Court File and Parties

COURT FILE NO.: CR-22-0003-0000 DATE: 2023 09 25

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – JEREMY MENARY

Counsel: Jennifer Briscoe, for the Crown/Respondent Morrie Luft, for the Accused/Applicant

HEARD: September 12, 2023

REASONS FOR DECISION ON SEVERANCE APPLICATION

Conlan J.

I. Introduction

[1] Jeremy Menary (“Menary”) is facing several criminal charges arising from his arrest by police in Burlington, Ontario during the early morning hours of December 30, 2019. He was found to be in personal possession of a loaded 9mm Glock handgun with a 15-round magazine inside it, $4230.00 in cash, and 7 grams of cocaine. In addition, the motor vehicle that he was in possession of contained 246 pills of fentanyl, 41.7 grams of marihuana, other cannabis products, 8 bottles of liquid hydrocodone syrup and codeine oral solution, and 2 cellular telephones.

[2] Menary applied previously to exclude all that evidence under section 24(2) of the Charter, alleging violations of his sections 8, 9, 10(a), and 10(b) rights. That application was dismissed by this Court.

[3] The trial by judge and jury was to commence quite some time ago but was adjourned in order to accommodate a severance application by the defence. That severance application was heard by this Court in Brampton on September 12, 2023. The hearing was quite brief (less than two hours in total) and consisted only of submissions by counsel on both sides.

[4] Menary wants to have a jury trial on what is now count 2 on the Indictment – possession of fentanyl for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act. He wants to have the other two counts, possession of cocaine for the purpose of trafficking contrary to the same section of the same statute referred to immediately above (count 1) and possession of a loaded prohibited firearm contrary to section 95(a) of the Criminal Code (count 3) severed from the Indictment.

[5] If severance is granted, Menary intends to not contest the cocaine and firearm charges. In accordance with the procedure outlined in R. v. Lopez-Restrepo, 2018 ONCA 887, [2018] O.J. No. 5873 (C.A.) and other decisions, in order to preserve his right to appeal this Court’s ruling on the Charter application, Menary proposes that he plead not guilty to the cocaine and firearm charges and call no evidence or challenge in any way an agreed statement of facts that would be filed, which statement would satisfy the essential elements of the said two charges and result in inevitable findings of guilt on those two charges. The jury trial on the fentanyl count would occur sometime afterwards.

[6] Actually, Menary proposed in his materials that the findings of guilt on the cocaine and the firearm charges would be held in abeyance until after the jury trial on the fentanyl count, however, this Court during oral submissions stated that the findings of guilt would not be held in abeyance, and knowing that Menary did not resile from his application.

[7] The materials from both sides contemplate, if severance is granted, the order taking effect immediately, an election or re-election to judge-alone as to mode of trial on the two counts not being contested, and so on. But that would not be appropriate in my view. The more cautious route would be to utilize section 591(4.1) of the Criminal Code and delay enforcement of the severance order until after the agreed statement of facts has been filed with the Court and on the same date that the Court is to take the pleas from Menary on the two uncontested counts, accept the agreed statement of facts, and then enter the two findings of guilt. That would avoid any potential that Menary might change his mind and we end up with two contested trials.

[8] At one point during oral submissions, I understood Ms. Briscoe to say that, if severance is granted, and if a re-election to judge-alone on the two uncontested charges is required, then the Crown may not consent to that re-election. After some further back and forth with the Court, however, I do not see that anymore as a possibility. Of course, if severance is granted, it would be unreasonable for the Crown to then insist on conducting two separate jury trials.

[9] I end these introductory remarks by emphasizing what this application, and what this ruling, is not about. It is not about making a decision on what evidence is or is not admissible at trial. More specifically, there is no application before this Court for an order to either admit or to exclude evidence at a trial on count 2 (the fentanyl) reference to Menary being in personal possession of a firearm, or reference to him having been found guilty of that offence.

