Court File and Parties
Court File No.: CR/22-0533 Date: 2024/06/03 Ontario Superior Court of Justice
Between: His Majesty The King, Crown And: Marsha Gonzales, Accused And: Marshall Gonzales, Accused
Counsel: S. MacDougall, for the Crown Attorney S. Dimitrijevic, on behalf of Marsha Gonzales T. Okada-Phillips, on behalf of Marshall Gonzales
Heard: April 25 and 29, 2024
Before: A. J. Goodman J.
Mid-Trial Ruling on Timing of Directed Verdicts
[1] In the course of a jury trial and following the close of the Crown’s case, both accused, Marsha Gonzales (“Marsha”) and Marshall Gonzales (“Marshall”) brought directed verdict applications seeking dismissal of all counts.
[2] Marsha is first-named on the indictment and she was charged with four counts; including two firearms related offences, possession of proceeds of crime, and one count of possession for the purpose of trafficking in cocaine, contrary to their respective provisions in the Criminal Code, R.S.C. 1985, c, C-46 and Controlled Drugs and Substances Act (“CDSA”), S.C. 1996, c.19, respectively. Marshall, named second on the indictment, was confronted with similar Criminal Code charges, albeit he did not face the count related to the CDSA offence.
[3] Upon hearing the submissions of counsel, I ruled that the directed verdict applications for both accused would be rendered prior to the Marsha’s election as to whether to call a defence. I dismissed the directed verdict application in respect of Marsha with brief reasons on the record. Successively, I granted a directed verdict in relation to Marshall and dismissed the case against him.
[4] Interestingly, the timing of rendering divergent, directed verdicts in the circumstances of this particular jointly-charged case [1] has not been considered specifically by any court. Indeed, any guidance that does exist is either peripheral or indirect, with some of the jurisprudence being referenced from cases arising from 50 years or so ago.
[5] Given the somewhat novel nature of the timing of the directed verdict applications in the specific circumstances of the case, I advised counsel that written reasons would follow. These are my reasons.
Issue
[6] When is the appropriate timing of the directed verdict ruling where there are two (or more) accused persons and the directed verdict ruling may be disparate as between both accused.
[7] In particular, the parties were asked to address the following hypothetical situation: suppose there was a ruling unfavourable to the first-named accused on the indictment and a favourable ruling dismissing the case against the second-named defendant. A potential concern would be that the second-named defendant, could then be called upon to testify on behalf of his or her co-accused, with an unqualified degree of impunity. Would this result in unfairness to the prosecution? Would this be an affront to the proper administration of justice? Is there potential prejudice to the first-named defendant for delaying the directed verdict ruling until after he or she elects and calls evidence in the defence of the charges?
Positions of the Parties
[8] The Crown submits that the law is unsettled and conflicting. The concern is for inconsistent verdicts where one of two accused persons is granted a directed verdict, especially if such defendant is second on the indictment and can then testify on behalf of the co-accused. Much of the case law does not address joint trials in these particular circumstances. The Crown suggest that the dated jurisprudence from British Columbia courts ought to be followed.
[9] Mr. Okada-Phillips, on behalf of both accused, submits that there is no clear answer on point. The caselaw arising from British Columbia and elsewhere is dated and is pre-Charter jurisprudence. Any delay in providing the ruling would result in unfairness to both accused, especially if one ruling was provided for the first-named defendant and the second-named defendant on the indictment was compelled to wait and participate in the proceedings until the end of the trial or the co-accused’s case.
Discussion
[10] The majority of the caselaw on directed verdicts discusses the topic in the context of sufficiency of the Crown’s evidence. There is less caselaw on the procedural aspects of directed verdicts, and more specifically, the timing. The caselaw that is available is limited and is often contradictory.
[11] The seminal case providing the test for a directed verdict is R. v. Shephard, [1977] 2 S.C.R. 1076. That test, set out at 1080, is:
... whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.
[12] The concurring decision of Dickson C.J. and Wilson J. in Mezzo v. The Queen, [1986] 1 S.C.R. 802, written by Wilson J., affirmed this as the leading case and requisite test. Wilson J. further recognized that the test is subject to different interpretations; but, if one reviews the caselaw before Shephard, it becomes clear that the trial judge’s role on a directed verdict is narrowly circumscribed: See Mezzo, at 809-810.
