COURT FILE NO.: CR-18-1236
DATE: 2021 03 26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Robert Tremblay, for the Crown
– and –
CHANTHOL HANG and GREGORY ROUSE
Brian Crothers, Counsel for Mr. Hang Androu Gerges, Counsel for Mr. Rouse
HEARD: March 16-17, 2021
REASONS FOR DECISION ON CROSS-EXAMINATION OF MR. HANG AND MR. ROUSE’S SEVERANCE APPLICATION
J.M. Woollcombe J.
Introduction
[1] The co-accused are jointly charged with possession of cocaine for the purpose of trafficking, possession of cocaine and possession of property obtained by crime. Prior to their arrest, they were together in a car in which there had been about a kilogram of cocaine and $44,500 cash in a bag, and an additional $1,980 cash in the footwell of the front passenger seat. Who had possession and control of the cocaine and cash is the main issue on the trial.
[2] After the Crown closed its case, Mr. Hang testified in chief. In his evidence, he denied having had possession or control of the cocaine or cash and implicated Mr. Rouse. At the outset of cross-examination by counsel for Mr. Rouse, Mr. Hang was asked if he had previously pled guilty to the offences he faces. Mr. Hang’s counsel immediately objected.
[3] It is agreed that Mr. Hang has previously entered a guilty plea to counts on this indictment. That plea was later set aside by Durno J. and this trial scheduled.
[4] The issue that arose, and upon which I heard submissions from counsel, is whether it is permissible for counsel for one accused, Mr. Rouse, to cross-examine his co-accused, Mr. Hang, about anything related to his prior struck guilty plea. Counsel seeks to cross-examine on the agreed facts to which Mr. Hang admitted and on an affidavit sworn by him in support of his application to strike the plea.
[5] At the conclusion of the argument, I ruled that counsel for Mr. Rouse would not be allowed to ask Mr Hang anything about the guilty plea that had been set aside. I advised counsel that my reasons for this decision would follow.
[6] Counsel for Mr. Rouse then applied to have his charges severed from Mr. Hang’s so that he would have a separate trial. After submissions on the issue of severance, I dismissed that application and indicated that my reasons would follow.
[7] These are my reasons for both rulings.
Cross-examination on a guilty plea that has been set aside
[8] It is well established that the Crown is precluded from adducing or relying on any evidence that arises from, or is related to a guilty plea that is subsequently set aside: Thibodeau v. The Queen, [1955] S.C.R. 646; R. v. B.(D.M.), [2005] O.J. No. 227 (C.A.). This rule has been applied to cross-examination on: statements made by an accused in the course of a guilty plea that was later struck: R. v. Tayongtong, 2017 ONSC 6027; agreed facts filed in support of a guilty plea that was later struck: R. v. Branco, 2018 ONSC 7789; and statements made by an accused to a probation officer who prepared a pre-sentence report following a guilty plea that was later struck: R. v. B.(M.B.).
[9] The issue in this case is whether the same rule applies when it is an accused who seeks to cross-examine a co-accused on matters related to the guilty plea, rather than the prosecutor.
[10] Mr. Rouse’s position was that he was entitled to use the fact of the struck guilty plea, and the circumstances surrounding it, including an affidavit filed by Mr. Hang in support of his application to strike the guilty plea, to make full answer and defence. Counsel submitted that a co-accused’s cross-examination is not constrained by the rules that apply to the Crown and that the prior plea should be analysed and understood as akin to a prior inconsistent statement made by Mr. Hang. Counsel initially submitted that he wished to rely on this cross-examination both to impeach Mr. Hang’s credibility and in support of his position that Mr. Hang had lied in his evidence-in-chief and that he had pled guilty because he is guilty. Effectively, this was an argument that the prior plea was admissible for its truth. Counsel subsequently clarified that he wanted to rely on the circumstances surrounding the guilty plea for the sole purpose of impeaching Mr. Hang’s credibility.
[11] Both the Crown and counsel for Mr. Hang took the position that any cross-examination on matters related to Mr. Hang’s struck guilty plea was impermissible. They submitted that one accused’s right to cross-examine a co-accused is not completely unfettered. They say that once a guilty plea has been set aside, it is as though it had never happened. Thus, it would be unfair to Mr. Hang for his credibility to be assessed on the basis of inconsistencies between what he said at trial and anything he said before in respect of the struck guilty plea.