[10] On its face, absent an application by the Crown, the presumption is that, even on a multiple count indictment (which this would not be if severance is granted), each count must be assessed separately, and evidence on one count is not to be used as supporting a finding of guilt on another count, and a proper instruction is that a finding of guilt on one count is not evidence of guilt on another count, and a proper instruction would also include a warning that propensity reasoning is not permissible. Watt’s Manual of Criminal Jury Instructions (Second Edition), The Honourable Mr. Justice David Watt, 2015 Thomson Reuters Canada Limited, Final 44-A; R. v. Farler (2006), 2006 NSCA 42, 212 C.C.C. (3d) 134 (N.S. C.A.).

[11] If severance is granted, the defence expressly concedes as being admissible at trial on the fentanyl charge the evidence that Menary was found to be in personal possession of cocaine for the purpose of trafficking, and actually the facts about the cocaine may go in on consent in an agreed statement. The defence expressly concedes further that, at the trial on the fentanyl charge, the defence will admit that possession was for the purpose of trafficking. The sole issue at trial will be possession – whether Menary had knowledge and control of the fentanyl found inside the van.

[12] Whether and to what extent evidence about the gun is admissible at trial on the fentanyl count is not being decided by this ruling on severance. The same applies to a finding of guilt against Menary on the firearm charge, if severance is granted.

II. The Law

[13] The Court’s authority to sever counts on an indictment is found in paragraph (a) of subsection 591(3) of the Criminal Code. The test is whether “the interests of justice so require”.

[14] There is a balancing exercise between the risk of prejudice to the accused and the public interest in having a single trial. Here, however, that public interest in having a single trial is satisfied, for all practical purposes, even if the severance application is granted. The reason is that the “trial” on the cocaine and firearm charges will be very brief, without any viva voce evidence, based entirely on an agreed statement of facts, and wholly uncontested.

[15] The key consideration is whether the interests of justice require severance. Menary’s constitutional right to a fair trial is a necessary ingredient of a just and proper verdict on each of the three charges that he is currently facing.

[16] There is no exhaustive list of what factors the Court should consider on a severance application, however, the Supreme Court of Canada has provided a list of potential considerations: 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 multiple proceedings, the use of similar fact evidence at trial, the length of the trial, the potential prejudice to the accused regarding his right to be tried within a reasonable time, and the existence of antagonistic defences as between co-accused persons. Last v. The Queen (2009), 2009 SCC 45, 247 C.C.C. (3d) 449 (S.C.C.).

[17] Where, as here, the accused wishes to maintain his mode of trial election (judge and jury) but also take advantage of the procedure endorsed in Lopez-Restrepo, supra, those circumstances may also be relevant to a severance application.

[18] Generally speaking, it is presumed that an accused will have one trial on all of the counts on the indictment. The onus of proof is on Menary to persuade this Court otherwise. The standard is on balance.

III. Analysis

[19] Looking at the factors outlined in Last, supra, this Court’s assessment is as follows.

[20] On prejudice to the accused, I think it is relevant that Menary is prepared to not contest the cocaine and firearm charges but still preserve his ability to appeal this Court’s ruling on the Charter application. In those circumstances, he cannot plead guilty to those two counts. On arraignment before the jury, he could plead not guilty to all three counts but make admissions that would enable the trial judge to effectively direct the jury to return verdicts of guilty on the cocaine and firearm charges. There is nothing novel about that. At the same time, however, it is not ideal in that it may cause a reasonable trier of fact to question why the accused pleaded not guilty to two charges that are then admitted, potentially impairing Menary’s right to a fair trial on the fentanyl count. More important, it is not ideal because it remains an open question how the jury should be instructed about the relevance of the firearm to the fentanyl allegation. Based on the submissions that this Court heard from the Crown on the within application, although I am expressly not deciding that issue now, I am quite concerned that the Crown intends to use the firearm in a legally impermissible way. For example, the Crown argued on the severance application that the jury needs to hear about Menary’s “character”, implying that possession of a firearm is essentially bad character evidence that makes it more likely that Menary had knowledge and control of the fentanyl in the van. That phraseology concerns me; normally, we instruct jurors that they may not use evidence of the accused’s bad character in deciding whether it is more likely that he committed the offence in question.

[21] Overall, I think that this factor, prejudice to the accused, runs in favour of granting the severance application.

