I. Overview

[1] Bouh Abdilleh is being jointly prosecuted for first degree murder along with two other men, Lamar Hamilton and Julian Perry, in connection with the September 2016 shooting death of Silveiro Feola. A fourth co-defendant, Marla Zambrano, is charged as an accessory after the fact.[^1] The Crown intends to try all four defendants together. Pre-trial motions have been scheduled for the summer and fall of this year and the trial proper is set to begin in November 2020 and to continue for several months. I am the assigned trial judge.

[2] Mr. Abdilleh seeks to be tried separately from his three co-defendants and brings an application for severance.[^2] He maintains that a joint trial would be unfair to him because the Crown plans to adduce recordings of electronically intercepted conversations between Mr. Hamilton and various other people, including Ms. Zambrano, as well as different recordings of conversations between Mr. Perry and various third parties. Mr. Abdilleh is not himself a party to any of these intercepted conversations,[^3] and nothing his co-defendants say on these recordings will be properly admissible against him for their truth.

[3] These recordings do not incriminate Mr. Abdilleh directly. However, they are potentially incriminatory of Mr. Hamilton and Mr. Perry. Mr. Abdilleh argues that he will be prejudiced if the jury that tries him hears these recordings, because the Crown’s case against him will be built in part on evidence of his association with Mr. Hamilton and Mr. Perry on the day of the homicide. His concern is that the jurors may use Mr. Hamilton and Mr. Perry’s statements on the recordings to find them guilty, and then conclude that Mr. Abdilleh is also guilty based on his association with them. He argues that this would result in the jury indirectly relying on evidence that is not properly admissible against him.

II. Factual background

[4] On the night of September 21, 2016 three men entered the deceased’s house in Vaughan. Mr. Feola was in the living room at the time with his wife and his father. One of the intruders began punching Mr. Feola, at which point another of the intruders reached over the first man and shot Mr. Feola in the chest. The three intruders then left the house without taking anything of value.

[5] Mr. Feola’s wife and his father did not recognize or positively identify any of the intruders, but both described all three men as having dark skin and both recalled the shooter being taller than the other two men.

[6] The Crown alleges that Mr. Abdilleh was the first intruder who punched Mr. Feola, and that the other two men were Muhumad Idow (who the Crown alleges was the shooter, but who was discharged at the preliminary inquiry) and Hussein Ali (who has not yet been arrested). The Crown maintains that the three men arrived at the scene together in a dark-coloured sedan that can be seen on CCTV footage recorded by a camera at a neighbouring house.

[7] The Crown’s theory in relation to Mr. Hamilton and Mr. Perry is that they also came to the scene of the shooting in a separate vehicle, but did not enter Mr. Feola’s home. The Crown’s position is that all five men were engaged in a joint plan to kill Mr. Feola.

[8] The Crown plans to adduce cell phone call and tower records that track Mr. Abdilleh’s phone on the night of the shooting from a cell tower near his home in North York to a tower near Mr. Feola’s home in Vaughan, and then back to his own neighbourhood. These records also show that during this time there were multiple communications between Mr. Abdilleh’s phone and cell phones that are associated with Mr. Hamilton and Mr. Perry. The day after the shooting Mr. Abdilleh cancelled his cell phone number and went to Ottawa.

[9] In April 2018, approximately a year and a half after Mr. Feola’s death, the police obtained wiretap authorization orders for Mr. Abdilleh, Mr. Hamilton and Mr. Perry’s phones, as well as authorizations that allowed them to install hidden microphones in Mr. Perry’s home and vehicle. They then contacted some of the suspects’ friends and family members in an attempt to stimulate conversations on the wires.

[10] Mr. Abdilleh proceeded to have several telephone conversations with his mother in which she reported that the police had come to her workplace and questioned her about his involvement in the murder and about his phone number. He expressed interest in what the police had asked her, and told her to tell them that the phone had belonged to his brother.

[11] During this same time period the police intercepted multiple phone conversations between Mr. Hamilton and various other people, including with his co-defendant Ms. Zambrano and with Hussein Ali, who the Crown alleges was the third intruder. They also intercepted a number of conversations between Mr. Perry and several different people. As discussed further below, during these conversations Mr. Hamilton and Mr. Perry made a number of statements that can be interpreted as self-incriminatory. However, Mr. Abdilleh’s name is never mentioned by any of the parties to these conversations.

