COURT FILE NO.: 19-6283

DATE: 2020/12/11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHAWN LEBLANC and BRAELIN STEVENS

Applicants

John Semenoff, for the Crown

Ian Carter, for the Applicants

HEARD: November 4, 2020

RULING ON APPLICATION FOR severance

PHILLIPS J.

1Shawn Leblanc, Braelin Stevens and Nick Vanasse are jointly charged with aggravated assault on Bradley Butler, contrary to section 268 of the Criminal Code, R.S.C., 1985, c. C-46 (“the Code”). On the same indictment, Nick Vanasse is additionally charged with second degree murder, contrary to section 235 of the Code, in relation to the killing of Steven Butler.

2Messrs. Leblanc and Stevens apply for severance. They argue that the ordinary presumption that murder is to be tried on its own applies here. In their view, the alleged assault against Bradley Butler and the alleged murder of Steven Butler are not part of the same transaction. They see prejudice to their fair trial interests in being indirectly linked to the murder charge given the stigma associated with such an allegation and the fact that it eliminates their preferred option of a judge alone trial.

The Facts:

3Most of the key events were captured on video. The salient facts for present purposes are as follows:

• At approximately 2:30 a.m. on September 8, 2019, after a previous verbal interaction with Bradley Butler and a young adult named Dawson Kerr, Nick Vanasse approached the Butler residence at 227 Whitton Crescent. Mr. Vanasse approached the residence armed with a pellet gun. He fired at the residence and at an open upstairs window, from which Nicole Butler (Steven’s wife and Bradley’s mother) was speaking to him.

• As Mr. Vanasse fired at Mrs. Butler at the upstairs window, Mrs. Butler fell backwards. This prompted her husband, Steven Butler, to run downstairs and outside to deal with him. The only clothes Steven Butler had on were his bedtime shorts. Bradley Butler followed shortly behind his father.

• Mr. Vanasse fired the pellet gun toward Steven Butler. Mr. Vanasse then approached Steven Butler. When Steven Butler and Nick Vanasse were within arms length of each other, Mr. Vanasse lunged at Steven Butler and stabbed him in the chest.

• At this point Bradley Butler was just over a car’s length away.

• Within 4 seconds of the stabbing, video footage captures the shadows of Mr. Leblanc and Mr. Stevens, running toward Mr. Vanasse and the two Butlers as that group continues its confrontation in a moving way, rounding the street corner.

• After Messrs. Leblanc and Stevens got themselves proximate to Mr. Vanasse and the two Butlers, Steven Butler is heard to shout “he just shot me” as he retreats in apparent distress from the core group (in fact, Steven Butler was not shot but was stabbed in the chest and died shortly afterwards from this wound).

• Bradley Butler puts Mr. Vanasse to the ground and endeavours to strike blows upon him. Mr. Leblanc and Mr. Stevens involve themselves in this altercation. Bradley Butler receives a stab wound to his tricep, that is down to the bone, a stab wound to his left anterior chest, and two stab wounds to his lower abdomen.

• Within 45 seconds of Steven Butler being stabbed, Bradley Butler retreats, yelling out “I’m stabbed”. More precisely, it is 42 seconds from the time Steven Butler shouts “He just shot me” within earshot of all accused men, to when Bradley Butler can be heard yelling “I’m stabbed”.

The Law and Analysis:

4There are two headings that must be considered. First, it is argued that section 589 of the Code prohibits the joint trial of these charges and therefore severance is required. Alternatively, it is submitted that severance should be granted in accordance with section 591(3) of the Code.

Section 589

5Section 589 of the Code provides, inter alia, as follows:

589. No count that charges an indictable offence other than murder shall be joined in an indictment to a count that charges murder unless

(a) the count that charges the offence other than murder arises out of the same transaction as a count that charges murder.

6The question is: does the conduct of Vanasse, Leblanc and Stevens which underpins the aggravated assault charge in relation to Bradley Butler arise out of the “same transaction” as the conduct of Vanasse, that underpins the second-degree murder charge in relation to Steven Butler?

7In R. v. Manasseri, 2016 ONCA 703, [2016] O.J. No. 5004 (CA), Justice Watt, for the Court of Appeal, states as follows at paragraph 79:

79 It is neither necessary nor desirable for my purposes to essay an exhaustive definition of the term "transaction" as it appears in s. 589(a). Nor is it necessary to strictly import the interpretations that have been offered in relation to other provisions. It is enough to say that a "transaction" is not confined to a single event or occurrence. Rather, the term, almost inherently, can and does embrace a series of connected acts or events that extend over a period of time. In this case, although discrete events committed by different people, they reveal an underlying factual, legal and temporal unity that permits them properly to be labeled as part of "the same transaction".

8In my view, the events giving rise to the fatal wound to Steven Butler and the non-fatal wounds to Bradley Butler share a factual and a temporal connection. The two men were stabbed within a minute of each other in what was clearly an ongoing and dynamic affray, within a distance one could walk in seconds. The two instances of violence are so connected that one cannot be explained or understood without the other.

9The real question is whether the two events share a legal connection. The accused men submit that since they arrived on the scene after the alleged murder, that act has nothing to do with them. I cannot agree with this submission. As I see it, the two transactions are legally related in very important ways.

10It is apparent that the trial of the aggravated assault counts will involve issues of party liability pursuant to section 21 of the Code. Furthermore, it can be anticipated that the Crown will have to negative the notions of self defence and/or defence of another. Necessarily, therefore, the trial on the aggravated assault counts will delve into what Mr. Leblanc and Mr. Stevens knew when they decided to become the third and fourth men into the fight underway between Bradley Butler and Nick Vanasse.