[13] One of the competing interpretations attached to the Shephard test is the standard of evidence that is required for a directed verdict. Wilson J. put this controversy to rest in Mezzo, by finding the proper standard is that the trial judge may intervene and give a directed verdict when there is no evidence capable of supporting a conviction. There need not be a complete absence of evidence; rather, it is an absence of evidence to support a conviction: See Mezzo, at 812-813.
[14] Wilson J. further cautioned that the absence of evidence standard does not vest an unbounded discretion over the qualitative aspects of the evidence of a trial judge: Mezzo, at 816. Rather, “poor quality of evidence which merely raises a suspicion may legitimately be withheld from the jury in contradistinction to evidence that is poor in the sense of lacking credibility”: Mezzo, at 816-817. Ultimately, Wilson J. concluded, at 820:
[W]here the frailties in the evidence can be remedied by a caution, the judge should leave the matter to the jury. This, indeed, is the ultimate test; can the frailties be remedied by an appropriate caution? It is not, in my view, good enough for a trial judge to make a finding as to the quality of the evidence. He must go on to determine whether the adverse conditions for observation can be taken care of by an appropriate caution. If they can, then Ritchie J.'s test of sufficiency in Shephard can be met, i.e., there is "evidence upon which a reasonable jury properly instructed could return a verdict of guilty" (p. 1080).
[15] Overall, Shephard remains the leading case on the test for a motion for a directed verdict. However, the Ontario Court of Appeal in R. v. Turner, 2012 ONCA 570, 292 C.C.C. (3d) 69, noted that some refinements have been made to the Shephard test. For example, in R. v. Charemski, [1998] 1 S.C.R. 679, the Supreme Court of Canada instructed the sufficiency of evidence must be assessed in reference to the burden on the Crown to prove the case beyond a reasonable doubt: Turner, at para. 16. Likewise, the Supreme Court in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, held that where there is no direct evidence available, the trial judge must engage in a limited weighing of circumstantial evidence to assess whether the inferences considered by the Crown are reasonable: Turner, at paras. 17, 28.
[16] What is more important to this case, however, is the procedure and timing of the directed verdict. To a limited extent, the procedure was addressed by the Supreme Court in R. v. Rowbotham, [1994] 2 S.C.R. 463. There, the court entertained, and ultimately adopted, a recommendation from the Law Reform Commission of Canada to streamline the traditional procedure for directed verdicts of acquittal: Rowbotham, at 477.
[17] To start, the court began by reviewing the caselaw on the proper procedure for a directed verdict. In short, the judge would direct the jury to acquit and discharge the accused: Rowbotham, at 467-469. There was a clear instruction that the jurist should not withdraw the case from the jury if a directed verdict of acquittal was appropriate; to do so would be an error: Rowbotham, at 467-469.
[18] Then, the court addressed the proposal from the Law Reform Commission of Canada. The proposed reform was as follows: where there is no evidence to sustain a conviction, the judge should simply order a judgment of acquittal. The judge need not direct the jury to return a verdict of not guilty: See Rowbotham, at 469-470.
[19] In considering this recommendation, the Supreme Court looked at the public policy reasons behind the traditional procedure. The court held the original justification of directing the jury to return a verdict of not guilty – prevention of abuses of the judge’s authority to discharge jury – was not relevant to the proposed procedural reform for two reasons: Rowbotham, at 470-471.
[20] First, judicial abuses of authority are protected against in appeal rights as set out in the Criminal Code and the Canadian Charter of Rights and Freedoms. Second, there is no prejudice to the accused in the proposed reform because it authorizes the judge enter an acquittal only.
[21] Moreover, the Supreme Court found the proposed reform made sense because it would eliminate unnecessary delay and needless formality; reduce the frustration of jury members; reduce the risk of jury disobedience; preserve jury independence; and would preserve the division of responsibilities between the judge and jury: Rowbotham, at 472-473.
[22] The Supreme Court also clarified that the reforms are explicitly related to the procedure that should be followed and have no implications on the test for a directed verdict: Rowbotham, at 474. Furthermore, the court provided interpretations of the Criminal Code and Charter to ensure appeal rights would capture a directed verdict of acquittal: Rowbotham, at 474-476. Last, the court instructed that the reform does not undercut the accused’s rights to an election of mode of trial because the modification works to the advantage of the accused: Rowbotham, at 476-477.