III. Analysis

A. General principles

[12] Section 591(3)(b) gives trial judges a broad discretionary power to sever counts in an indictment or grant separate trials to jointly charged co-defendants when “satisfied that the interests of justice so require”. In R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, Deschamps J. observed (at para. 16):

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.

She went on to set out a non-exhaustive list of factors that bear on the question of whether the interests of justice require there to be separate trials. Some of these factors are only relevant when a defendant seeks severance of counts, but others apply in cases where a defendant seeks a separate trial from his or her co-accused. These latter factors included:

(a) the general prejudice to the accused anticipated to result from a joint trial;

(b) the complexity of the evidence;

(d) the desire to avoid a multiplicity of proceedings;

(e) the length of the trial having regard to the evidence to be called;

(f) the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and

(g) the existence of antagonistic defences as between co‑accused persons.

See Last, supra at para. 18.

[13] As Doherty J.A. noted in R. v. Savoury, 2005 CanLII 25884 at para. 22 (Ont. C.A.):

The interests of justice encompass those of the accused, the co-accused, and the community as represented by the prosecution. The trial judge must weigh these sometimes competing interests and will direct severance only if the accused seeking severance satisfies the trial judge that severance is required.

Since Mr. Abdilleh’s co-defendants take no position in response to his application for severance, the only relevant competing interests here are those of Mr. Abdilleh and the Crown.

B. The relevant factors

[14] The severance jurisprudence recognizes a presumption “that persons accused of the joint commission of a crime should be tried together”[^4], that “applies with particular force where the co-accused are each alleging that the other is the guilty party”.[^5] In the case at bar, the Crown’s position is that Mr. Abdilleh, Mr. Hamilton and Mr. Perry all participated in a joint enterprise to kill Mr. Feola, but that a different man actually shot and killed him. In these circumstances, where none of the three defendants have any discernible incentive to try to portray any of the other two as the actual killer, the prospect of them advancing antagonistic defences at trial is significantly reduced. Accordingly, the main question I must consider is whether the risk of Mr. Abdilleh being prejudiced by the introduction of evidence at a joint trial that is inadmissible against him is so substantial that it outweighs the costs and inefficiencies that would result from ordering separate trials.

1. Prejudice to Mr. Abdilleh from a joint trial

[15] The main thrust of Mr. Abdilleh’s argument is that he will not be able to receive a fair trial if the jury that tries him hears Mr. Hamilton and Mr. Perry’s intercepted conversations, which arguably support the inference that they were involved in Mr. Feola’s murder. Mr. Abdilleh argues that these conversations are wholly inadmissible as evidence against him. Although none of these conversations directly implicate Mr. Abdilleh – his name is never mentioned by any of the participants – he maintains that if the jury relies on these intercepts to find either Mr. Hamilton or Mr. Perry guilty, and then goes on to find Mr. Abdilleh guilty based in part on his association with them, the result will be that Mr. Abdilleh will have been indirectly convicted on the strength of evidence that is not properly admissible against him.

[16] Mr. Abdilleh also argues that there is a more direct risk of prejudice that arises from the statements made in some of the intercepted conversations, discussed further below, in which the participants suggest that “Somalians” may be implicated in the killing of Mr. Feola. Mr. Abdilleh is Somalian.

[17] The prospect of evidence being adduced at a joint trial that is only properly admissible against some co-defendants can sometimes raise sufficiently serious trial fairness concerns to require severance: see, e.g., Guimond v. The Queen, 1979 CanLII 204 (SCC), [1979] 1 SCR 960. However, as discussed below, the case law also recognizes that these concerns can often be addressed by measures short of severance, including judicial editing and limiting jury instructions.

[18] While the trial fairness concerns Mr. Abdilleh raises are genuine, I am not persuaded that they are as severe as he makes them out to be, for three main reasons.

a) The intercepts do not directly incriminate Mr. Abdilleh

[19] First, the statements made on the intercept conversations to which Mr. Abdilleh’s co-accused are parties are not directly inculpatory of Mr. Abdilleh, whose name is never mentioned by any them. The only potential source of direct incrimination comes in the form of comments that are made in a few conversations in which it is suggested that “Somalians” may be implicated in Mr. Feola’s death, or at the very least that this was what the police believed. Specifically:

(a) During one intercepted phone conversation Mr. Hamilton’s sister tells him that the police showed her a picture of “a Somalian guy from Driftwood”, and that she had told them she had seen this man before, to which Mr. Hamilton replies: “Why would you say that?”;

(b) In another conversation, an unknown woman tells Mr. Perry that the police had shown her photos of “three Somalian guys and then you”;

(c) In a third intercepted conversation between Mr. Perry and his girlfriend, she speculates that “someone talked” and later states that “one of the Somalians must have (unintelligible)”.