[12] There do not appear to be any cases in which this issue has been squarely raised or addressed by any other court.
[13] In order to make full answer and defence, as protected under s. 7 of the Charter, there is no doubt that co-accused may cross-examine each other. To ensure that the competing rights of co-accused in joint trials are balanced, “restrictions that apply to the Crown may not apply to restrict this right of the co-accused”: R. v. Crawford, [1995] 1 S.C.R. 858. So, without doubt, when one accused enters the witness box voluntarily, and implicates a co-accused, as Mr. Hang did in this case, the co-accused must be permitted to mount a challenge to his credibility.
[14] The jurisprudence reveals a number of examples of one accused having wider latitude to cross-examine a co-accused than the Crown has when cross-examining that same accused. For instance, when one accused incriminates a co-accused in his testimony, the co-accused is permitted to attack that other accused’s credibility by reference to his pre-trial silence: R. v. Crawford, at para. 36. Similarly, one accused is permitted to cross-examine a co-accused on that co-accused’s disposition or propensity towards violence, even if the co-accused has not put his character in issue: R. v. Akins, [2002] O.J. No. 1885 (C.A.) at para. 12; R. v. Valentini (1999), 43 O.R. (3d) 178 (C.A.); R. v. Kendal, (1987), 35 C.C.C. (3d) 105 (Ont.C.A.). Finally, one accused may cross-examine a co-accused on a statement made by the co-accused, even if that statement is ruled inadmissible for the Crown on the basis of it not having been proven voluntary: R. v. Crawford, at paras. 27-28; R. v. Logan, [1988] O.J. No. 2107 (C.A.) at paras. 112-115; aff’d [1990] 2 S.C.R. 731; R. v. Pelletier (1986), 29 C.C.C. (3d) 533 (B.C.C.A.).
[15] Despite this, the law is clear that the right to make full answer and defence is not absolute. As the Court of Appeal recently explained in R. v. Abdulle, 2020 ONCA 106 at paras. 56-58:
56 In R. v. Creighton, [1995] 1 S.C.R. 858 (S.C.C.) [hereinafter Crawford], the Supreme Court confirmed that this right applies in the case of joint trials of co-accused, and "extends to prevent incursions on its exercise not only by the Crown but by the co-accused": at para. 28. However, the "right to full answer and defence, as is the case with other Charter rights, is not absolute", and it must be applied in accordance with the rules of evidence and other rules that govern the conduct of criminal trials:
The right to full answer and defence does not imply that an accused can have, under the rubric of the Charter, an overhaul of the whole law of evidence such that a statement inadmissible under, for instance, the hearsay exclusion, would be admissible if it tended to prove his or her innocence: at para. 28, quoting Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505, at p. 1515.
57 Where the rights of co-accused are in conflict, the strong policy reasons for conducting joint trials (e.g., consistent verdicts, emergence of the full truth) mandate that the trial judge engage in an attempt to balance and reconcile the competing rights: Crawford, at paras. 30-32.
58 In undertaking this balancing, the trial judge has the right to exclude defence evidence. However, as the Supreme Court observed in Seaboyer, "the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law": at p. 611. See also R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475 (S.C.C.), at para. 19. The trial judge may also sever the trials, but this extreme remedy is only justified where any attempt to reconcile the rights will result in an injustice to an accused: Crawford, at para. 32.
[16] In my view, as broad as the right of one co-accused to cross-examine and impeach a co-accused who has implicated him is, it does not extend to authorizing cross-examination of a co-accused on a guilty plea that has been set aside.
[17] The analysis has to begin by considering the legal effect of striking a guilty plea. This issue was decided by the Supreme Court of Canada in Thibodeau v. The Queen. The question before the court was whether the trial judge had erred in accepting, as legal corroboration of an alleged accomplice, a previous guilty plea of the accused that had been struck. In reaching the conclusion that the trial judge had erred, Cartwright J., writing for the majority, said the following about the effect of a guilty plea being set aside:
23 It is, I think, an inference that may fairly be drawn from the dearth of authority that whenever it has been tendered the Courts have refused to admit evidence that an accused had entered a plea of guilty to the charge upon which he was on trial which had later been withdrawn by leave of the Court. It is highly improbable that such evidence should have been admitted and no redress sought in an appellate tribunal. Be this as it may, I am of opinion that, where a plea of guilty has been withdrawn and a plea of not guilty substituted by leave of the Court, the judge before whom the case comes for trial following the plea of not guilty should assume that the judge who granted leave to change the plea did so on sufficient grounds and should treat the original plea, for all purposes, as if it had never been made.