[23] While Rowbotham is helpful for the procedure on a directed verdict, it does not assist with determining the appropriate timing that befalls the particular situation in this case. As such, I endeavour to conduct a brief review of some of the caselaw that has discussed timing of directed verdicts, directly or peripherally, to help clarify the law on this point.
[24] Some cases say the proper timing of a directed verdict is at the end of the entire trial. This is true even in the case of trials with joint accused.
[25] For example, in R. v. Andrews and Van Amerongen, 8 C.R. (3d) 1 (B.C.C.A.), three accused were charged with first-degree murder. At the close of the Crown’s case, the accused moved for the trial judge to direct the jury to acquit on the indictment charging first degree murder on the basis that there was no evidence of planning and deliberation. The trial judge ruled against the motion and left open the possibility of a directed verdict at the end of trial: See Andrews, at 29.
[26] The true issue the trial judge faced in Andrews was the lesser and included offences captured by first-degree murder. The British Columbia Court of Appeal took note that there was no precedent to address situations where the jury has the right to make an alternate verdict: Andrews, at 30. The British Columbia Court of Appeal then ruled, at 31:
To my mind, it is plain that before a case is fully heard a trial judge should not direct an acquittal of anything less than the whole charge, including any alternate findings of guilt that they are entitled to find thereunder. It is only when the offence and any included offences are put to the jury for their deliberation that they can be instructed what verdicts they are entitled to reach and on what they must acquit.
It seems to me that the traditional view is that if there is no evidence upon which a jury can "convict" an accused the charge should be "withdrawn" from consideration or, actually, a directed verdict given. That is then the end of the case. If, on the other hand, there is evidence to go to the jury upon which the jury could convict even of a lesser or included offence, the case should not be "taken from" it until the end of the trial.
[27] Ultimately, the British Columbia Court of Appeal found no error by the trial judge: Andrews, at 31-32.
[28] Andrews was followed in other cases arising from British Columbia, including by the same court in R. v. Cruz (1995), 102 C.C.C. (3d) 183 (B.C.C.A.). In Cruz, the appellant was charged with first-degree murder. At the start of trial, he offered to plead guilty to manslaughter, but the Crown refused to accept the plea. At the close of the Crown’s case, the appellant moved for a directed verdict on the count alleging first degree murder. The trial judge dismissed the motion. The appellant elected not to call any evidence and again moved for a directed verdict. The motion was dismissed, and the appellant was convicted of second-degree murder.
[29] The appellant appealed on three grounds, including that the trial judge erred in refusing a motion for directed verdict on first degree murder and the trial judge erred in holding the court was bound by Andrews.
[30] On the former ground of appeal, the British Columbia Court of Appeal ruled the trial judge did not err in refusing to direct the jury to acquit on the offence of first-degree murder. At trial, the Crown advanced two theories to get to first-degree murder. Both grounds were tenuous, but the trial judge could not give a directed verdict of acquittal because there was some evidence, if believed, that could justify a conviction.
[31] The British Columbia Court of Appeal addressed the latter ground of appeal in obiter. The court considered, on one hand, that Andrews was a case where there were multiple accused, and found “it is understandable that a court should not direct an acquittal of one accused on the ground of no evidence before all the evidence at the trial has been heard.” On the other hand, the court recognized the approach in civil cases is to order a non-suit in favour of one defendant while the trial is continuing against other defendants to prevent inconsistent verdicts. The prevention of inconsistent verdicts is especially important in criminal trials, wrote the British Columbia Court of Appeal, because it could result in “one accused being acquitted of first-degree murder and subsequent evidence or verdicts in the same case showing the acquitted accused was indeed guilty of that offence.”
[32] The court in Cruz concluded that Andrews is authority for the proposition that a trial judge cannot direct an acquittal on first degree murder where the trial will continue on other included offences. Accordingly, the appeal was dismissed.
[33] I respectfully disagree with the approach to timing of directed verdicts in Andrews and Cruz. I find that Andrews is distinguishable from the case before me.
