Court File and Parties

Court File No.: CR-16-40000470-0000

Date: 2025-11-06

Ontario Superior Court of Justice

Between:

His Majesty the King – and – Ravyn Colley and Joel Roberto

Counsel:

M. Sabat and L. Guzzo, for the Crown

W. Thompson, L. Morgan and D. Leiper, for Ms. Colley

Heard: 23 October 2025

S.A.Q. Akhtar J.

Factual Background and Overview

Introduction

[1] The applicant, Ravyn Colley and her common law partner, Joel Roberto, were tried for first degree murder of their four year old son, Jaelin. Ms. Colley was convicted of first degree murder whilst Mr. Roberto was found guilty of second degree murder.

[2] Both successfully appealed to the Court of Appeal for Ontario and a new trial is scheduled to commence in January 2026.

[3] The applicant applies for severance from Mr. Roberto arguing that a joint trial would result in significant prejudice and an unfair trial. Her argument focusses on the fact that she faces a count of first degree murder whilst her co-accused is being tried for second degree. The applicant says that this differential becomes problematic because the Crown maintains its position from the original trial: both accused planned and deliberated the murder of their son. The Crown opposes severance arguing that if any prejudice did exist, it would be eliminated through a limiting jury instruction.

[4] At the conclusion of argument, I informed the parties that the severance application would be dismissed with reasons to follow which I now produce.

Background Facts

The 911 Call

[5] At 2:09 a.m. on 13 October 2014 Joel Roberto called 911 to report that his four-year-old son, Jaelin, had fallen down a flight of stairs but was alive and breathing. After firefighters attended the scene, they were directed to Jaelin who was laying on his back on the floor in the family's living room.

[6] The firefighters began cardiopulmonary resuscitation to revive Jaelin but noted that his body was cold to the touch and that blood was pooling on his back. At 2:38 a.m., Jaelin was pronounced dead.

The Extent of Jaelin's Injuries

[7] When an autopsy was conducted, numerous injuries were found on Jaelin's body. These included facial bruising, significant blunt trauma to his eyes, cheeks, and other areas of his head. Additional blunt force injuries could be seen from Jaelin's neck to his thighs. He also had a swelling in his lower legs and feet, a fractured wrist, an ulcer inside his mouth along with a lacerated lip and other impact injuries on his legs. Jaelin had a fractured wrist and an inflamed ulcer inside his mouth.

[8] Finally, further examination revealed that Jaelin had a traumatic brain injury and was suffering from moderate to chronic malnutrition.

[9] The examining pathologist concluded that the immediate cause of death was the aspiration of gastric contents, and complicating blunt impact head trauma. The other significant condition contributing to death was malnutrition.

The Mobile Phone Videos

[10] Police discovered a video on Mr. Roberto's mobile phone taken at 1:18 am - 51 minutes before Mr. Roberto made the 911 call.

[11] The video, taken by Mr. Roberto, showed Jaelin seated on a couch in the family basement. The applicant could be seen holding up Jaelin's chin. The recording displayed a number of injuries to Jaelin's face and he appeared emaciated. There was vomit on his face and his clothing. He could also be seen clenching his hands into his fist and flexing his arms. A forensic pathologist and neuropathologist later described this movement as possible "neurological posturing": a description of involuntary activity caused by brain damage.

[12] On 13 October 2014, the applicant and Mr. Roberto were charged with failing to provide the necessaries of life. Three days later, police further charged both with first degree murder.

The First Trial

[13] The first trial commenced on 3 May 2017 and ended on 20 July 2017.

[14] When arrested, both accused had told the police that Jaelin had fallen down a flight of stairs thereby sustaining the injuries seen at the post mortem. Their positions changed at trial: both testified that the other had assaulted Jaelin on the night of his death.

[15] With respect to the allegations of malnutrition and starvation, both parties pleaded guilty to manslaughter. However, their accounts of culpability differed.