24 In Wigmore on Evidence, 3rd ed., vol. IV, p. 66, s. 1067, the learned author says:
For criminal cases (where a withdrawn plea of guilty is later offered) the few authorities are divided.
25 I have examined the authorities referred to and prefer the reasoning of those judges who have held the evidence in question inadmissible. In my opinion the dissenting judgment of Wheeler J. in State v. Carta (1916), 96 Atl. 411 deals satisfactorily with the question and reaches the right conclusion. I refer particularly to the following passage at p. 415:
Considerations of fairness would seem to forbid a court permitting for cause a plea to be withdrawn, and at the next moment allowing the fact of the plea having ben made, with all its injurious consequences, to be admitted in evidence as an admission or confession of guilt by the accused. The withdrawal is permitted because the plea was originally improperly entered. No untoward judicial effect should result from the judicial rectification of a judicial wrong.
The majority hold that the fact that the former plea may be explained will be a sufficient protection to the accused. Such a ruling places upon him a burden of disproving a fact which does not exist; for the withdrawal eradicated it. It brings him before the jury under the heavy cloud of suspicion created by his plea of guilty when he is entitled to come before the jury with the presumption of innocence shielding him. It makes him prove again that his plea was wrongly entered when that fact has already been judicially ascertained and settled by a court of competent jurisdiction and cannot be opened unless a higher court finds an abuse of that court's discretion.
26 For the above reasons I have reached the conclusion that on the trial of an accused who has pleaded not guilty evidence that he had previously pleaded guilty to the charge but had been allowed to withdraw such plea is legally inadmissible; from which it, of course, follows that evidence of the former plea can neither be given for the prosecution nor elicited from the accused in cross-examination. [emphasis added]
[18] This is strong language. A struck guilty plea is to be treated “for all purposes, as if it had never been made”. Evidence of a struck plea is “legally inadmissible” and “can neither be given for the prosecution nor elicited from the accused in cross-examination”. While the context of the decision was not one in which there needed to be any balancing of rights between co-accused, on its face, in my view, the unequivocal language used by the court supports a conclusion that Mr. Rouse is precluded from eliciting anything respecting the struck plea in cross-examination.
[19] Similarly emphatic language was used by the Court of Appeal in R. v. B.(D.M.). Again, while not decided in the context of balancing co-accused’s rights, the court held that a struck guilty plea “was inadmissible” and that “[o]nce the plea was struck out, it was as if it had never happened”: paras. 4 and 8. Again, in my view, this unambiguous language supports a conclusion that cross-examination by Mr. Rouse on the struck plea is prohibited because the trial is to be conducted as though the guilty plea had never happened.
[20] In addition to the clear language used by the appeal courts prohibiting use of a struck guilty plea, there are sound policy reasons for concluding that one accused should not be permitted to seek to impeach a co-accused’s credibility through reference to a struck guilty plea. A court may accept a guilty plea only if satisfied that the conditions set out in s. 606(1.1) of the Criminal Code are met. In setting aside a guilty plea, the court acknowledges that one or more of those conditions was not met and, as a result, that the guilty plea was improperly accepted by the court. I see something fundamentally unfair to an accused about permitting his improperly accepted guilty plea to be withdrawn, and then allowing a co-accused to use what the court has concluded never should have happened, to impeach his credibility. Doing so fails give effect to the striking of the plea in that it does not put the accused into a situation in which “it is as if it never happened”. Rather, permitting cross-examination on the struck plea effectively puts an onus on the accused to justify to the trier of fact that the plea was properly struck, despite a court having already made that determination: Thibodeau v. The Queen; R.. v. Tayongtong at paras. 27-36.
[21] Finally, my conclusion that Mr. Rouse is not permitted to cross-examine Mr. Hang on anything related to the struck guilty plea is supported by the analysis of the Court of Appeal decision in R. v. Akins. I see the circumstances in that case as analogous to those here. In R. v. Atkins, the trial judge permitted the appellant to be cross-examined by a co-accused on the facts underlying past charges that had been disposed of by way of withdrawals or acquittals. Counsel for the co-accused had submitted that this cross-examination was permissible to attack the credibility of the appellant and to show disreputable conduct and a propensity to commit acts of bad character. The Court of Appeal held that the trial judge had erred in allowing this cross-examination by the co-accused.
