Defence Counsel brought forth a severance application under Section 591(3)(b) of the Criminal Code. The accused, and the co-accused were charged for first-degree murder. The primary argument that Defence Counsel advanced was that if the trials were not severed, then their client's right to be tried within a reasonable period of time would be infringed. The severance application was rejected.
R. v. [Redacted]
Ontario Superior Court of Justice
Heard: January 5, 2021 by Zoom conference.
Judgment: January 28, 2021.
Court File No.: [Redacted]
 O.J. No. [Redacted] | 2021 ONSC [Redacted]
Between Her Majesty the Queen, Respondent, and [Redacted], Applicant, and [Redacted], Co-accused
[Redacted], for the Respondent Crown.
[Redacted] for the Applicant.
[Redacted] for co-accused [Redacted].
PUBLICATION IS BANNED PURSUANT TO S. 517(1) OF THE CRIMINAL CODE WITH RESPECT TO THE EVIDENCE OF THE ALLEGED OFFENCE AND ITS DETAILS, IDENTIFYING INFORMATION ABOUT THE DEFENDANT AND DETAILS OF HIS PERSONAL CIRCUMSTANCES
RULING ON SEVERANCE APPLICATION
- The Applicant, [Redacted], charged with the first degree murder of [Redacted] together with co-accused [Redacted], applies for severance under Section 591(3)(b) of the Criminal Code. His arguments are that the interests of justice require a separate trial for him because: 1. Counsel for [Redacted] is not available for trial until November 2021, six months past [Redacted]â€™s Jordan net-delay date. If [Redacted] is not severed and tried in May or June, 2021 as he requests, his right to a trial without unreasonable delay guaranteed by Section 11(b) of the Charter will be violated; 2. The evidence against him is much weaker than against [Redacted]; and 3. The Applicant desires to call [Redacted] as a witness at trial which of course he cannot do unless severance is permitted.
- At the hearing, the Applicant withdrew the last argument and put no significant reliance on the second argument. The real issue, as joined by the Crown, was based on Section 11(b).
THE IMPORTANCE OF JOINT TRIALS
- Severance must be decided in the context of the desirability of joint trials for joint accused. An abundance of authority going back many years powerfully supports the proposition that where there is substantial evidence of common intention and purpose in the alleged commission of a crime, accused should be tried together. For example, Justice Fish wrote in R. v. Chow, 2005 SCC 24,  1 S.C.R. 384 (S.C.C.):
47. It is well established that separate trials for alleged co-conspirators are the exception, not the rule. In Crawford, which I mentioned earlier, Sopinka J. referred to the â€œuniform stream of authority in this country in favour of joint trialsâ€ (para. 19). Speaking for eight members of the Court, he set out compelling policy reasons for joint trials for co-conspirators despite the inevitable â€œdouble bindâ€ that results:
There existâ€¦strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly. The policy reasons apply with equal or greater force when each accused blames the other or others, a situation which is graphically labelled a â€œcut-throat defenceâ€. Separate trials in these situations create a risk of inconsistent verdicts. The policy against separate trials is summarized by Elliott, supra, at p. 17, as follows:
There is a dilemma here which could only be avoided by separate trials. But separate trials will not be countenanced because, quite apart from the extra cost and delay involved, it is undeniable that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion. If each alleged participant is tried separately, there are obvious and severe difficulties in arranging for this to happen without granting one of them immunity. In view of this, in all but exceptional cases, joint trials will be resorted to, despite the double bind inevitably involved.
Although the trial judge has a discretion to order separate trials, that discretion must be exercised on the basis of principles of law which include the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused. [Paras. 30-31, emphasis added.]
48. In Torbiak, the Ontario Court of Appeal likewise noted, at p. 199, the â€œwell established [rule] that ... where the essence of the case is that the accused were acting in concert, they should be jointly indicted and tried, and an appellate Court will not interfere with the discretion of the trial Judge unless he has failed to exercise it judicially or his decision has caused a miscarriage of justiceâ€.
(All Emphasis in the original)
- Also see R. c. L. (S.J.), 2009 SCC 14,  1 S.C.R. 426 (S.C.C.) at paras. 49-51; and R. v. Phillips, 1983 CanLII 161 (SCC),  2 S.C.R. 161,  S.C.J. No. 69 (S.C.C.) at para. 11.
- In a trial of the most serious charge in the Criminal Code, the interest in a joint trial is at its zenith. In this case, the deceased was shot dead in his apartment in front of his mother. She testified that there were two men. They kicked down the front door to the apartment. There was forensic evidence connecting both accused to the murder. There was also video evidence just before the shooting from a parking lot near the apartment where the murder took place depicting two individuals. Evidence was led at the preliminary hearing that these were the two accused men. After the murder, the men are seen again on the parking lot video. As well, [Redacted] allegedly admitted to involvement to two individuals after the fact.
