Court File and Parties

Court File No.: CR-22-30000517-0000 Date: 2023-03-28 Ontario Superior Court of Justice

Between: His Majesty the King – and – Yasmin Muzafary and Sheldon Livingston

Counsel: Devin Harm, for the Crown Geary Tomlinson, for the Applicant Sheldon Livingston

Heard: March 24, 2023

Judge: A.J. O’Marra J.

Application for Severance

[1] Immediately following the hearing on this matter, the court dismissed the application brought by Sheldon Livingston to sever his trial from his co-accused Yasmin Muzafary with reasons to follow. These are my reasons.

[2] The applicant is charged with assault with a weapon and take motor vehicle without consent, alleged to have occurred on December 30, 2021. The co-accused Yasmin Muzafary is charged with attempt murder, aggravated assault, dangerous driving causing bodily harm, fail to remain causing bodily harm, and two counts of assault with a weapon.

[3] The applicant, Mr. Livingston is the co-accused with Ms. Muzafary on the count of assault with a weapon.

[4] The applicant, Mr. Livingston seeks severance from his co-accused to have a separate trial pursuant to s. 591(3)(b) as it is the interest of justice to do so. He submits that a separate trial is required to permit him to call his co-accused in support of his defence of self-defence, and to make full answer and defence to the charge.

[5] A trial judge may order severance of the trial of a co-accused only if satisfied that the interest of justice so require. The interest of justice encompasses the interests of the accused, the co-accused and the community as represented by the prosecution. The trial judge may weigh the sometime competing interests and will direct severance only if the accused seeking severance satisfies the trial judge that severance is required. To satisfy that burden the accused must overcome the presumption that the co-accused who are jointly charged and are said to have acted in concert should be tried together.

[6] Section 591(3)(b) is silent as to what constitutes “the interest of justice”. The Supreme Court of Canada in R. v. Last, 2009 SCC 45, [2009] 3 SCR 146 at para. 16-17 stated that “the interests of justice” criteria are quite broad and encompasses the right of the accused to be tried on evidence admissible against him as well as society’s interest in seeing that justice is done in a reasonably efficient and cost effective manner.

[7] The courts have given shape to the broad criteria in s. 591(3) by identifying a number of non-exclusive factors which should be weighed by the trial judge to ensure that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial. In Last at para. 18 those factors include the following:

• general prejudice to the accused
• the legal and factual nexus between the counts
• the complexity of the evidence
• whether the accused intends to testify in 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

[8] The cases also emphasize that where it is alleged that an accused acting in concert there is a strong presumption in favour of joint trials.

[9] The courts have consistently stated that it is in the public interest that those alleged to be jointly involved in criminality be tried together. The reason for that consistency has been the recognition of the “strong policy reasons” premised on the legitimate objectives of the avoidance of inconsistent verdicts, the greater likelihood of the truth emerging about an incident if every participant gives his account on one occasion and the economies of a single trial (see R. v. Crawford, [1995] 1 SCR 858, at para. 30).

[10] The onus is on the moving party to establish, a balance of probabilities, that severance of the accused is required in the interest of justice (see R. v. Spanevello (1998), 125 CCC (3d) 97 (BCCA) Leave to Appeal to SCC refused 131 CCC 3rd VI at para. 46.

[11] The trial of the applicant and co-accused is currently set to begin October 10, 2023, in the Superior Court of Justice for four weeks with judge and jury.

Overview of the Factual Allegations

[12] It is alleged that on December 30, 2020, at approximately 12:24 a.m. two complainants, William Urbina, and Karen Guerra Raimundo were in a parking lot at 680 Markham Road, Toronto. The applicant and Ms. Muzafary arrived in the parking lot in a dark-coloured Nissan Centra. The four parties entered a vestibule ATM at the TD Canada Trust. After the four parties exited the ATM vestibule area there was a physical altercation that involved Ms. Muzafary and Ms. Guerra Raimundo. Mr. Livingston and Mr. Urbina engaged in a push and shove altercation. Ultimately, Ms. Muzafary entered the driver seat of the Nissan Centra and the applicant into the passenger seat. Ms. Muzafary drove the vehicle away.