[16] Ms. Colley admitted responsibility for Jaelin's malnutrition due to inadequate caregiving. Ms. Colley attributed her inadequate caregiving to her ignorance of proper nutrition, her limited education and her fear of losing custody of Jaelin if his condition was revealed. Mr. Roberto's position was that Ms. Colley's lack of caregiving and abusive behaviour was the sole cause of Jaelin's death. His admission of manslaughter was based on his failure to sufficiently intervene to save Jaelin.

[17] Critically, as part of his defence, Mr. Roberto's counsel argued that the applicant had beaten Jaelin and intended to kill him. According to Mr. Roberto's counsel, the applicant was manipulating Mr. Roberto to conceal her own criminal conduct.

[18] The Crown advanced the position that both accused were guilty of first degree murder, having planned and deliberated Jaelin's murder by intentionally starving him over a period of time and eventually assaulting him prior to his death. The Crown suggested that their motivation was fuelled by Jaelin's persistent behavioural issues with both accused wanting him dead.

[19] On 20 July 2017, the jury returned its verdict finding the applicant guilty of first degree murder and Mr. Roberto guilty of second degree murder.

[20] As previously referenced, the applicant and Mr. Roberto successfully appealed. The Court of Appeal found that the trial judge's efforts to resolve matters led to their exclusion from their own trial contrary to s. 650(1) of the Criminal Code, R.S.C. 1985, c. C-46. As a result, a new trial was ordered: R. v. Colley, 2024 ONCA 524, 172 O.R. (3d) 433.

Positions of the Parties

[21] The applicant applies for severance from Mr. Roberto on the basis that, if tried together, the jury will improperly conclude that Ms. Colley is more culpable than Mr. Roberto because she is charged with a more serious offence even though the Crown is alleging the same conduct as her co-accused.

[22] The Crown opposes severance arguing that an allegation that one accused's culpability is greater than their co-accused does not, of itself, generate improper prejudicial thinking. Moreover, any risk of prejudicial reasoning would be eliminated by the appropriate jury instruction.

Legal Principles

Section 591(3) of the Criminal Code

[23] Section 591(3) of the Criminal Code provides that:

(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.

The Jurisprudence

[24] There is a long-standing presumption that where two or more accused are charged with offences arising out of the same events, the accused will be tried together. In R. v. Zvolensky, 2017 ONCA 273, 172 O.R. (3d) 433, at para. 247, Watt J.A. made the following comments about this rule:

The prima facie rule of the common law, sometimes characterized as a presumptive rule, is grounded in sound social policy reasons. These reasons have been adequately rehearsed elsewhere, including by my colleague, and are in no need of restatement here. However, what should not be forgotten about this common law rule is that it was not developed in a vacuum. Like other common law rules, it is the product of judicial experience in the trial of criminal cases. And that experience no doubt would have included commonplace joint trial events such as antagonistic or cut-throat defences, evidence of limited admissibility and differences in the nature and extent of the evidence inculpatory of various accused. Yet the prima facie rule of joint venture -- joint trial remains.

[25] In R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 16, the Supreme Court of Canada described the balancing exercise that the court conducts when determining whether severance is justified:

The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in the interests of justice, as per s. 591(3) of the Code. The interests of justice encompass the accused's right to be tried on the evidence admissible against him, as well as society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.

[26] The analysis of "interests of justice" does not equate with "the interests of the accused" but balances the accused's fair trial rights against society's interest that justice be done in a reasonably cost-effective manner: R. v. Moore, 2020 ONCA 827, 153 O.R. (3d) 698, at para. 11; R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 28. The accused bears the onus of persuading the court that severance is justified in the interests of justice.

[27] In Last, the Court, at para. 18, identified the following list of factors that govern the analysis on a severance application:

1. General prejudice to the accused
2. Legal and factual nexus between the counts sought to be severed
3. Complexity of the evidence
4. Whether the accused intends to testify on one count but not another
5. The possibility of inconsistent verdicts
6. Desire to avoid a multiplicity of proceedings
7. Use of similar fact evidence at trial
8. Length of trial having regard to the evidence to be called
9. The potential prejudice regarding the right to be tried within a reasonable time
10. The existence of antagonistic defence between co-accused

[28] See also: Jeanvenne, at para. 29; R. v. E.(L.), 94 C.C.C. (3d) 228, at p. 238; R. v. Cross, 112 C.C.C. (3d) 410, at p. 419; Last, at para. 44 and 47.

