COURT FILE NO.: CR-20-70000179-0000 DATE: 20210210 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – STEFAN RYAN

Counsel: C. Glaister, for the Crown Stefan Ryan, self-represented E. Starer, amicus curiae

Heard: 13 January 2021

S.A.Q. Akhtar J.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] Stefan Ryan is indicted with assaults on four different victims on a multi-count indictment containing 22 separate counts. These include two counts of attempted murder in relation to named victims in addition to two counts of assault with a weapon of unknown persons. In addition, Mr. Ryan faces four counts of failing to comply with a recognizance (linked to the assault with a weapon counts) and 12 counts of failing to comply with probation.

[2] The assaults are alleged to have been committed on 30 July 2018 during a 2-hour time span from 1:50 a.m. to 3:30 a.m. Mr. Ryan is self-represented although amicus curiae, appointed at the preliminary inquiry, will also assist the court at trial.

[3] Mr. Ryan brought an application to sever the counts concerning the two unidentified victims from counts which contained named victims. At the end of submissions, I dismissed the severance application with reasons to follow.

The Allegations

[4] The indictment, in its current form, contains counts covering four separate incidents.

Events Prior to the Allegations

[5] The accused had been arrested in the late hours of 29 July 2018, for committing food fraud. He was released without charge and driven, by police, to the area of the Esplanade and Lower Jarvis Street where he was dropped off at approximately 10:39 p.m.

[6] In-car camera footage, taken during the police drive, showed the accused to be wearing a light-coloured jacket, no shirt, shorts with a dark belt, and no socks or shoes prior to alighting the police vehicle.

The 1:50 a.m. Assault (“Jane Doe”)

[7] Around 1:50 a.m., video surveillance captured a woman sitting at a table outside a Metro store at the intersection of Front and Church Street. She was approached, from behind, by a man who placed a belt around her neck. The woman, referred to hereafter as “Jane Doe” has not been identified. The assailant was wearing yellow shoes with white spots, long trousers with horizontal cuts across the front, no shirt, a hoodless black jacket with a white logo on the back and the sleeves pushed up, as well as sunglasses and a hat. The assailant was carrying a black backpack and had a white towel in his back pocket.

The 3:00 a.m. Assault (“John Doe”)

[8] At 3:00 a.m., video surveillance captured a male, wearing very similar clothing to Jane Doe’s assailant, approach an unidentified man (“John Doe”) standing on the sidewalk outside a closed restaurant. Once again, the assailant approached John Doe from behind, placed a belt around his neck and assaulted him.

The 3:35 a.m. Assaults (Shay-Lynn White and Thomas Laforme)

[9] At 3:35 a.m., emergency services received a call informing them that two people requiring medical assistance been found at the entrance of St. James’ Cathedral: Shay-Lynn White and Thomas Laforme. Both had sustained serious head injuries, with Mr. Laforme suffering multiple skull fractures, and Ms. White found to have subarachnoid bleeding. Neither victim had any memory of being attacked and there are no video recordings of the incidents.

The Shuter Street Recordings

[10] There is video evidence capturing the accused, at 5:05 a.m., at a rooming house at 81 Shuter Street. He was later arrested at that location, at 7:00 a.m., on unrelated offences. On video, the accused is wearing yellow shoes with white spots on the top and no socks. His trousers have horizontal cuts across the front and a dark belt around the waist. The accused is also wearing a black jacket with no hood, although there is no logo on the back, and has a white towel.

The Accused’s Utterances

[11] The Crown seeks to rely on three sets of utterances made by the accused.

[12] First, after his arrest, the accused was transported to the police station in a police car. During the course of the drive, he referred to “those two kids I crushed last night”. Secondly, at the preliminary inquiry, whilst a police witness testified, the accused interrupted proceedings by saying: “They’re not fuckin’ still alive, come on, they can't be still alive. I fuckin' crushed their fuckin', I fuckin' crushed their fuckin' skulls.” Finally, when questioned by a probation officer during the preparation of a pre-sentence report, the accused revealed that he was using drugs regularly prior to being incarcerated.

LEGAL PRINCIPLES

[13] Section 591(3) of the Criminal Code, R.S.C. 1985, c. C-46 provides that:

(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.

[14] In R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 16, the Supreme Court of Canada described the balancing exercise to be conducted by the court when determining whether severance is justified:

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.

[15] The analysis of “interests of justice” does not equate with “the interests of the accused” but balances the accused’s fair trial rights against society’s interests that justice be done in a reasonably cost-effective manner: R. v. Moore, 2020 ONCA 827, at para. 11; R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 28.

[16] In Last, the Court, at para. 18, identified the following list of factors that govern the analysis on a severance application:

• General prejudice
• Legal and factual nexus between the counts sought to be severed
• Complexity of the evidence
• Whether the accused intends to testify on one count but not another
• The possibility of inconsistent verdicts
• Desire to avoid a multiplicity of proceedings
• Use of similar fact evidence at trial
• Length of trial having regard to the evidence to be called
• The potential prejudice regarding the right to be tried within a reasonable time
• The existence of antagonistic defence between co-accused

[17] See also: Jeanvenne, at para. 29; R. v. E.(L.) (1994), 94 C.C.C. (3d) 228 (Ont. C.A.), at p. 238; R. v. Cross (1996), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419.

[18] None of these factors, on its own, is dispositive of the application nor is the list exhaustive.

ANALYSIS

[19] In this case, there is no doubt, as conceded by amicus, that there is a significant overlap of evidence between the counts the accused sought to have severed. That overlap reflects the close factual nexus between the counts with the incidents all occurring within two hours and in close proximity to each other.

[20] Should the counts be severed the bulk of evidence would necessarily be tendered in both trials due to the Crown’s reliance on evidence both preceding and post-dating the offences when proving the allegations.

[21] For example, the evidence demonstrating the accused’s presence in the area arises from his earlier detention by police and their leaving him in the area. Similarly, the clothing worn by the accused derives from the recordings made at the rooming house.

[22] Separating the counts into two trials would result in almost identical trials each of which would, according to counsel, take a number of weeks.

[23] As has been pointed out in a long line of cases, the interests of justice often require a joint trial “as severance has the potential to impair both trial efficiency and the truth-seeking function of the trial”: R. v. A.C., 2018 ONCA 333, 360 C.C.C. (3d) 540, at para. 24. See also: R. v. Anderson, 2018 ONCA 1002, at para. 10; Last, at para. 17; R. v. Sciascia, 2017 SCC 57, [2017] 2 S.C.R. 539, at para. 33.

[24] On the other hand, the risk of prejudice is eliminated by the fact that Mr. Ryan is to be tried by judge alone. Accordingly, there is no risk of the misuse of propensity evidence or reliance on evidence irrelevant to the charges to be tried.

[25] Balancing these factors, I find that the interests of justice require that the counts relating to all the victims be tried together.

[26] For the foregoing reasons, the application is dismissed.

S.A.Q. Akhtar J.

Released: 10 February 2021