ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
O.W. & T.A.
COUNSEL:
Rob Fried, for the Crown
Chris Sewrattan, for O.W.
Mayleah Quenneville, for T.A.
HEARD: May 27, 2021
RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this application directing that the identity of the accused and any information that could disclose such identity shall not be published in any document or broadcast in any way. The ban expires at the commencement of trial. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.
R.F. GOLDSTEIN J.
REASONS FOR JUDGMENT ON SEVERANCE APPLICATION
1On March 28, 2020 at approximately 8:00 pm three masked men broke into a house at 43 Tordale Crescent in Toronto. They identified themselves as police. Two of the intruders had firearms. One of the three intruders pistol-whipped the first victim, ransacked his room, and demanded money. They then went to the second victim (who was the first victim’s mother) and took $300 from her purse. The three intruders then fled.
2Another victim managed to call 911 while the three intruders were in the house. Police officers arrived in the area shortly after that.
3Police officers arrested T.A. a short distance from the scene of the home invasion. Just prior to arrest he tossed away a loaded .40 Taurus handgun. The police seized the handgun. There was one round in the chamber and ten rounds in the magazine. T.A. possessed a second magazine holding 10 rounds of ammunition. He also possessed two balaclavas and a pair of gloves. The police swabbed the gloves. They found DNA from one of the victims on the gloves.
4The police used a tracking dog to try to find the other suspects. They located O.W. He was hiding in a backyard shed. The police also found clothing in the shed. The clothing matched the description of clothing worn by the intruders. The police also located a loaded 9m H.K. handgun in a toolbox in the shed. The Crown theory is that O.W. hid the handgun in the toolbox. The homeowner told the police that he did not leave a gun in the toolbox in his backyard shed.
5The Crown alleges that two of the intruders were T.A. and O.W. The police have not been able to identify or arrest the third intruder.
6At the time of the arrest O.W. was subject to two orders prohibiting him from possessing firearms or ammunition for life. T.A. was on one such order.
7As a result, O.W. and T.A. are indicted on the following charges:
Robbery (jointly);
Break, enter, and robbery in relation to a dwelling house (jointly):
Wearing a disguise with intent to commit an indictable offence (jointly);
Possession of a prohibited or restricted firearm (the H&K handgun) without a licence (O.W.);
Possession of a prohibited or restricted firearm (the H&K handgun) while knowingly not being the holder of a licence and registration certificate (O.W.);
Possession of a loaded prohibited firearm (the H&K handgun) without a licence and registration certificate (O.W.);
Possession of a firearm while prohibited from doing so (O.W.);
Possession of a firearm while prohibited from doing so (O.W.)
Possession of a prohibited or restricted firearm (the Taurus handgun) while knowingly not being the holder of a licence and registration certificate (T.A.);
Possession of a prohibited or restricted firearm (the Taurus handgun) while knowingly not being the holder of a licence and registration certificate (T.A.);
Possession of a loaded prohibited firearm (the Taurus handgun) without a licence and registration certificate (T.A.);
Possession of a firearm while prohibited from doing so (T.A.);
Assault with a weapon (T.A.);
Assault causing bodily harm (T.A.).
8There is currently a trial date of July 26, 2021. The current election is for a judge and a jury. O.W. is in custody on these charges – thus, he has been in custody since March 18, 2020. T.A. is on bail. Jury trials are currently suspended in the Superior Court due to the Covid-19 pandemic. It is not known at this time whether the suspension will be lifted by the time this trial is ready to commence.
9T.A. will be bringing a pre-trial application under s. 9 and s. 10(a) of the Charter. He will ask that evidence of his identification be excluded from trial.
10O.W. now asks for severance. Mr. Sewrattan, on behalf of O.W., brings a complicated severance application. His request is that there be four trials:
Trial 1: A joint trial on counts 1, 2, and 3 on the indictment. These are the counts on the home invasion itself.
Trial 2: A judge-alone trial for O.W. on his possession of firearms charges. This would be a simple trial involving the filing of transcripts (for the most part) from the first trial.
Trial 3: A jury trial for T.A. on his possession of firearms charges.
Trial 4: A joint trial on counts 7, 8, and 12. These are the weapons prohibition charges.