Mr. Abdilleh, who is himself Somalian, is concerned that the jury will draw improper inferences from these utterances.

[20] While I agree that this is a legitimate concern, I also believe it can be addressed by measures short of severance. The jurors can be given a strong limiting instruction in which they are directed that nothing said on the intercepts is useable for the truth of its contents as evidence against Mr. Abdilleh, and can also be told not to speculate about why the police and Mr. Perry’s girlfriend apparently believed that Somalians were involved in the shooting death of Mr. Feola. They can also be instructed more pointedly that it would be entirely speculative for them to conclude that Mr. Hamilton’s comment to his sister had anything to do with Mr. Abdilleh, who did not live in the Driftwood area of North York. If necessary, the intercept recordings can be edited to remove the potentially prejudicial references to Somalians, which appear in only a small fraction of the recorded conversations.

[21] The remaining intercepts are not in any way directly inculpatory of Mr. Abdilleh. This distinguishes this case from the situation in Guimond, supra, where one accused charged with conspiracy had made a police statement in which he had admitted to having conspired with his co-accused. This statement was entirely inadmissible against the co-accused, and the Supreme Court of Canada noted in obiter that the co-accused’s severance application at trial should have been granted.[^6] Likewise, in R. v. Figliola, 2011 ONCA 457 the Ontario Court of Appeal held that severance should have been granted in a case where one accused made a statement in which she admitted to hiring her co-accused to kill her husband, holding that the limiting instructions that were given in this case directing the jury to only use this statement against its maker “would have significantly taxed the jury's common sense”.[^7]

[22] However, the appellate cases emphasize that severance is not automatic whenever evidence that is admissible only against one accused is adduced in a joint trial, even in situations where the evidence at issue directly implicates a co-accused against whom it is inadmissible. Rather, the Ontario Court of Appeal has held that in this situation the risk of prejudice can usually be controlled by limiting instructions. In R. v. Tom, 1997 CanLII 793 (Ont. C.A.), the Ontario Court of Appeal found that the trial judge had not erred by refusing severance in a case where Tom’s co-accused Joseph had made a confession that also incriminated Tom. The Court of Appeal distinguished Guimond on the basis that in that case (at para. 3):

…the court directed a severance where the evidence tendered was such as could not be ignored by a jury, no matter how carefully instructed. The evidence was a statement by one accused implicating the second accused in a conspiracy. The court's reasoning was that if a jury believed the statement in respect of the accused who made it, the compulsion for consistency would drive the jury to find that they conspired together. Here, there is no such intrinsic problem with the evidence. The statement is severable and can be readily applied to Joseph without reference to Tom. The trial judge took extraordinary care to assure that the statement was not misused by the jury and we think the normal assumption should be made that a jury listens to and follows directions from the court.

Likewise, in R. v. Hamilton, 2011 ONCA 399 the Court held that the trial judge had been “correct to refuse severance”[^8] in a case where the Crown adduced wiretaps in which several of the defendants discussed killing one of their co-accused, Reid, apparently “because they were concerned that he would divulge information to an undercover police officer”[^9] about the murders with which they were jointly charged. The Court of Appeal held that the risk of prejudice arising from the admission of this evidence could be adequately addressed by instructing the jury that these wiretaps were inadmissible against Reid, stating (at paras. 213-14):

The jury would have understood these instructions, as well as those given mid-trial, and would have followed them. This is especially true given that the Crown also provided an additional warning to the jury during its closing address about not using the co-accused’s intercepts against Reid.

[214] It is well established that juries should be assumed to understand and follow such instructions: R. v. Suzack [supra] at paras. 99-102, (application for leave to appeal dismissed, [2000] S.C.C.A. No. 583), quoting R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 692-93. We see no reason to believe that the jury did not understand the trial judge’s instructions. On the contrary, we assume that the jury properly considered the plot to kill Reid when weighing the evidence against the co-accused, and then disregarded this same evidence when turning their minds to the guilt of Reid.