[29] The court made it clear that none of these factors on their own is dispositive of the issue of severance.

[30] There is a presumption that jointly charged accused should be tried together and that this presumption "applies with particular force where the co-accused are each alleging that the other is the guilty party": R. v. Suzack, 141 C.C.C. (3d) 449, at para. 87, leave to appeal refused, [2000] S.C.C.A. No. 583; R. v. Crawford, [1995] 1 S.C.R. 858, at para. 30. That principle has particular force in this case.

Should Severance Be Granted?

Is There Prejudice in a Joint Trial?

[31] The applicant, who bears the burden of persuasion, argues that the presumption of a joint trial may be rebutted because doing so would be an injustice to her. She points out that since the Crown did not appeal Mr. Roberto's acquittal of first degree murder, he will only face a count of second degree murder at the new trial as opposed to her count of first degree murder.

[32] The Crown has made it clear in this application that it will maintain its position from the original trial: both accused are guilty of planning and deliberation even though Mr. Roberto is only now charged with second degree murder. Ms. Colley says that Mr. Roberto took on the role of a "second prosecutor".

[33] The applicant says the fact that she is facing a more serious charge will undoubtedly affect the jury's assessment of the evidence. She claims that at the first trial, both were charged with the same count of first degree murder with the Crown advancing the same theory of planning and deliberation against both herself and Mr. Roberto. In those circumstances, the jury could fairly assess each accused's role in Jaelin's death. However, the applicant says at the second trial, the different charges will buttress Mr. Roberto's position that the applicant shoulders far greater responsibility for Jaelin's death.

[34] According to the applicant, the difference in charged counts will lead to an appearance, from the outset, that she is "more guilty" than Mr. Roberto. She cites cases such as R. v. Guimond, [1979] 1 S.C.R. 960 and R. v. Welsh, 2013 ONCA 190, 115 O.R. (3d) 81, as examples where the court found that if the evidence was substantially stronger against one accused than the other, the appropriate course of action would be to sever the accused.

[35] The difficulty with this argument is that the evidence in this case is the same against both accused, rather than the evidence against one accused being stronger than the other. The Crown submits that it will continue to allege that both parties planned and deliberated Jaelin's death and call its case accordingly. In Guimond, the court's focus on severance arose from an accused's statement that was largely exculpatory but implicated his co-accused. Admission of this evidence would have been significantly prejudicial. This is not that case. Admitting the same evidence against both accused in the current case would not be prejudicial.

[36] Like Welsh, this is not a case where there is a significant imbalance in the evidence. Indeed, the scenario in this case is not uncommon. As the court in Welsh pointed out, at para. 184:

The appellant tries to paint his situation as uniquely prejudiced. However, as Ms. Loubert pointed out in her submissions for the Crown, Welsh's situation is not unusual in cases of multiple accused where the accused are alleged to have played different roles. The fate of parties and principal offenders are almost inevitably intertwined. Trial judges deal with this problem by instructing the jury to deal with each accused separately and only consider the evidence admissible against the particular accused. In this case, the trial judge went further. As we have pointed out, he did not simply instruct the jury to consider the cases against each accused separately. In his charge to the jury, he dealt with each accused separately and isolated for the jury the evidence they could use to consider the case against the particular accused. We are satisfied that the joint trial of Welsh with his co-appellants did not result in an injustice.

[37] The decision in Welsh provides the solution to any problem that may arise from the difference in counts: the trial judge will instruct the jury to deal with each accused separately and instruct that they only consider the evidence that applies and is admissible against that particular accused. This safeguards against the possibility of misusing the differences in the counts, if there is any.

[38] Another example can be found in R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208. In Hamilton, the accused sought severance because the Crown was seeking to introduce judicially authorised interceptions, which were inadmissible against him but incriminated him in the murders that he was jointly charged with others. The court upheld the trial judge's dismissal of the severance application even though there was a slight risk of inconsistent verdicts. The court held that jury instructions would remove any danger that the jury would misuse the evidence.