[22] Writing for the court, Cronk J.A. emphasized that because an acquittal is equivalent to a finding of innocence, the facts underlying the charges for which the appellant had been acquitted could not be relevant to either his propensity or credibility (unless admitted as similar fact evidence). Cronk J.A. expressly rejected the argument that such cross-examination assumed a different character in a joint trial where it was permissible by a co-accused, who had the right to make full answer and defence. Instead, the court adopted its analysis in R. v. Verney, (1993), 87 C.C.C. (3d) 363 (Ont.C.A.) that an acquittal is a “declaration of innocence for all purposes” and concluded that there had been a significant risk of the jury mis-using the propensity evidence elicited on cross-examination respecting the underlying charges for which the appellant had been acquitted.
[23] The situation in R. v. Akins is very similar to the situation for Mr. Hang. Acquitted of some of his charges, Mr. Akins was presumed innocent of them. As a result, it was legally impermissible for his credibility to be assessed on the basis of the underlying facts that had supported those charges. Accordingly, neither the Crown nor the co-accused were entitled to cross-examine him on those underlying facts. Similarly, once Mr. Hang’s guilty plea and admissions were set aside by the court, he re-gained the presumption of innocence in relation to them. It is, therefore, impermissible for his credibility to be assessed by reference to anything underlying, or inextricably related to, that guilty plea. Doing so would violate his presumption of innocence. It follows that neither the Crown, nor Mr. Rouse, is permitted to cross-examine on the struck plea for the purpose of assessing Mr. Hang’s credibility.
[24] On the basis of this analysis, I ruled that Mr. Rouse would not be permitted to ask any questions about anything related to the struck guilty plea.
The Severance Application
[25] As I have indicated, immediately following my ruling respecting Mr. Rouse’s cross-examination, he moved for severance. Mr. Rouse’s position is that as an accused, Mr. Hang cannot be cross-examined on a struck guilty plea so as to protect his presumption of innocence. By contrast, counsel says that at a severed trial, either Mr. Hang would not be called as a Crown witness, leading to his evidence not being called against Mr. Rouse, or, if he were called, counsel says that he would likely be permitted to cross-examine Mr. Hang, as a witness, on his struck guilty plea. As I understand Mr. Rouse’s position, it is that because there is evidence that he might be able to elicit against Mr. Hang at a severed trial, which I ruled was inadmissible at a joint trial, severance was required for him to make full answer and defence.
[26] Mr. Hang took no position on the application. The Crown opposed severance. The Crown’s position is that there is no injustice caused by a joint trial. Further, the Crown submits that even were it to call Mr. Hang as a witness at a severed trial of Mr. Rouse, its position would be that cross-examination on the struck guilty plea would be impermissible.
[27] Pursuant to s. 591(3)(b) of the Criminal Code the court may, where it is in the interests of justice to do so, order that where there is one or more accused, they be tried separately. In accordance with s. 591(4), an order for severance may be made before or during a trial.
[28] 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] 3 S.C.R. 339 at para. 52; R. v. Last, 2009 SCC 45 at para. 24. The interests of justice encompasses both the accused right to a fair trial and society’s interest in seeing justice done in a reasonable efficient and cost-effective manner: R. v. Last at para. 16: R. v. Durant, 2019 ONCA at paras. 72-73.
[29] Those charged jointly with the same offences arising out of the same events are, presumptively, tried together: R. v. Zvolensky, 2017 ONSC 273 at paras. 24-33; application for leave dismissed [2017] S.C.C.A. No. 403. Some of the policy reasons for this were explained by Sopinka J. in R. v. Crawford:
33 There exist, however, strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly. The policy reasons apply with equal or greater force when each accused blames the other or others, a situation which is graphically labelled a "cut-throat defence". Separate trials in these situations create a risk of inconsistent verdicts. The policy against separate trials is summarized by Elliott, supra, at p. 17, as follows:
There is a dilemma here which could only be avoided by separate trials. But separate trials will not be countenanced because, quite apart from the extra cost and delay involved, it is undeniable that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion. If each alleged participant is tried separately, there are obvious and severe difficulties in arranging for this to happen without granting one of them immunity. In view of this, in all but exceptional cases, joint trial will be resorted to, despite the double bind inevitably involved.