- It is true, and was accepted by the Crown, that the evidence against [Redacted] is stronger than that against [Redacted]. [Redacted] challenged his committal to trial by way of certiorari but Justice [Redacted] dismissed the application: R. v. [Redacted. The imbalance in the strength of the case against the two accused is not, in my view, so pronounced that it contributes in a measurable way towards an order for severance.
- The Applicant offered to conduct a judge alone trial in order to hasten his trial but the Crown has refused. The Crown wants a joint trial. That is the Crownâ€™s right under the Criminal Code. [Redacted] will not agree, as is his right, to a judge alone trial. I do not view these machinations as being a major component of this application.
- In sum, this is quintessentially a joint intention, joint commission murder as alleged by the Crown and supported by a prima facie case against both accused. If severance is granted, the prospect of inconsistent verdicts and an inferior truth finding process loom large. Of decidedly secondary importance, the extra resources and inconvenience of separate trials on an already strapped Brampton trial list also weigh against severance.
SHOULD [REDACTED]â€™S RIGHT TO BE TRIED IN A REASONABLE TIME UNDER SECTION 11(B) OF THE CHARTER DISPLACE THE GENERAL RULE OF JOINT TRIALS?
- The Crownâ€™s right to a joint trial must be balanced against the jeopardy to the Applicantâ€™s Section 11(b) right. In my view, the Section 11(b) counterweight may be reduced by three factors: i. In the Section 11(b) analysis, some degree of accommodation is necessary to give weight to the strong preference for joint trials. The Supreme Court and the Ontario Court of Appeal have held that on the grounds of complexity, multi-accused trials may justify a departure from the Jordan ceiling; ii. The effect of the pandemic on trial delays leads to the conclusion that the net-delay number arrived at by the Applicant is likely incorrect; and iii. The time required for the Applicantâ€™s previous certiorari application could also reduce the net-delay figure, although this is only a minor factor.
- This severance application is not itself a Section 11(b) application. However, in evaluating the severance issue, I must look into the future to determine whether severance ought to be ordered to adequately protect the Applicantâ€™s Section 11(b) right. The difference between this and a full blown Section 11(b) application is that a more general approach ought to be taken. The purpose is to inform my exercise of discretion with respect to severance: R. v. Litchfield, 1993 CanLII 44 (SCC),  4 S.C.R. 333 (S.C.C.) at pp. 353-354. This lifts the Jordan birdâ€™s eye view to an even higher level of generality.
- On the first subject, the leading case in Ontario on how the demands of multi-accused trials impact on Section 11(b) is R. v. Gopie, 2017 ONCA 728, 356 C.C.C. (3d) 36 (Ont. C.A.), see particularly para. 113. In that case, Gillese J.A. held for the court that delay by one accused cannot simply be attributed to the other. That has changed from the pre-Jordan delay jurisprudence under the Askov\Morin regime. In those days, delay resulting from multi-accused trials was usually characterized as neutral delay: R. v. Whylie, (2006), 2006 CanLII 9037 (ON CA), 207 C.C.C. (3d) 97 (Ont. C.A.) at para. 24; R. v. G. (L.), 2007 ONCA 654, 228 C.C.C. (3d) 194 (Ont. C.A.), at para. 63. There was still a balancing of interests required and a multi-accused trial did not give the Crown carte blanche with respect to delay: Gopie at paras. 127-142.
- Now, under the new analysis put in place by R. v. Jordan, 2016 SCC 27,  1 S.C.R. 631 (S.C.C.), â€œexceptional circumstancesâ€-- discrete events or complexity of the case--can weigh against delay. It was explicit in Jordan at para. 77 and was followed in Gopie, at paras. 169-176 that multi-accused trials increase the complexity of a case. The majority in Jordan said, â€œProceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.â€ Also see R. v. Jurkus, 2018 ONCA 489,  O.J. No. 2899 (Ont. C,A.) at paras. 66-68.
- This only makes sense. A multiple accused trial will almost inevitably require extra time to schedule and to conduct. The situation in the instant case of one lawyer being available for a proposed trial date but not the other is common. To say that in every case, the 30 month delay limit from Jordan must inevitably pre-empt the powerful public interest in joint trials would be unsound. It was a factor under the old jurisprudence; it is also a factor under the new jurisprudence. This simply recognizes the practical reality and is not indicative of the complacency towards delay criticized in Jordan. As Justice Fairburn (as she then was) said in R. v. Ny, 2016 ONSC 8031, 343 C.C.C. (3d) 512 (Ont. S.C.J.) at para. 47 (approved in Gopie at para. 170), â€œProvided it is in the interests of justice to proceed jointly, delay above the ceiling may reflect the realities of life in a joint trial and transform an otherwise unreasonable delay into a reasonable one.â€
- The extra time allocated for complexity based on a multiple accused trial is not unlimited. The delay attributed to complexity of the case and a multiple accused prosecution must be justified: Gopie at para. 171. At some point, delays attributable to a multi-accused trial may well have to yield to protect Section 11(b).