[34] Returning to the hypothetical in this case as an example. Where two accused are charged with a crime and where the trial judge decides to grant a directed verdict to the second-named defendant on the indictment, but not to the first, if the trial judge gives the directed verdict instruction at the end of the Crown’s case, this gives rise to a risk that the discharged accused will be called as a witness in favour of the first-named accused and could admit to the crimes charged. Alternatively, the trial judge could wait to issue the directed verdict until the end of the trial, being after the Crown has closed their case and after the first or both defendants have called their evidence, if they elect to do so.
[35] While this latter approach is suggested in some of the jurisprudence, in my view, taking this approach would be a violation of the second accused’s right to make a full answer and defence per s. 11(d) of the Charter. It would also be unfair to the first accused because the trial judge will have known, by the end of the Crown’s case, whether a directed verdict will be entered, but will have allowed them to go through the process of calling a defence, if they so choose. It would also subject the first named accused to be cross-examination by the second named accused. And, it would forego the ability to call his or her co-accused as a witness in their defence.
[36] Irrespective of the number of accused persons and directed verdict applications, I am persuaded that the proper timing of a directed verdict is at the close of the Crown’s case, before the accused is put to their election of whether to call evidence.
[37] The approach I am suggesting aligns with the decision of the Manchester Queen’s Bench in Regina v. Abbott, [1955] 2 Q.B. 497. There, at 504, the court wrote “[i]f there was no evidence against the appellant he was entitled to be acquitted and leave the dock. The jury would then have to decide whether they were satisfied Mrs. Wales committed the offence. They would hear her defence and they might decide that it was the appellant who committed the offence.” It can be inferred from this passage that the discharge of the accused would be done before the defence called evidence.
[38] The court continued, at 505, writing “[i]n our opinion, the judge ought to have said at the end of the case for the prosecution that there was no existing evidence against the appellant Abbott.” This makes clear that the directed verdict in that case should have been given at the end of the case for the prosecution, and the trial judge was in error for not doing so. Finally, at 506, the court held:
[I]t cannot be right for a judge to leave a case to the jury where the whole of the structure upon which the prosecution has been built up to that moment collapses and falls, for that is what happened in this case. Once it was shown that neither Mrs. Warburton nor the appellant could have taken part in the telephone conversation upon which the whole of the case for the prosecution was built, it seems to me that it was not only the duty of the judge to point out, but that it was the prisoner’s right to say, that the case against him had collapsed, and that he was not called upon to answer the case further.
[39] Although it is quite dated, I elect to follow Abbott. It is factually similar in that there are multiple accused tried together, but not all of them are receiving a directed verdict. It also considers the possibility of inconsistent verdicts and concludes that the accused is entitled to be discharged at the close of the Crown’s case if there is insufficient evidence to establish guilt beyond a reasonable doubt for the crimes they are charged with.
[40] I observe that Abbott was distinguished from R. v. Vander-Beek and Albright, [1971] S.C.R. 260. There, the appellants moved for a dismissal of the charges and a verdict of acquittal at the close of the Crown’s case: Vander-Beek, at 262. The trial judge denied the motion. The appellants then moved for an acquittal on the basis that there was insufficient evidence for a conviction and no evidence that could be called on behalf of the appellants: Vander-Beek, at 262-263. The trial judge reserved the decision until all the evidence had been heard.
[41] The three accused were acquitted after trial. One testified in his own defence and raised a reasonable doubt about his involvement: Vander-Beek, at 262-263. The other two were acquitted by the trial judge on the basis that the Crown had not led sufficient evidence to establish guilt beyond a reasonable doubt: Vander-Beek, at 264.
[42] The acquittals were set aside and a new trial was ordered by the British Columbia Court of Appeal. The appellants appealed that judgment, but the appeal was denied by the Supreme Court of Canada. The majority of the Supreme Court found the trial judge had ample evidence to convict all three accused and it was an error in law for the trial judge to rule there was insufficient evidence to acquit: Vander-Beek, at 263.
[43] I agree that Vander-Beek and Abbott are factually different. Notwithstanding the factual differences though, in my view, the approach in Abbott, and the approach suggested here, should apply to any case where the trial judge finds a directed verdict is appropriate at the close of the Crown’s case. Many of the above-referenced cases pre-date the Charter.
[44] I observe that, more recently, in R. v. Baker, 2017 BCSC 2533, the court contemplated the timing of a directed verdict. There, three accused were charged with first-degree murder. In that case, only one of the three applied for a directed verdict prior to any of the accused making their election whether to call evidence. The Crown and two co-accused objected to the application, arguing it should be heard after the evidence is called by the accused: Baker, at paras. 4, 8-9.
