COURT FILE NO.: CR-20-40000382-0000

DATE: 20210414

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ROBEL BERHANU ZAZA and ANDREW TESFATSION

Imram Shaikh, for the Crown

Melanie Webb, for the Applicant, Robel Zaza

Feven Glaizghi, for Andrew Tesfatsion

HEARD: March 12, 2021

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT on Severance Application

[1] Mr. Zaza and Mr. Tesfatsion are charged with a series of robberies. There are six counts on the indictment. Mr. Zaza applied for severance on the grounds that his right to a trial within a reasonable time would be infringed if he continued to face trial on the same indictment as Mr. Tesfatsion.

[2] On March 12, 2021 I granted the severance application, with reasons to follow. The following are my reasons.

THE ALLEGATIONS:

[3] The indictment alleges that:

• Count 1: On October 25, 2018 Zaza robbed Jonathan Purves;
• Count 2: On October 29, 2018 Zaza and Tesfatsion robbed Andy Hsiao;
• Count 3: On October 30, 2018 Zaza and Tesfatsion robbed Suresh Behara. The indictment originally alleged that Franklin Ita-Effiong was one of the perpetrators. This count was subsequently withdrawn as against Mr. Ita-Effiong.
• Count 4: On October 30, 2018 Tesfatsion possessed property obtained crime of under $5000;
• Count 5: On October 30, 2018 Zaza possessed property obtained crime of under $5000; and,
• Count 6: On October 30, 2018 Zaza and Tesfatsion used an imitation firearm while committing the indictable offence of robbery. The indictment originally alleged that Franklin Ita-Effiong was one of the perpetrators. This count was subsequently withdrawn as against Mr. Ita-Effiong.

[4] In other words, Zaza faces 3 counts of robbery, one count of possession of property obtained by crime, and one count of use of an imitation firearm while committing a robbery. Tesfatsion faces 2 counts of robbery, one count of possession of property obtained by crime, and one count of use of an imitation firearm while committing a robbery.

[5] Briefly, these are the allegations:

• On October 25, 2018 three men robbed Mr. Purves as he walked home. The robbers demanded his phone, jacket, watch, and money along with the PIN numbers for his credit and debit cards. (Count 1).
• On October 29, 2018 three men robbed Mr. Hsiao as he walked home. The robbers took his laptop, phone, and wallet. They demanded the PIN numbers for his for his credit and debit cards. Mr. Tesfatsion allegedly used Mr. Hsiao’s debit or credit cards to make purchases, including Hennessey cognac at an LCBO. Mr. Tesfatsion was seen on the LCBO video. Mr. Hsiao said that the robbers used a dark sedan. (Count 2).
• On October 30, 2018 three men robbed attacked and robbed Mr. Behara as he walked along the street. They demanded his valuables. Mr. Tesfatsion put what appeared to be a handgun to his head (Counts 3 and 6).
• A police officer stopped Mr. Zaza’s car later in the evening of October 30, after the robbery of Mr. Behara. Mr. Zaza was driving and Mr. Tesfasion was in the passenger seat. The police arrested both men. The police found Mr. Hsiao’s wallet in the passenger side door pocket, beside Mr. Tesfasio. The police also found Mr. Purves’s cell phone in the car. Mr. Zaza had Mr. Hsiao’s phone in his rear pocket. The police found a BB gun under the front passenger seat and a pellet gun under the front driver’s seat. They also found a bottle of Hennessy cognac (Counts 4 and 5).

PROCEDURAL HISTORY:

[6] The police arrested Mr. Zaza, Mr. Tesfatsion, and Mr. Ita-Effiong, on October 30, 2018. The three men were originally charged in relation to seven alleged robberies. The charges included robbery, robbery with a firearm, and possession of property obtained by crime. On September 17, 2019 the three men were put to their election. Mr. Zaza elected trial in the Superior Court by judge alone; the other two elected trial by judge and jury.

[7] Prior to the preliminary inquiry, the Crown withdrew several counts. The preliminary inquiry proceeded in January 2020. The three men were ordered to stand trial in September 2020.

[8] After much back-and-forth between counsel a trial date of January 4, 2022 was agreed on. The “Jordan” date for this matter is April 29, 2021. The January 4, 2022 date would have been well after the Jordan date.

[9] Mr. Zaza and Mr. Ita-Effiong then brought severance applications. Those applications were to be heard on November 23, 2020. Shortly before the severance applications were to be heard, the Crown withdrew all charges against Mr. Ita-Effiong. The trial was then re-scheduled for April 12, 2021.

[10] As is well-known, jury trials in the Superior Court have been suspended due to the Covid-19 pandemic. The suspension has been extended from time to time. On January 13, 2021 the Superior Court extended the suspension. The suspension remains in effect as of the time of writing of this judgment. Mr. Zaza was willing to re-elect. Mr. Tesfatsion was not. The Crown was prepared to consent to severance so that the trial could go ahead against at least one of the co-accused.