[23] In my view, the risk of prejudice Mr. Abdilleh faces is substantially less severe than the danger that arose in both Tom and Hamilton, since none of the intercept recordings that are substantively admissible against his co-accused are directly incriminatory of Mr. Abdilleh. The jury in this case will not have to engage in the logical gymnastics that were required of the jurors in Guimond and Figliola, where using the statements for their truth against one accused necessarily implied that the other co-accused must also be guilty.

b) The intercepts are not wholly inadmissible against Mr. Abdilleh

[24] Second, Mr. Abdilleh’s assertion that the intercepts of conversations to which he is not a party are wholly inadmissible against him is in my view overly simplistic and legally incorrect.

[25] The statements made out of court by Mr. Abdilleh’s co-defendants and the other participants in their conversations are presumptively inadmissible against Mr. Abdilleh if they are used as hearsay: that is, as evidence of the truth of their contents. However, as Charron J. noted in R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57 at para. 36, “[t]he purpose for which the out-of-court statement is tendered matters in defining what constitutes hearsay because it is only when the evidence is tendered to prove the truth of its contents that the need to test its reliability arises.” Out-of-court statements are admissible as non-hearsay if they support a chain of reasoning that does not require their truth to be assumed. As Watt J.A. explained in R. v. Candir, 2009 ONCA 915 at para. 56:

The prosecutor may tender explicit statements of the declarant’s state of mind or statements that give rise to an inference about the declarant’s state of mind. The former are hearsay and require an exception to establish their admissibility. The latter are not hearsay and are admitted as circumstantial evidence from which the declarant’s state of mind may be inferred …

See also the analysis of Doherty J. (as he then was) in R. v. P.(R.) (1990), 58 C.C.C. (3d) 334 at p. 341 (Ont. H.C.).

[26] In the case at bar, a number of the intercepted conversations involving Mr. Abdilleh’s co-defendants appear to acquire their probative value entirely through non-hearsay chains of reasoning. For example, there are several telephone conversations between Mr. Hamilton and Ms. Zambrano where he instructs her about what to tell the police, chastises her for giving them too much information, or praises her for concealing things from them. The fact that Mr. Hamilton said these things to Ms. Zambrano has probative value as circumstantial evidence of his state of mind, without having to assume that anything he said to her was true. Moreover, Mr. Hamilton’s state of mind at the time of these conversations is potentially relevant to the Crown’s case against Mr. Abdilleh. The prosecution is entitled to try to establish Mr. Abdilleh’s guilt by pointing to his numerous phone contacts with Mr. Hamilton on the night of the shooting and attempting to demonstrate that Mr. Hamilton is himself implicated in the killing. While the Crown must only do this on the basis of evidence that is not inadmissible against Mr. Abdilleh, the rules of evidence do not bar the Crown from using Mr. Hamilton’s statements as evidence against Mr. Abdilleh as long as his statements are used only for a non-hearsay purpose. This is the case regardless of whether Mr. Abdilleh is tried separately or together with his co-defendants.

[27] There are also a number of intercepted conversations that contain statements by one of Mr. Hamilton or Mr. Perry that have potential probative value through both hearsay and non-hearsay chains of reasoning. For example, in several conversations with his girlfriend Mr. Perry appears to discuss the evidence he thinks the police might have against him, what the Crown would have to prove in order to link him to the homicide, and what sentence a party to the homicide might receive. These statements will be hearsay – and presumptively inadmissible as evidence against Mr. Abdilleh – if they are used to establish the truth of Mr. Perry’s express or implied factual assertions. For example, his statement to his girlfriend that “[t]here is no way they have me on camera” would be hearsay if it is used to establish as fact that this was what he actually believed, which might in turn support inferences about why he believed this, and what he knew about the circumstances in which Mr. Feola was killed. However, Mr. Perry’s statements about other matters, such as what the Crown must prove to obtain a conviction or about the applicable sentencing range for a party, have potential probative value as non-hearsay circumstantial evidence, insofar as his apparent interest in these subjects potentially allows inferences to be drawn about his state of mind without assuming that his statements accurately reflect his true beliefs.