[22] The legal and factual nexus between or among the counts is a factor that runs against the severance application, although not as strongly as the Crown suggests. Undoubtedly, the fact that Menary had a firearm is relevant to whether he had possession, in law, of the fentanyl in the van. It is fair for the Crown to argue, and for the jury to infer, that the firearm was for protection of the narcotics inside the vehicle. The Crown is incorrect, however, in submitting that the absence of the firearm somehow distorts the picture of Menary as a drug trafficker and takes away from the Crown’s theory of the case. The defence has expressly conceded that the jury will hear evidence that Menary was found to be in possession of cocaine and that he possessed that cocaine for the purpose of trafficking, and the jury will hear that Menary was in possession of thousands of dollars of cash. From those facts alone, it is not a stretch to anticipate that the jury may infer that Menary was involved in the drug trafficking subculture.

[23] On the complexity of the evidence, I do not agree with the Crown’s submission that “[t]his is not a complex case save and except it becomes one if the counts are severed as the Applicant suggests” (paragraph 24 of the Crown’s factum). If the severance application is granted, there will be one contested trial, on one count, limited to one of the four essential elements of that one count (whether Menary was in possession of the fentanyl). If anything, the evidence before the jury, and the jury trial itself, becomes simpler – not more complex. This factor runs in favour of granting the severance application.

[24] On the desire of the accused to testify on one or more counts but not on another or others, that factor also runs in favour of granting the severance application. Menary wants to testify on the fentanyl count; he does not want to testify on the other two counts. This is not a hollow or fanciful position for the accused to take. The cocaine and the firearm were found on his personal possession, while the fentanyl was found inside a motor vehicle that he may or may not be tied closely with.

[25] Both sides agree, as does this Court, that there is no possibility of inconsistent verdicts if severance is granted. That factor runs in favour of granting the severance application.

[26] Regarding the desire to avoid multiple proceedings, the Crown’s primary concern is that Menary had suggested in his application materials that the findings of guilt on the cocaine and firearm charges would be “held in abeyance while another proceeding against the accused before a jury involving witnesses proceeds” (paragraph 27 of the Crown’s factum). As alluded to earlier in these reasons, that will not happen. The findings of guilt will be entered before the jury trial commences. Still, this factor is one that works slightly against the severance application.

[27] The use of similar fact evidence is not relevant here. There is no application by the Crown. The Crown is not relying on it (paragraph 28 of the Crown’s factum).

[28] In terms of the length of the trial, I disagree with the Crown’s submission that “severance makes the proceedings complex, less efficient and time consuming” (paragraph 29 of the Crown’s factum). To the contrary – this factor runs in favour of granting the severance application. The jury trial will not necessarily be any shorter in length in terms of the testimony of the witnesses, but it will certainly be simpler, more efficient, and more focused in terms of the instructions to the jury – one count, one legal issue - possession.

[29] This Court agrees with both sides that (i) prejudice to the accused’s right to be tried within a reasonable time and (ii) the existence or likelihood of antagonistic defences are not relevant factors in this case.

IV. Conclusion

[30] On the overall balancing, it is this Court’s opinion that the accused has met his onus to establish that, in the interests of justice, severance is required. The application is therefore granted.

This Court orders as follows:

(i) pursuant to section 591(3) of the Criminal Code, counts 1 (possession of cocaine for the purpose of trafficking) and 3 (possession of a loaded prohibited firearm) are severed from the Indictment dated March 27, 2023 and are to be tried separately from count 2 (possession of fentanyl for the purpose of trafficking);

(ii) pursuant to section 591(4.1) of the Criminal Code, enforcement of the severance order made herein is delayed until after the agreed statement of facts has been filed with the Court and on the same date that the Court is to take the pleas from the accused on the two uncontested counts (possession of cocaine for the purpose of trafficking and possession of a loaded prohibited firearm), accept the agreed statement of facts, and then enter the two findings of guilt against the accused; and

(iii) the above shall take place before me, as soon as possible, and well in advance of the scheduled jury trial. I direct counsel to contact the trial office in Milton as soon as possible to schedule a date to appear before me on the uncontested trial regarding the cocaine and firearm charges. That appearance shall be in-person at Milton.

Conlan J.

Released: September 25, 2023