11Trial 4 will happen only in the event of convictions on the weapons possession charges. It is common that weapons prohibition counts are severed from the rest of an indictment when a jury trial is contemplated. That makes sense – if the accused is convicted or acquitted of a substantive weapons possession offence, then a conviction or acquittal on the weapons prohibition offence would follow virtually automatically. The jury would never hear the highly prejudicial information that the accused was on a weapons prohibition. That, however, is not the key issue on this severance application.
12Mr. Sewrattan argues that the interests of justice require a severance. The legal issues on each aspect of the case are different and require a different defence response. The key legal issue on the home invasion counts is identity. The key legal issue on the weapons possession counts is knowledge and control, at least for O.W. O.W.’s current intention is to testify that he did not possess a firearm or know that anyone else possessed a firearm during the robbery – with the obvious implication that the third, unknown robber hid the H&K handgun in the toolbox and then managed to get away. Thus, if the counts are not severed, O.W. would likely implicate himself on the home invasion counts.
13In his submissions, Mr. Sewrattan acknowledged another complicating factor. O.W. is prepared to re-elect and have a trial by judge alone if the matter proceeds to trial in July of this year. T.A. intends to keep a jury. The default election for both men in a joint trial would, therefore, be judge and jury: Criminal Code, s. 567. If the suspension on jury trials is not lifted by the time of the trial – something that is not yet known – then O.W.’s trial would be delayed while he remains in custody.
14Mr. Sewrattan further argues that O.W.’s intention to testify on some counts but not others must be accorded significant weight, although he fairly acknowledges that it is not determinative. There is no possibility of inconsistent verdicts if the counts are severed, he argues. The Crown has not made (and could not make, given the facts) a similar fact argument. Finally, given the complicating factors of the Covid-19 pandemic and the problem of potentially inconsistent elections there is a significant risk of prejudice to O.W.’s right to be tried within a reasonable time.
15Section 591(3) of the Criminal Code authorizes the court to sever counts and accused where the interests of justice so require:
(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.
16The interests of justice include the accused’s right to be tried on the evidence admissible against him, as well as society’s interest in proceedings that are efficient and cost-effective: R. v. Last, [2009] 3 S.C.R. 146, 2009 SCC 45 at para. 15. The Court suggested a non-exhaustive list of factors that a court should consider:
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.
17The most important factor that O.W. points to is his desire to testify on the charges relating to possession of the H&K handgun. He may well implicate himself on the armed robbery count when he does so, although his defence is different on the gun possession count: identity vs. knowledge and control. His desire to testify on some counts but not others should be accorded “substantial weight”: R. v. Durant, 2019 ONCA 74 at para. 75.
18In R. v. Durant the accused was charged with two counts of murder. The murders had some similar features: both victims were sex workers who died of blunt force trauma to the head; had ingested cocaine; and the blood of each was found in Durant’s home. There were some dissimilar features as well. The accused wished to testify regarding one of the murders but not the other. The two murders were over two years apart. The trial judge granted the Crown’s similar fact application. The trial judge denied the defence severance application. The trial judge later denied two more mid-trial applications based on evidence called by the Crown. The Ontario Court of Appeal allowed the appeal. Watt J.A., for the Court, found that the trial judge should not have granted the similar fact application. In the circumstances of that case, the accused’s desire to testify on one count but not the other should have been accorded substantial weight.
19In R. v. Jeanvenne, 2010 ONCA 706, the accused was tried on two counts of murder. The two murders were 17 years apart. The mechanism of death, motive, weapons, and places were very different. Jeanvenne was the target of a “Mr. Big” operation in relation to a 2000 execution-style murder. He told undercover police officers’ details about the 1983 murder. The investigation was the only common denominator. Blair J.A. for the Court of Appeal found that the trial judge erred by failing to grant severance under the circumstances.
20In R. v. Last, the accused faced an indictment with two counts of sexual assault. One was a violent sexual assault in which the defence was identity. The other was a sexual assault where the defence was consent. The Court found that an intention to testify was important but not determinative. The trial judge should be satisfied that the circumstances objectively justify testimony on some counts but not others.