[28] Mr. Perry’s intercepted statements are not admissible as evidence against Mr. Abdilleh on this first basis – as hearsay – but the rules of evidence do not bar their admission against Mr. Abdilleh in support of non-hearsay chains of reasoning. This will be the case whether Mr. Abdilleh is tried separately or together with his co-accused.

[29] Finally, there is a third group of intercepted conversations that contain statements by Mr. Abdilleh’s co-accused that would seem to only have probative value if they are used as hearsay. For example, during a telephone conversation with someone named Kadeen Reid, Mr. Hamilton is recorded speaking in cryptic terms about a “mission” he went on that “was a success”, and replying to a question from Mr. Reid about “the whizzle” by saying: “it’s gone bro long time. Like gone like like off the fucking map”. The Crown may urge the jury to interpret this conversation as a discussion by Mr. Hamilton of disposing of a gun, and to conclude that his statements about this are true. If used in this way the statements are admissible only against Mr. Hamilton himself. Conversely it is not apparent that these statements have any legitimate non-hearsay use in relation either to Mr. Hamilton himself or to any of his co-defendants, including Mr. Abdilleh.

[30] In summary, if Mr. Abdilleh is tried jointly with his three co-defendants, the intercept recordings to which his co-accused are parties will have to be divided into three groups: those that have probative value only as hearsay, those that have probative value through both hearsay and non-hearsay chains of reasoning, and those that acquire their probative value exclusively as non-hearsay. If he were tried separately, the recordings in the latter two categories would still be admissible against him as evidence, subject to balancing their probative value against their prejudicial effect.

[31] I acknowledge that if recordings in all three groups are put into evidence at a joint trial the jury will have to be given quite complicated instructions about their permissible and impermissible uses against each of the co-defendants, which will have to be particularly complex in relation to the statements that are admissible against their makers as both hearsay and non-hearsay, but against the other defendants only for non-hearsay purposes. However, if Mr. Abdilleh were tried separately at least some of these recordings would still be admissible as evidence against him and the jury would still have to be given fairly complex instructions about their permissible use only as non-hearsay. In short, granting severance to Mr. Abdilleh would not entirely eliminate the need for the jurors that try him to be given complicated jury instructions about the use they can make of this evidence.

c) Some or all of the intercepts may not be admitted as evidence in the joint trial

[32] A third relevant consideration is that it is still uncertain how many of these intercept recordings will actually be admitted into evidence at a joint trial. The transcripts provided to me indicate that significant portions of some of the conversations involving Mr. Perry – those recorded on the car and room probes – are apparently “unintelligible”. This may affect their admissibility for either hearsay or non-hearsay purposes: see R. v. Ferris, 1994 CanLII 31 (SCC), [1994] 3 S.C.R. 756; R. v. Hunter, 2001 CanLII 5637, 155 C.C.C. (3d) 225 (Ont. C.A.).

[33] Moreover, my understanding is at least some of the co-defendants who are parties to the intercepted conversations intend to challenge the admissibility of the recordings relating to them on Charter grounds. Although Mr. Abdilleh has no standing to bring his own Charter challenge to the admissibility of the recordings of conversations to which he was not himself a party, if any recordings are excluded as evidence against any of Mr. Abdilleh’s co-defendants this may as a practical matter prevent the Crown from adducing them as evidence against Mr. Abdilleh in a joint trial. Accordingly, it is possible that the concerns that have led Mr. Abdilleh to seek severance will not actually arise.

2. Factors supporting a joint trial

[34] On the other side of the ledger there are a number of factors that tend to favour trying all of the co-defendants in this case together. As noted above, it is “well-established that there is a strong presumption that co-accused who are alleged to have acted in concert are to be tried together”.[^10] The three main pragmatic factors in Last, supra – namely, “the complexity of the evidence”, “the desire to avoid a multiplicity of proceedings”, and “the length of the trial having regard to the evidence to be called” in my view all strongly favour a joint trial.

[35] The joint trial of all four defendants is currently scheduled to last for two or three months. Much of the evidence relied on by the Crown – particularly the cell phone evidence and the wiretap recordings – can fairly be described as “complex”. Severing Mr. Abdilleh from the joint trial is unlikely to make the proceedings against the remaining defendants appreciably shorter, since the wiretap recordings that relate specifically to Mr. Abdilleh are much less extensive than those relating to his co-defendants, and since the Crown would likely still have to adduce most, if not all, of the cell phone evidence.

