COURT FILE NO.: CR-24-0141-00

DATE: 2024-12-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Crown / Respondent

• and -

Henok Banjaw Telique Ricketts

T. Jukes, for the Crown / Respondent M. Hargadon, for the Accused / Applicant Banjaw H. Aly, for the Accused Ricketts

HEARD: December 3, 2024, at Thunder Bay, Ontario

Regional Senior Justice W. D. Newton

Reasons on Application for Severance

Overview

1Henok Banjaw and Telique Ricketts are jointly charged on an indictment with crimes arising from the death of Adrian Richardson on May 2, 2022. Telique Ricketts is charged with second degree murder and Henok Banjaw is charged with manslaughter.

2Their jury trial is set to commence on the April 2025 running list with jury selection on April 7 and the trial commencing on April 21.

3Mr. Banjaw brings this application to sever his charges from those of Mr. Ricketts in order to have his own trial.

4For the reasons that follow, the application for severance is dismissed.

The Facts

5Mr. Banjaw alleges that his role in the incident leading to Mr. Richardson’s death is limited to driving Ricketts and two others – Mr. Collander and Mr. Green – to Mr. Richardson’s residence. He alleges that he remained in the car while the others entered Mr. Richardson’s residence.

6Both Green and Collander have given statements to the police, and it is anticipated that they will be entering guilty pleas soon. The issue is whether Mr. Banjaw knew that the others planned to rob Mr. Richardson, and whether he knew that Ricketts had a handgun. Apparently, Mr. Collander will testify that Mr. Banjaw had no notion that a robbery was about to take place or that a firearm would be used. On the other hand, Mr. Green will testify that everyone, including Mr. Banjaw, was aware as they drove to Mr. Richardson’s residence, that Mr. Richardson was to be robbed with a gun and further, that Ricketts showed everyone the handgun.

Positions of the Parties

7Mr. Banjaw seeks to have his charges severed “as a matter of judicial efficiency” and states that, if severed, he would elect trial by judge alone and that the trial would last three to four days rather than three weeks with a jury as currently scheduled.

8Although a Charter 11(b) application has not been formally made, Mr. Banjaw notes that the net delay to the anticipated end of trial is approximately 32.5 months, which is above the 30-month presumptive Jordan ceiling. Mr. Banjaw argues that, if severed, the judge alone trial could be completed within 30 months.

9Mr. Ricketts takes no position on this application.

10The Crown opposes severance, as the co-accused are alleged to have participated in a joint enterprise resulting in Mr. Richardson’s death. The Crown further notes that two trials will require the duplication of testimony and take unnecessary, additional judicial resources, which are scant at best. As to 11(b), the Crown notes that no application has been brought, no precise calculation of the net delay has been made, and that complexity may extend the presumptive ceiling in cases involving co-accused.

The Law

11The Court may, where it is satisfied that interests of justice so require, order that an accused be tried separately from another pursuant to s. 591(3)(b) of the Criminal Code, R.S.C. 1985, c. C-46.

12The interests of justice “encompass those of the accused, the co-accused, and the community as represented by the prosecution”¹

13Persons accused of joint commission of a crime should be tried together.² An accused seeking severance must overcome the presumption that co-accused who are jointly charged, and who are said to have acted in concert, should be tried together.³

14Severance is not to be ordered “unless it is established that a joint trial will work an injustice to the accused”⁴

15Factors that courts have considered in severance applications include the following:⁵

a. the general prejudice to the accused;

b. the legal and factual nexus between the counts;

c. the complexity of the evidence;

d. whether the accused intends to testify on one count but not another;

e. the possibility of inconsistent verdicts;

f. the desire to avoid a multiplicity of proceedings;

g. the use of similar fact evidence at trial;

h. the length of the trial having regard to the evidence to be called;

i. the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and

j. the existence of antagonistic defences as between co-accused persons.

16Severance can also be granted when an accused contends that his right to make full answer and defence will be prejudiced unless the co-accused can be compelled to testify.⁶

Analysis and Disposition

17The charges against the two accused are both factually and legally connected and, presumptively, should be tried together.

18The 11(b) issue is yet to be determined and no formal application has been brought. It is not clear that an 11(b) application would succeed.

19Multiple proceedings will require duplication of testimony and will challenge judicial resources.

20Mr. Banjaw has not established that a joint trial will work an injustice to him.

21The application is dismissed.

22Counsel for Mr. Banjaw has indicated that one day is required for cross-examination of the deponent of the ITO for the wiretap authorization and argument on whether the authorization should have issued. Counsel are to arrange a date for this argument with the trial co-ordinator. That date is to be confirmed at assignment court on January 27, 2025. If that application cannot be set before the trial judge, I will appoint a case management judge to hear the application.

Footnotes

1. 1R. v. Savoury (2005), 2005 25884 (ON CA), 200 C.C.C. (3d) 94, at para. 22 (Ont. C.A.) (“Savoury”)
2. 2R. v. Suzack (2000), 2000 5630 (ON CA), 141 C.C.C. (3d) 449, at para. 87.
3. 3Savoury, at para. 22.
4. 4R. v. Crawford, 1995 138 (SCC), [1995] 1 S.C.R. 858, at para. 31.
5. 5R. v. Last, 2009 SCC 45, 3 S.C.R. 146, at para. 18; R. v. Welsh, 2013 ONCA 190, 115 O.R. (3d) 81, at para. 169.
6. 6Savoury, at para 28.