[39] I would also add that the Crown must overcome a higher hurdle if they are to prove the first degree murder charge. The Crown will be forced to prove planning and deliberation beyond a reasonable doubt for the jury to convict the applicant on that charge. The trial judge will instruct the jury with respect to this higher burden that the applicant alone faces. The Crown has an easier task with the proof of second degree murder - the count that Mr. Roberto faces - as it does not need to establish the additional mens rea beyond a reasonable doubt.

[40] Nor does the "second prosecutor" argument hold much validity. Mr. Roberto, as an accused person facing one of the most serious charges in the Criminal Code, is entitled to make full answer and defence. Placing the blame on the applicant does not create prejudice in the sense that a jury would misuse the evidence but legitimately permits a jointly charged accused to defend himself by demonstrating that the evidence shows the applicant, and not Mr. Roberto, committed the offence.

[41] As the Court of Appeal for Ontario said in R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at paras. 88 and 89:

Each accused who participates in a joint trial is entitled to the constitutional protections inherent in the right to a fair trial. Among those protections is the right to be shielded from evidence that unfairly prejudices that accused. But joint trials are different than trials involving a single accused. And the right of every accused to a fair trial does not mean that those tried jointly are entitled to an exact copy of the trial they would receive if they were to be tried alone.

To balance the competing interests of co-accused in a joint trial, the authorities conclude that a carefully crafted jury instruction about the permitted and prohibited use of evidence of limited admissibility is the best way to achieve that balance. Absent alteration of the paradigm of trial by jury, constitutionally guaranteed in cases such as this, we proceed on the basis that juries accept and follow judicial instructions. [Citations omitted].

[42] In this case, the trial judge's instructions will ensure that there is no prejudice to Ms. Colley based on the different charges.

Factual Nexus

[43] The applicant rightly concedes there is clearly a factual and legal nexus between the counts involving the two accused. The Crown alleges that this was a joint enterprise. Severance would deprive the jury of evidence that is admissible against both accused and that shows the interrelation in their actions.

The Complexity of the Evidence

[44] This is a complex case which will require the calling of expert witnesses dealing with the injuries, and Jaelin's cause of death. At the first trial, the forensic pathologist, Dr. Kristopher Cunningham testified at length on these issues and it makes sense that one jury - not two - hears this evidence.

The Possibility of Inconsistent Verdicts and the "Cut Throat" Defence

[45] The courts have recognised that where co-accused point the finger at each other in a criminal case they should be tried together. In Suzack, at para. 88, the court made this point:

Separate trials where co-accused are blaming each other for the crime raise not only the danger of inconsistent verdicts, but also a real concern that the truth will not be discovered at either trial. It is axiomatic that the truth of an allegation is best tested through a process which requires the accuser to confront the accused with the allegation and gives the accused a chance to respond to the allegation. If co-accused who are blaming each other for a crime are allowed to do so in separate trials, neither jury will have the benefit of that process. If the accused are tried separately, it is highly unlikely that either jury will hear the complete story.

[46] Here, both parties will allege the other committed the offences and will advance a defence that necessarily implicates the other in the commission of the assault and ultimate murder of Jaelin.

The Search for the Truth

[47] I also agree with the Crown that the search for the truth will be fractured if severance is granted by removing the jury's assessment of the entire case and examining both parties role in the allegations. A joint trial would permit this assessment which, in my view, is essential.

The Length of the Trial and the Desire to Avoid a Multiplicity of Proceedings

[48] I have already commented on the complexity of the evidence. The original trial took over two months to complete. It would not serve justice or an overcrowded system for two trials of this length to take place.

Conclusion

[49] Although each of these factors are not to be considered on their own, their cumulative effect leads me to the conclusion that the interests of justice require a single trial for Ms. Colley and Mr. Roberto. Accordingly, the severance application is dismissed.

S.A.Q. Akhtar J.

Released: 6 November 2025