[36] Conversely, I am not persuaded that Mr. Abdilleh’s estimate that a stand-alone trial of him alone would take only three or four weeks is realistic. As discussed above, the Crown is likely to still seek to adduce many if not all of the intercept recordings involving Mr. Hamilton and Mr. Perry in support of non-hearsay chains of reasoning. Much of the remaining evidence would also still have to be presented at Mr. Abdilleh’s trial, including the cell phone record evidence and the testimony of the deceased’s wife and father. In short, granting severance would come at a considerable price, in terms of both the added financial expense of having to run two trials and the human costs that would result from requiring the deceased’s family members to testify in two separate proceedings.

3. Neutral factors

[37] The remaining Last factors are in my view largely neutral. Granting severance to Mr. Abdilleh will delay his trial by at least several months, but he has undertaken to waive his s. 11(b) Charter rights in relation to any delay resulting from his severance application. While this does not completely neutralize all concerns about delay, since there is also a societal interest in Mr. Abdilleh receiving a speedy trial which his s. 11(b) waiver does not address,[^11] it does reduce the importance of this factor in the analysis.

[38] As discussed previously, there is also relatively little prospect in this case of the main co-defendants advancing mutually antagonistic “cut-throat” defences. Unlike many joint homicide trials where the question of which co-defendant actually killed the deceased looms large,[^12] the Crown’s theory in the case is that none of the defendants currently before the court was the actual shooter. While trials are dynamic and unpredictable and things can change, at this point it does not seem that any of Mr. Abdilleh, Mr. Hamilton or Mr. Perry will have anything to gain by taking the position that one or both of their co-defendants is necessarily guilty, since in the circumstances this will not reduce their own degree of culpability. To the contrary, such a defence strategy would seem to be counterproductive insofar as the Crown’s theory is that the inference that the killing of Mr. Feola was a planned and deliberate murder can be drawn from the extent of the “planning and orchestration” between all three defendants, as reflected in the cell phone records.

[39] Separate trials always present some risk of inconsistent verdicts, since different triers of fact may draw different factual conclusions from the same evidence. However, I agree with Mr. Couse that this is less of a concern here than it is in many homicide cases with multiple defendants, given the Crown’s position that none of the defendants currently before the court was the actual shooter and that Mr. Hamilton and Mr. Perry were not physically present in the house when Mr. Feola was shot and killed. If the jury that tries Mr. Hamilton and Mr. Perry concludes that they knowingly participated in a scheme to carry out a planned and deliberate murder, it would not logically follow that Mr. Abdilleh must necessarily himself have also been a knowing participant in the plot, or vice versa. Moreover, while the Crown may have a case against Mr. Abdilleh for constructive first degree murder if the jury concludes that Mr. Feola was being forcibly confined when he was shot, it is questionable whether this route to liability will be available in relation to Mr. Hamilton or Mr. Perry, given the Crown’s position that they were not physically present when Mr. Feola was killed.[^13]

[40] The Crown submits that if severance were granted and some but not others of the co-defendants were convicted, this would “cause the public to lose faith in the justice system, as it is clear that the murder was a joint enterprise”. The Crown argues further:

Also, the planning and orchestration of the incident leading up to the murder is at the core of the Crown’s argument that the murder was planned and deliberated. Severing one accused so that the triers of fact do not hear all of that evidence will severely undermine the Crown’s position on that issue.

I do not accept either of these submissions. While it may be clear that Mr. Feola was shot and killed during a “joint enterprise” of some sort, the question of whether it was a planned and deliberate murder as opposed to a robbery gone wrong is likely to be a contested issue at trial, as is the question of the identity of the participants. The issue of whether the interests of justice require severance cannot in my view be decided by assuming that the Crown will prevail on these disputed factual matters.

[41] Moreover, I do not agree that divergent verdicts will necessarily erode public confidence in the justice system, nor do I agree that the Crown has any free-standing entitlement to have the triers of fact “hear all the evidence”, including the evidence that is not properly admissible against all of the defendants. While joint trials advance a number of important policy objectives, they are not intended to be a way for the Crown to circumvent the rules of evidence by presenting inadmissible evidence to the jury in the hope that the jury will ignore any limiting instructions they are given about how this evidence can be used. To the contrary, in my view, a reasonable and well-informed member of the public would understand that decisions in criminal trials must be reached in accordance with the rules of evidence, and that different verdicts against different co-accused will sometimes be justified by the differences in the strength of the admissible evidence against each of them.

