In answering this question, I note that Mr. Allen has the right to be represented by counsel of his choice at his trial. This is clearly important in cases where, as here, an accused faces very serious charges which carries the real risk, if Mr. Allen is convicted, of a lengthy period of incarceration.
[17] That right however, does not override all other factors. In my view, there are four pertinent factors which I must consider in deciding whether this request should be granted.
[18] First, the reason for the adjournment. Mr. Allen’s counsel advised the court that Mr. Allen’s trial counsel is “otherwise occupied”, with no further explanation. Second, this trial date was set on October 25, 2019 approximately three months ago. Third, neither Mr. Nwankwo nor Mr. Williams has waived their s. 11(b) Charter rights, which would be adversely impacted if their trial was adjourned. Fourth, an adjournment of this trial will inevitably place the charges against Mr. Allen’s co-accused in jeopardy given the Supreme Court of Canada’s decision in Jordan.
[19] Additionally, Mr. Allen has ample time to retain other counsel to represent him at trial if he decides to do so. His right to be represented by Mr. Locke, in the circumstances of this case, is not absolute and cannot trump his co-accused’s rights to have a trial in June of this year.
[20] For these reasons, the application for an adjournment is denied.
Should Mr. Allen be severed from his co-accused?
[21] The answer to this question involves a consideration of the factors set out by Watt J. in Durant.
General prejudice to Mr. Allen as a result of the influence of the volume of evidence addressed and the effect of verdicts across counts
[22] In my view, any such prejudice flowing from the influence of the evidence against other accused can be dealt with by carefully crafted limiting instructions to the jury. The jury is presumed to follow instructions and to conscientiously follow the law in accordance with the trial judge’s instructions. Furthermore, even if Mr. Allen was tried separately, he would still have to contend with the evidence from seventeen Crown witnesses concerning the allegations against him.
[23] For the above reasons, this factor does not favour severance.
The legal and factual nexus between or among counts
[24] There is a strong legal and factual nexus between or among the counts on the indictment. Save for count number eight, they all flow from the same transaction. The charge of conspiracy legally connects all accused together. Additionally, the Crown intends to seek a ruling based on the co-conspirator’s rule as a result of cellphone conversations between the accused.
[25] This factor, for the above reasons, favour a joint trial.
The complexity of the evidence
[26] There is nothing particularly complex about the evidence in this case that justifies severance. Most of the evidence involves the evidence of the officers who made observations of the accused and the suspect package.
[27] This factor does not favour severance.
The desire of the accused to testify on one or more counts but not on another or others
[28] There is no indication that Mr. Allen intends to testify on one or some counts but not on others. Furthermore, Mr. Allen would not be prevented, in a joint trial, from choosing not to testify on any count that he decides to.
[29] Based on the above, this factor does not favour severance.
The possibility of inconsistent verdicts
[30] In my view, this factor favours a joint trial. There is a real risk that separate trials in this case could result in inconsistent verdicts in a case where the evidence inextricably relates to all three accused.
Desire to avoid a multiplicity of proceedings
[31] This factor favours a joint trial. Severance of the accused would inevitably result in multiple proceedings and an inefficient use of court resources. In a jurisdiction such as Peel Region, where the problem of trial delay has been chronic, it is imperative that this scenario should be avoided at all costs.
Use of evidence of similar acts
[32] This factor is not an issue in this case. It therefore does not favour severance.
Length of trial
[33] Having a joint trial will not significantly prolong this trial. The evidence regarding the tracking of the package and subsequent arrest of all three accused is equally applicable to all three. In any event, having separate trials will make a significantly greater demand on limited court resources in a jurisdiction where trials have to be heard in adjoining jurisdictions.
[34] This factor therefore favours a joint trial.
Prejudice to the accused’s right to be tried within a reasonable period
[35] Severance will not affect Mr. Nwankwo and Mr. Williams’ s. 11(b) rights. However, as already noted, an adjournment of the trial would have this effect. Mr. Allen has waived his s. 11(b) rights if his request for an adjournment is granted.
[36] This factor favours severance.
The existence or likelihood of antagonistic defences
[37] There is a reasonable likelihood that there will be antagonistic defences in this case.
[38] In R. v. Suzack, 2000 CanLII 5630 (ONA); [2000] O.J. No. 100, Doherty J.A. noted at para. 87 that:
I begin with the proposition that persons accused of the joint commission of a crime should be tried together. That presumption applies with particular force where the co-accused are each alleging that the other is the guilty party.
[39] He further noted at para. 88 that:
Separate trials where co-accused are blaming each other for the crime raise not only the danger of inconsistent verdicts, but also a real concern that the truth will not be discovered at either trial. It is axiomatic that the truth of an allegation is best 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. If co-accused who are blaming each other for a crime are allowed to do so in separate trials, neither jury will have the benefit of that process. If the accused are tried separately, it is highly unlikely that either jury will hear the complete story.
[40] For the above reasons, this factor favours a joint trial.
CONCLUSION
[41] Mr. Allen’s motion for a severance from his co-accused is denied.
Should Count 8 be severed from the rest of the charges against the applicant?
[42] The investigation of the suspect package led to the importing and use of false identification charges against Mr. Allen. This resulted in the execution of the search warrant at Mr. Allen’s home and the recovery of illegal drugs and cellphone conversations that are relevant to the charge of conspiracy to import cocaine against all three accused. It would therefore be necessary for the Crown to elicit evidence regarding the search of Mr. Allen’s home and the evidence found for the Crown to attempt to prove its case against Mr. Allen on the conspiracy charge.
[43] For the above reasons, the application to sever count 8 on the indictment from the rest of the charges is denied.
CONCLUSION
[44] The application is denied.
André J.
Released: January 30, 2020
COURT FILE NO.: CR-19-1769-00
DATE: 2020 01 30
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
FITZROY ALLEN
RULING ON SEVERANCE APPLICATION
André J.
Released: January 30, 2020