[11] On March 5, 2021, however, I heard an application for an adjournment of the April 12, 2021 date. The adjournment was brought by Ms. Webb, counsel for Mr. Zaza. The basis for Ms. Webb’s request was that the Crown had failed to disclose several items that were requested and remained outstanding. Briefly, I agreed that the Crown had failed to make certain disclosure. I found that that disclosure – which related to the legality of the search of Mr. Zaza’s car – was disclosure that was necessary for Ms. Webb to make full answer and defence on behalf of her client (Mr. Shaikh, Crown Counsel, had only recently been assigned to the case and was not responsible for the failure). I granted the adjournment.

[12] Ultimately a new trial date in February 2022 was obtained. This will be some 9 months after the “Jordan” date.

ANALYSIS:

[13] Where two or more persons are charged with a criminal offence, the general rule is that they ought to be tried together. Separate trials are the exception: R. v. Chow, 2005 SCC 24 at paras. 47-48.

Section 591(3) of the Criminal Code states:

(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] Joint trials prevent inconsistent verdicts, use court resources more efficiently, and prevent inconvenience to witnesses. Severance should not be ordered unless it will work an injustice to an accused person: R. v. Crawford, 1995 CanLII 138 (SCC), [1995] 1 S.C.R. 858 at paras. 35-36 as quoted in Chow at para. 48. Where a party wishes to sever counts or other parties, the onus is on that party to show that the interests of justice require severance: R. v. McNamara (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 at para. 118.

[15] The interests of justice that a trial judge must consider were described by Doherty J.A. in R. v. Savoury, 2005 CanLII 25884 (ON CA), 2005 CarswellOnt 3191, [2005] O.J. No. 3112, 200 C.C.C. (3d) 94 (C.A.) at para. 22:

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 competing interests and will direct severance only if the accused seeking severance satisfied the trial judge that severance is required. To satisfy that burden, the accused must overcome the presumption that co-accused who are jointly charged and are said to have acted in concert, should be tried together. The policy behind this presumption was described by D.W. Elliot in his article “Cut Throat Tactics: The Freedom of an Accused to Prejudice a Co-Accused, [1991] Crim.L.Rev. 5 at 17 and cited with approval by Sopinka J. in R. v. Crawford at 397:

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. ....

[16] In R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146 at para. 18 the Supreme Court of Canada identified a non-exhaustive list of factors that courts routinely take into account when they determine whether to grant severance:

• 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.

[17] When I examine these factors, virtually all of them favour a joint trial or are neutral, as the Crown correctly points out. There is an obvious legal and factual nexus between the counts; there is clearly a desire to avoid a multiplicity of proceedings, as many of the witnesses will be the same (although not the victims); and the issue is the same in each: identity. The defences are not antagonistic.

[18] One factor, however, militates against a joint trial. That factor is the right to be tried within a reasonable time. There is no doubt that when a case is in trouble, it is incumbent on everyone to take steps to deal with the problem: R. v. M.(R.), 2003 CanLII 50092 (ON CA), 2003 CarswellOnt 4427, [2003] O.J. No. 4240, 180 C.C.C. (3d) 49 (C.A.) at paras. 4, 9.

[19] If these were ordinary times, it would be very unlikely that this severance application could succeed. This is no ordinary time, however. The covid-19 pandemic has dramatically affected the administration of justice. Jury trials in the Superior Court have been suspended for over a year at the time of writing of this judgment. It is not clear when the suspension will be lifted. Many jury trials await the lifting of the suspension. The current trial date is well after the Jordan date. That is partially due to the pandemic; partially due to the adjournment that was granted due to late disclosure issues; and partly due to the fact that Mr. Tesfatsion wishes to have a jury trial and Mr. Zaza is prepared to re-elect and have a judge-alone trial. Indeed, Mr. Zaza has been willing to elect trial by jury right from the beginning. I note that the Crown was prepared to consent to the original severance application.

[20] In my view, it would alleviate a potential injustice to Mr. Zaza if it becomes possible for him to have an earlier trial date but he is able to take it up because of mutually inconsistent elections. This case is clearly in Jordan trouble, at least as far as Mr. Zaza is concerned. In my view it behooves the court to take action to try and deal with the problem. At this point the only realistic way of dealing with it is to sever the two accused.

DISPOSITION

[21] The application is granted.

Released: April 14, 2021

COURT FILE NO.: CR-20-40000382-0000

DATE: 20210414

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ROBEL BERHANU ZAZA and ANDREW TESFATSION

REASONS FOR JUDGMENT ON SEVERANCE APPLICATION

R.F. Goldstein J.