21Last, Jeanvenne, and Durant are all distinguishable from this case. Those cases involved unrelated crimes on the same indictment where it was understandable that the accused would want to testify on one but not the other (although the appeal was allowed for different reasons in Last). In this case, the gun charges are intimately connected to the home invasion. Moreover, even if O.W. did not physically possess the H&K handgun, it may well be open to the jury to find that he was a party to the handgun offences. The situation would be more like that of Last, Jeanvenne, and Durant if the Crown had joined an entirely different home invasion count from a different day with different victims to the indictment.
22Mr. Sewrattan also argues that there is no possibility of inconsistent verdicts and that that the Crown could not successfully bring a similar fact application. I agree that if the counts were severed as the defence suggests that there would be little prospect of inconsistent verdicts. It may be that the identification evidence on the home invasion is stronger against T.A. than against O.W.; and may be that a jury has a reasonable doubt about O.W.’s knowledge of the gun found in the toolbox; or whether O.W. knew that T.A. at a gun. At this point the Crown has not brought a cross-count similar fact application. The Crown may do so at the close of the evidence: R. v. R.C., 2020 ONCA 159 at para. 37 although it is unknown at this point if the Crown will. Again, were I considering two unrelated home invasions I might come to a different conclusion. The prospect of a similar fact application is a neutral factor in this case.
23In my view, the main factor potentially favouring severance is the risk to O.W.’s right to a trial within a reasonable time, while he remains incarcerated. It is, however, premature to apply that factor. The court – and the parties – will be in a better position to evaluate when the trial date is closer and there is clarity about whether jury trials can proceed.
24Mr. Sewrattan fairly concedes that the legal and factual nexus between counts; the complexity of the evidence; and the multiplicity of proceedings are factors that do not favour severance.
25When I balance the factors, I decline to order severance.
26The first reason I decline to order severance is that there would be a multiplicity of proceedings. As the indictment currently stands, there would be two trials (assuming the jury election is maintained): one substantive, and one short trial where the evidence simply applied to the weapons prohibition counts (in the event of convictions on the firearms charges). If severance were granted, there would at least four trials: three would be substantive. The filing of the transcripts from T.A’s trial on counts 1-3 on the weapons counts would save some time, no doubt, but that trial would still require a viva voce evidence from several police officers. It is undoubtedly the policy of the law to avoid a multiplicity of proceedings: R. v. Cross (1996), 112 C.C.C. (3d) 410 (Que.C.A.) at para. 34.
27The second reason I decline to order severance is that O.W.’s desire to avoid testifying on some counts but not others in this situation does not outweigh the factors favouring a joint trial. The counts are not disjointed. They do not involve entirely separate criminal incidents. Rather, they involve a closely connected set of facts. Respectfully, this is no different from any other criminal trial involving connected facts giving rise to separate criminal transactions. It is understandable that an accused person may want to employ different tactics to deal with different aspects of the case, but that cannot be allowed to override other considerations unless it would jeopardize fair trial rights. That is not the case here.
28The third reason I decline to order severance is the limited risk of prejudice to O.W. in a joint trial. There is some risk of prejudice to O.W. as a result of the volume of evidence and the effects of the verdicts across counts. That risk exists in any trial involving multiple accused and interlocking facts. That risk must be weighed against the factual and legal nexus of the charges. The police found O.W. hiding in a shed only a short distance away from the scene of the home invasion; the police found a gun in that shed; and the police also found clothing matching the description of one of the intruders. There is a close legal and factual nexus between the counts. The probative value of that nexus outweighs the risk of prejudice to O.W. in these circumstances.
29The application for severance is therefore dismissed. That said, I am most concerned about O.W.’s continued incarceration if a jury trial is not possible in July due to the continued pandemic. O.W. is not precluded from bringing another severance application at that time based on the risk of a right to trial within a reasonable time.
30At the beginning of this application, counsel for O.W. requested a ban on his client’s identity in order not to prejudice his right to a fair jury trial. The request was not opposed by the Crown or counsel for T.A. I agreed and ordered the ban pursuant to the court’s common law power: R. v. Mentuck, 2001 SCC 76; R. v. Dagenais, [1994] 3 S.C.R. 835. The ban will expire at the commencement of the trial.
Released: June 2, 2021
COURT FILE NO.: CR-21-30000023-0000
DATE: 20210602
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
O.W. & T.A.
REASONS FOR JUDGMENT ON SEVERANCE APPLICATION
R.F. Goldstein J.