[13] After the applicant and Ms. Muzafary drove away Mr. Urbina and Ms. Guerra Raimundo walked along the sidewalk toward the parking lot exit.

[14] Approximately three minutes after the initial altercation the dark-coloured Nissan Centra was driven back into the parking lot and stopped in front of Mr. Urbina and Ms. Guerra Raimundo who had sat down on the curb of the sidewalk. It is alleged that Mr. Livingston exited the passenger side of the vehicle holding a baseball bat and immediately engaged in a chase of Mr. Urbina striking him several times with the baseball bat from behind. It is alleged that Ms. Muzafary drove the vehicle at Ms. Guerra Raimundo who was sitting on the curb and drove over her and then moved the vehicle further through the parking lot where Mr. Livingston ran to it, and they departed the scene.

[15] Ms. Guerra Raimundo received severe injuries and was rushed to the hospital and required trauma surgery for multiple internal injuries. She survived.

[16] The case for the Crown consists of the evidence of the complainants and the owner of the vehicle said to have been taken without consent by Mr. Livingston, as well as surveillance of video from the location of the altercations. Both parties provided the court with a copy of the videos in their records on the application. The details of the events captured by surveillance video are outlined in Appendix A to these reasons.

[17] The position of the applicant is that Ms. Muzafary as a co-accused is not compellable as a witness by him, which he would do if he was tried separately to support a defence of self-defence. He submits that her evidence would be relevant and necessary to corroborate his evidence that the complainant Mr. Urbina verbally threatened to stab him prior to the alleged incident; that the applicant had expressed a need to return to the plaza to retrieve his lost personal effects prior to the alleged incident; that the applicant expressed a concern that his lost personal effects may have been found by the complainant or taken by him; and that the applicant expressed concern for his physical safety prior to returning to the plaza.

[18] As stated in R. v. Savoury, [2005] OJ No. 3112 at para. 28:

Where an accused seeking severance contends that his right to make full answer and defence will be prejudiced, unless the co-accused can be compelled to testify, two factors must be addressed by the trial judge:

• Is there a reasonable possibility that the co-accused, if made compellable by severance, would testify?
• If the co-accused would testify, is there a reasonable possibility that the co-accused’s evidence could affect the verdict in a manner favourable to the accused seeking severance?

[19] If the accused seeking severance can convince the trial judge that there is a reasonable possibility the co-accused will testify and that her testimony could affect the verdict by creating a reasonable doubt as to the accused’s guilt the trial judge may properly grant severance. It is nevertheless open to the trial judge to exercise discretion against severance if there are other factors making significant cogency that outweigh the potential impairment of the accused’s right to make full answer and defence occasioned by a joint trial. An accused is entitled to a fair trial but not necessarily the ideal trial from the defence perspective. (See Savoury, para. 29, citing R. v. Cross (1996), 112 C.C.C. (3d) 410 (Que. C.A.), at 419, leave to appeal to S.C.C. refused (1997), 114 (3d) vi (S.C.C.)).

[20] The applicant provided no information to support a finding there is a reasonable possibility that the co-accused if compellable by severance would indeed testify. Moreover, nothing was proffered to suggest there is a reasonable possibility that the co-accused would testify to support the concerns submitted by the applicant as to a perceived threat from Mr. Urbina subsequent to their departure or an expressed concern for his physical safety on his return to the plaza with a baseball bat.

[21] The video shows that as the person alleged to be Mr. Livingston chased down Mr. Urbina with the baseball bat, while Ms. Muzafary drove the vehicle forward, over the curb and over Ms. Guerra Raimundo.

[22] The evidence the applicant suggests that his co-accused might give in support of his concerns is at best speculative, which fails to provide a reasonable possibility that her evidence could affect the verdict in a manner favourable to the accused.

[23] There is clearly a nexus in time and place to the actions attributed to the applicant and his co-accused as they returned together, more than three minutes after disengaging from the previous altercation. Then they proceed, based on the video evidence, to attack the complainants, the applicant with a baseball bat, and Ms. Muzafary with the vehicle. In face of the video evidence, the desired evidence of Ms. Muzafary could not affect the outcome of the verdict in any way.