34 Although the trial judge has a discretion to order separate trials, that discretion must be exercised on the basis of principles of law which include the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused. The mere fact that a co-accused is waging a "cut-throat" defence is not in itself sufficient. In Pelletier, supra, a co-accused was permitted to cross-examine another accused on a statement to the police that had not been proved to be voluntary. On appeal of his conviction he contended if he had been tried separately the cross-examination would not have been permitted. On this basis he claimed that the trials should have been severed. In dismissing this ground, Hinkson J.A., on behalf of the court, stated, at p. 539:
On this point it is necessary to keep in mind that the trial judge has a discretion as to whether or not he will grant a severance. The general rule of severance is that persons engaged in a common enterprise should be jointly tried unless it can be demonstrated that a joint trial would work an injustice to a particular accused: R. v. Black and six others, [1970] 4 C.C.C. 251 at pp. 267-8, 10 C.R.N.S. 17 at pp. 35-6, 72 W.W.R. 407. In this case, the trial judge was not persuaded that it was appropriate to grant a severance. I do not conclude that he erred in the exercise of his discretion.
[30] Mr. Rouse did not persuade me that the interests of justice required him to have a separate trial. The question at this stage is not what a severed trial for Mr. Rouse would look like in terms of whether the Crown would or would not call Mr. Hang and, if Mr. Hang was called, what cross-examination of him would be permitted. Rather, I have based this ruling on whether there would be an injustice to Mr. Rouse in having a joint trial with Mr. Hang, as this is presumptively what is to happen. The facts that Mr. Hang has implicated Mr. Rouse, and that I ruled that cross-examination of Mr. Hang could not include seeking to impeach his credibility on his struck guilty plea are not, in my view, proper reasons to grant severance.
[31] I understand Mr. Rouse’s position that a separate trial would not likely result in the use of significantly more court time, given that the Crown’s case consisted of only three witnesses. I also understand that Mr. Rouse would be prepared to waive any s. 11(b) of the Charter delay concerns. These factors can weigh in favour of severance.
[32] Weighing against this, of course, are the facts that severance means the court time and expense of mounting a second trial, even if it is a short one. There would be needless duplication of evidence. In the midst of a global pandemic, which has resulted in the loss of a huge amount of court time, I consider it of some importance to avoid conducting separate trials of the two co-accused in this matter, assuming that a joint trial can be conducted fairly.
[33] This leads me to the most important factor in dismissing Mr. Rouse’s severance application. I find that Mr. Rouse will be able to have a fair trial if he remains jointly tried with Mr. Hang. The issue to be decided is not complicated. The main question is whether the Crown has proven that each of the co-accused had possession and control of the cocaine and cash. Mr. Hang has testified that he did not have possession of either, effectively suggesting that they must have been Mr. Rouse’s. Mr. Rouse will be able to challenge Mr. Hang’s evidence and credibility under cross-examination. He will be able, should he choose to, to suggest that the cocaine and cash were Mr. Hang’s and were not his. He will be able to testify, should he choose to. I do not see how the ruling prohibiting Mr. Rouse from cross-examining on Mr. Hang’s struck guilty plea creates an unfair joint trial for Mr. Rouse. As is the case in many cut-throat defence scenarios, there is no unfairness to either accused flowing from a joint trial.
[34] Furthermore, this is a case in which the allegations and evidence against the two co-accused is virtually identical. Not only should they presumptively be tried together, but there is a much stronger likelihood of the truth being discovered in a joint trial where the accused are able to confront each other, than in separate trials where each accused could blame the other: R. v. Suzack, [2000] O.J. No. 100 at para. 88. It is in the interests of justice for the account of each accused to be given in one trial and for one decision to be rendered, without the risk of inconsistent verdicts in separate trials.
[35] For these reasons, I dismissed the severance application.
J.W. Woollcombe J.
Released: March 26, 2021
COURT FILE NO.: CR-18-1236
DATE: 2021 03 26
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHANTHOL HANG and GREGORY ROUSE
REASONS FOR JUDGMENT
Woollcombe J.
Released: March 26, 2021