[45] The trial judge in Baker cited R. v. Kim (1930), 53 C.C.C. 252 (B.C.C.A.), wherein the court said that parties indicted jointly should be kept together until the end of trial, and then a motion to dismiss an accused can be made: Baker, at para. 10. The trial judge also cited R. v. Pena, 1997 CarswellBC 1190 (S.C.), which considered the timing of the directed verdict and found even though it is a disadvantage to an accused to wait until the end of trial for a ruling on a directed verdict, there are other disadvantages flowing from the nature of a joint trial: Baker, at para. 11.
[46] After setting the stage to find the motion should be brought at the end of the trial, the judge considered the possibility of injustice to the accused moving for a directed verdict if the court waited until all the evidence was heard: Baker, at para. 12. The trial judge then concluded the circumstances of injustice were not present in that case and instructed the accused to bring the application for directed verdict at the close of trial. Akin to the dilemma raised in the case at bar, the trial judge in Baker was concerned about the risk of inconsistent verdicts if the motion was heard before the accused were put to their election whether to call evidence: Baker, at para. 14.
[47] There are some cases where a directed verdict in a prosecution of multiple accused was brought, heard, and ruled on at the close of the Crown’s case. These cases did not specifically address the timing of directed verdicts but still demonstrate that issuing a directed verdict of acquittal at the close of the Crown’s case is an appropriate and acceptable practice.
[48] One example is R. v. Hong, 2015 ONSC 4562. Boswell J. was faced with four accused charged with first-degree murder and attempted murder. At the close of the Crown’s case, all four accused brought a motion for a directed verdict on the basis that the Crown’s evidence did not establish the essential element of planning and deliberation. In addition, one of the accused who acted as the getaway driver moved for a directed verdict that the Crown’s evidence could not establish second degree murder either: See Hong, at para. 1.
[49] First, Boswell J. found even though the accused were not asking for a directed verdict of acquittal, the same principles were engaged: Hong, at para. 54. Second, Boswell J. cited the Shephard test, as well as the refinements to it: Hong, at paras. 55-56. Then, Boswell J. launched into a detailed analysis of the standard by which the court should assess the sufficiency of the Crown’s evidence: Hong, at paras. 58-74. He made clear that his role as trial judge was to determine whether the Crown had met the evidentiary burden required such that a reasonable jury, properly instructed, could return a guilty verdict on the evidence tendered: Hong, at para. 74.
[50] The motions for directed verdicts for first-degree murder were dismissed. Boswell J.’s analysis of the sufficiency of evidence required on a directed verdict motion is sage. However, this ruling does not fully address what is important to the case before me. Rather, what is imperative is the timing of this analysis. The learned jurist considered and ruled on the motions by the accused at the close of the Crown’s case. The cases did not address any notion for the potential for disparate findings and the status of various co-accused on the indictment. In any event, the overall approach is in keeping with Abbott and aligns with the approach I am suggesting here.
[51] It is entirely possible, as contemplated by the Crown, and what actually occurred in this case, that the discharged co-accused would testify in the defence of the remaining accused. Yet, if the Crown does not have a case, it ought not be supported by a co-accused cross-examining a co-defendant, when that individual should be let out of the prosecution.
Conclusion
[52] Directed verdicts should be determined and rendered at the close of the Crown’s case, if the court is of the view that there is insufficient evidence in accordance with the Shephard test to ground to a conviction against one, multiple or all accused.
[53] As mentioned, I am of the view that the risk of inconsistent verdicts is outweighed by the right of the accused to a fair trial and the right of the accused to make a full answer and defence. Even in a situation such as arises in this case, the directed verdict rulings for all accused, whether consistent or diverging ought to follow at the end of the Crown’s case. This approach ensures that the remaining accused, if any, know the case to meet and can bring the best evidence available in favour of their defence.
[54] This timing applies regardless of the downstream effects that it may have on a co-accused’s case. Indeed, the interests of a fair trial and related Charter protected rights of all accused must prevail.
A. J. GOODMAN, J. Date: June 3, 2024
Footnote
[1] Evidently, while addressing the procedures and this area of law, the parties were not aware that Marsha’s application would be dismissed, while Marshall’s directed verdict application would be granted.