C. Balancing the relevant factors

[42] On balance, I am not persuaded that Mr. Abdilleh has met his burden of displacing the presumption that he and his co-defendants should be tried jointly. While there is some danger that the jury will have difficulty following my instructions and deciding the case against Mr. Abdilleh solely on the basis of the evidence that is properly admissible against him, the risk of prejudice is in my view much less severe than it would be if the intercepted conversations involving his co-defendants had incriminated him directly. On the other side of the scales, conducting two lengthy separate trials in which the Crown would have to adduce substantially the same evidence in both proceedings would tax this court’s scarce resources, as well as taking a personal toll on the members of Mr. Feola’s family who would have to testify twice. While these costs would be unavoidable if the only alternative was an unfair trial for Mr. Abdilleh, I am not satisfied that he cannot receive a fair trial if he is jointly tried with Mr. Hamilton, Mr. Perry and Ms. Zambrano.

IV. Disposition

[43] In the result, Mr. Abdilleh’s application for severance is dismissed. I should emphasize that any decision reached at this very early stage of the proceedings is necessarily provisional, and may need to be revisited if the situation materially changes. Accordingly, this Ruling should not be understood as precluding Mr. Abdilleh from renewing his application for severance at a later date if there is a material change in circumstance.

The Honourable J. Dawe

Released: January 7, 2020

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

BOUH ABDILLEG

RULING ON SEVERANCE APPLICATION

The Honourable J. Dawe

Released: January 7, 2020

[^1]: A fifth co-defendant, Muhumad Idow, was discharged at the conclusion of the preliminary inquiry, and on December 19, 2019 I dismissed the Crown’s application for certiorari review of his discharge.

[^2]: Mr. Abdilleh has no objection to being tried jointly with Mr. Idow in the event that the Crown successfully appeals from my Ruling upholding Mr. Idow’s discharge or prefers a direct indictment against him.

[^3]: The Crown also intends to adduce different recordings of some other intercepted conversations between Mr. Abdilleh and persons other than his co-defendants.

[^4]: R. v. Suzack, 2000 CanLII 5630 at para. 87; see also: R. v. Savoury, supra at para. 22, R. v. Hamilton, 2011 ONCA 399 at para. 207.

[^5]: R. v. Suzack, supra at para. 87.

[^6]: The appellant in the Supreme Court of Canada in Guimond was the defendant who had made the police statement, rather than the co-accused who had been prejudiced by its admission at the joint trial. The Quebec Court of Appeal had already allowed the co-accused’s appeal and ordered a new trial for him alone, and he did not participate in Guimond’s further appeal to the Supreme Court of Canada.

[^7]: R. v. Figliola, supra at para. 103.

[^8]: R. v. Hamilton, supra at para. 218.

[^9]: R. v. Hamilton, supra at para. 203.

[^10]: R. v. Gayle, 2017 ONCA 297 at para. 37.

[^11]: See R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 SCR 1199 at pp. 1219-23.

[^12]: See, e.g., R. v. Suzack, supra; R. v. Cummins, 2018 ONSC 5000.

[^13]: See R. v. Harbottle (1993), 1993 CanLII 71 (SCC), 84 C.C.C. (3d) 1 at pp. 13-14 (S.C.C.); R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, 2001 S.C.C. 78; R. v. Ferrari (2012), 2012 ONCA 399, 287 C.C.C. (3d) 503 (Ont. C.A.); R. v. Tsega, 2019 ONCA 111 at paras. 88-91.

R. v. Abdilleh, 2020 ONSC 87

Case Summary

I. Overview

II. Factual background

III. Analysis

A. General principles

B. The relevant factors

1. Prejudice to Mr. Abdilleh from a joint trial

a) The intercepts do not directly incriminate Mr. Abdilleh

b) The intercepts are not wholly inadmissible against Mr. Abdilleh

c) Some or all of the intercepts may not be admitted as evidence in the joint trial

2. Factors supporting a joint trial

3. Neutral factors

C. Balancing the relevant factors

IV. Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 1