[24] Ms. Muzafary is listed first in the indictment and would be required prior to Mr. Livingston to declare whether she would call evidence in her defence. Should she do so Mr. Livingston would have his opportunity to cross-examine her at trial, rendering the application moot.

[25] The public’s interest in a single trial outweighs substantially any potential prejudice to the applicant’s ability to call Ms. Muzafary as a witness at trial. The visual and graphic evidence displays that it was a joint attack by both the applicant and Ms. Muzafary on the two complainants. Where the accused are acting in concert, they should be jointly indicted and tried.

[26] If the applicant and co-accused trials were severed the same witnesses and evidence would have to be called twice leading to an inefficient use of court resources. The evidence overlaps substantially, and all the witnesses would be required to testify at both trials.

[27] The applicant has not overcome the presumption that he and Ms. Muzafary should be tried together.

[28] In the result severance is denied.

A.J. O’Marra J.

Released: March 28, 2023

Appendix A

Security footage from these locations captured a sequence of events which depicts the following on December 30, 2020:

a. At approximately 12:24am, Ms. Guerra Raimundo and Mr. Urbina are seen walking northbound through the parking lot at 680 Markham Road. Both of them enter the ATM vestibule area of the TD Canada Trust.

b. A dark coloured Nissan Sentra travelled Northbound on Markham Road, made a left turn and entered the parking lot at 680 Markham Road. The Applicant is seen exiting the driver’s side of the Nissan and walked towards the ATM vestibule area of the TD Canada Trust.

c. Ms. Muzafary exits the front passenger side door of the Nissan Sentra and is also seen walking towards the ATM vestibule area of the TD Canada Trust.

d. While in the ATM vestibule area, the Applicant appears to hand a small clear bag with white contents inside to Mr. Urbina. The Applicant is also seen embracing or hugging Ms. Guerra Raimundo while inside of the ATM vestibule area.

e. Mr. Urbina, Ms. Guerra Raimundo, the Applicant, and Ms. Muzafary are observed all exiting the ATM vestibule area and walked towards where the Nissan Sentra was parked.

f. Ms. Muzafary returned to the front passenger seat of the Nissan. Ms. Guerra Raimundo opened the front passenger door and a physical altercation ensued between her and Ms. Muzafary. During the altercation, Ms. Muzafary appeared to be wearing a wig and it was pulled off. Her jacket was also pulled off over her head during the altercation.

g. Mr. Urbina and the Applicant were also involved in a physical altercation at the same time as the two females had been fighting. After Mr. Urbina and the Applicant male ceased fighting, the Applicant appeared to hand something to Mr. Urbina.

h. Ms. Muzafary then returned to the Nissan and entered the driver’s seat this time. She then emerged from the driver’s seat and appeared to point an object at Ms. Guerra Raimundo while she walked past the Nissan. The object is believed to be similar to a cell phone. Ms. Muzafary then got back into the driver’s seat once again.

i. Ms. Muzafary drove the Nissan toward Mr. Urbina and appeared to try to hit Mr. Urbina with the vehicle. Mr. Urbina managed to retreat backwards and avoid the Nissan. Ms. Muzafary then got back into the driver’s seat once again.

j. The vehicle drove out of the parking lot and turned to go left on Markham Road. The Applicant ran after the Nissan and both disappeared off camera.

k. Approximately 3 minutes and 40 seconds later, the same Nissan Sentra was observed making a right turn into the same parking lot at 680 Markham Road. Mr. Urbina and Ms. Guerra Raimundo were still in the parking lot at this time. The Nissan stopped and parked the vehicle right them.

l. The Applicant stepped out of the front passenger side of the Nissan holding a baseball bat. He chased after Mr. Urbina and struck him 4 times with the baseball bat.

m. At the same time this was occurring, the Nissan drove directly at Ms. Guerra Raimundo, whom had her back towards the vehicle, and ran her over. The front right side of the Nissan struck and drove over Ms. Guerra Raimundo.

n. The Nissan proceeded to where the Applicant and Mr. Urbina were in a physical altercation. The Applicant entered the front passenger side of the Nissan and the vehicle drove off westbound through the parking lot towards Greenbae Circuit.