11Section 21 of the Code speaks to party liability attaching to anyone who acts “for the purpose” of aiding someone else to commit an offence. A central issue in the trial will likely be Mr. Leblanc’s and Mr. Stevens’ “purpose” in acting as they did. Were they coming in aid of a friend being assaulted? Or were they jumping in to help a friend engaged in assault? The answer will hinge on what they knew by the time they delivered blows to Bradley Butler. What they knew could depend on what was there to hear and see in the time leading up to their decisions.

12The same sort of thing applies in respect of self defence. Section 34 of the Code provides that a person is not guilty of an offense if they believe on reasonable grounds that force is being used against them or another person, they are motivated to defend or protect themselves or the other person and they act in a way reasonable in all the circumstances. The trial will involve, therefore, an analysis of what Mr. Leblanc and Mr. Butler perceived as they approached, as well as whether their subsequent motivations and actions were reasonable.

13In my view, the fact that both Mr. Leblanc and Mr. Butler would have heard Steven Butler, referring obviously to Nick Vanasse, shout “he just shot me” as he began to retreat in distress links the act upon Steven Butler which turned out to be a homicidal one to the violence upon Bradley Butler that followed immediately thereafter.

14I am aware that Steven Butler was stabbed and not shot. Nonetheless, those arriving to hear him say “he just shot me” as he left in distress would have understood that Mr. Vanasse had just meted out some significant violence. Accurate or not, that information would have been in the minds of those who acted thereafter in respect of Bradley Butler. Indeed, that information has bearing on section 34 questions related to that second confrontation. Who was the aggressor? What was animating Bradley Butler? Was there relevant history, including any prior use of force on the part of Mr. Vanasse? Was Nick Vanasse armed?

15It would not be possible in the circumstances to properly deal with the section 21 or section 34 issues in this case as if the violence inflicted upon Steven Butler has nothing at all to do with the violence inflicted upon Bradley Butler that followed immediately afterward.

16I conclude that the allegedly murderous act said to have been committed by Nick Vanasse against Steven Butler is intertwined with the analysis called for in respect of the Leblanc and Stevens’ approach to Bradley Butler. The two events share a factual connection, temporal connection, and importantly, a legal connection. As such, the aggravated assault charges arise out of the same transaction as the murder and should be tried on the same indictment as contemplated by section 589 of the Code.

Section 591(3)

17Section 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 ore more of them be tried separately on one or more of the counts.

18The Supreme Court in R. v Last considered the principles of severance in relation to section 591(3). The following comments of the Court are instructive:

The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in the interests of justice, as per s. 591(3) of the Code. The interests of justice encompass the accused's right to be tried on the evidence admissible against him, as well as society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.

Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed when deciding whether to sever or not. The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial. It is important to recall that the interests of justice often call for a joint trial. Litchfield, where the Crown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example. Severance can impair not only efficiency but the truth-seeking function of the trial.

The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a particular case, avoiding an injustice. Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co-accused persons: R. v. E. (L.) (1994), 1994 1785 (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.), at p. 238; R. v. Cross (1996), 1996 5992 (QC CA), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419; R. v. C. (D.A.) (1996), 1996 8341 (BC CA), 106 C.C.C. (3d) 28 (B.C. C.A.), at para. 9, aff'd 1997 397 (SCC), [1997] 1 S.C.R. 8 (S.C.C.).

R. v Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at paras. 16 – 18

19As I have explained, there is such a temporal and factual connection between the alleged murder and the alleged aggravated assault that the latter simply cannot be properly understood without knowledge of the former. Moreover, to judge the decisions and actions of Mr. Leblanc and Mr. Stevens as against Bradley Butler, one needs to know both what was apparently animating Bradley Butler and what was also known to Messrs. Leblanc and Stevens about the recent actions and abilities of Nick Vanasse. It seems to me, therefore, that the evidence of the Vanasse actions vis-a-vis Steven Butler, has significant probative value in respect of the subsequent alleged aggravated assault.

20I can readily agree that murder is the most serious offense in our criminal law. It seems intuitive that anyone deemed guilty of murder would consequently suffer stigma in the eyes of any trier of fact and those associated with that person would not want such stigma to spill over onto them while being simultaneously tried alongside. Having said that, however, I see the risk of such prejudicial effect in these circumstances to be very low.

21I note that both Butlers were injured by knife. Steven Butler stabbed but once, unfortunately succumbed. Bradley Butler stabbed more than once, survived. The principal thing that separates the murder and the aggravated assault is the result. It is not as if the murder method used on Steven Butler was out of line with the treatment of Bradley Butler. This is not a case where the murder count is particularly heinous or shocking in comparison to other alleged misconduct.

22There is some evidence that both Mr. Leblanc and Mr. Stevens had knives on them that night. This is not a case where there is risk of danger of propensity reasoning in respect of Mr. Leblanc and Mr. Stevens due to evidence of bad character of Nick Vanasse. While the murder evidence is relevant to the aggravated assault, as discussed above, I fail to see how Mr. Vanasse’s conviction on the murder would make it more likely that either Mr. Stevens or Mr. Leblanc would find himself convicted of the subsequent aggravated assault.

23This is not a case where either Applicant might choose to testify on one count and not the other. The Applicants are jointly charged with but one count.

24Severing the counts would result in the duplication of much of the evidence. The evidence of the stabbing of Steven Butler and the actions of Vanasse and the Butlers would be relevant and important evidence for the trier of fact on the aggravated assault charge. There is a strong public interest in avoiding a multiplicity of proceedings. In the present case there is a significant overlap in the evidence that would have to be called at separate trials.

25In all the circumstances, I see no fundamental fairness difference between the different modes of trial. Indeed, the strong public interest in there being but one trial in this matter outweighs any individual’s preference for a judge alone trial.

26The application for severance is dismissed.