- In this case, I do not think that a six month delay over the 30 month Jordan deadline is inordinate when viewed against the strong public interest in trying these two men together. The case most heavily relied upon by the Applicant, R. v. Kumar, 2020 ONSC 694,  O.J. No. 446 (Ont.S.C.J.), was a situation in which a multi-accused trial date had been set with the knowledge that counsel sought to be retained by the Applicant would not be available. If the trial were forced to go ahead with all accused, the Applicant would be deprived of his right to counsel of choice. This ought not to occur unless there are truly exceptional circumstances: R. v. McCallen, 1999 CanLII 3685 (ON CA),  O.J. No. 202, 131 C.C.C. (3d) 518, 22 C.R. (5th) 103 (Ont. C.A.) at paras. 36-38. The Applicant was severed to preserve his right to counsel of choice. That is quite a different scenario than the issue in this case.
- There have been several pre-Jordan cases in which the delay in a multi-accused trial has led to stays for Section 11(b) violations: R. v. Vassell 2016 SCC 26,  1 S.C.R. 625 (S.C.C.); R. v. Topol, 2008 ONCA 113,  O.J. No. 535 (Ont.C.A.). In Vassell, decided just before Jordan was released, the collective interests of the six other co-accused were given precedence over Vassellâ€™s interests. He ended up waiting three years for a three day trial. Justice Moldaver held:
6. In many cases, delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial. But here, it was clear from the outset that the delay caused by the various co-accused not only prevented the Crownâ€™s case from moving forward, it also prevented Mr. Vassell from proceeding expeditiously, as he wanted.
- The Applicant was not proactive in the same sense as Vassellâ€”a major factor in the decision--nor are the Applicantâ€™s interests being completely subjugated to [Redacted]â€™s as were Vassellâ€™s to his co-accused. The Applicantâ€™s willingness to go ahead with a judge alone trial is laudable but in light of the position of [Redacted], is more a tactical gesture than anything else. In Topol, the key reason for the stay of proceedings based on unreasonable delay was again the Crownâ€™s total solicitude towards the interests of the three other accused, blissfully ignoring Topolâ€™s rights. In this case, the Crown has done what they could to balance there strong preference for a joint trial against the rights of the accused.
- The cases of Topol and Vassell present unique fact situations not replicated in this case. They stand as warnings to trial judges and Crowns not to take trial delays of co-accused for granted simply because trials involve multiple accused. But these cases and others like them do not fundamentally alter my view of the Applicantâ€™s Section 11(b) rights if the trial is held in November, 2021.
- On the second issue, the impact of the pandemic, the Applicant puts the gross delay here at 37 months up to the November 2021 trial date and agrees that one month should be subtracted due to his own previous unavailability, leaving 36 months of net delay. He does not agree that some delay ought to be attributed to the pandemic. I reject this submission. The pandemic is obviously an exceptional discrete event within the Jordan rubric. If a once in a century pandemic with the impact we have seen upon every aspect of human life is not an exceptional circumstance, then what is? Any contrary position is unreasonable: see R. v. Simmons 2020 ONSC 7209 (S.C.J.) at paras. 68-77.
- Was the pandemic responsible for at least a substantial part of the delay in this case? On a full Section 11(b) application, the Crown will no doubt present detailed statistics and information outlining the impact of the pandemic on the trial list. For the purpose of this application, I can rely on my own ears and eyes: R. v. Morgan, 2020 ONCA 279 (CanLII),  O.J. No. 1978 (Ont. C.A.) at para. 8. There have been very few jury trials for about ten months now as a result of binding directives and local initiatives. Jury trials are currently suspended until at least May 3, 2021. The sparsity of jury trials over the last year is bound to have impacted the delay in this case to some degree. I need not assess the precise impact nor can I do so on the record before me. But it is likely that it has been significant. In exercising my discretion on the severance question, the impact of the pandemic plays a substantial part.
- Lastly, it is not disputed that the defence should bear the delay attributable to its application for certiorari to quash the committal to trial: see Jordan at paras. 60-67; R. v. Daponte, 2021 ONCA 14 (Ont.C.A.) at paras. 19-23. The Applicantâ€™s position is that the time required for the hearing of the certiorari had no actual impact on the movement of this case. At the time, it had just come into the Superior Court following committal and time was required in any case for judicial pre-trials and the like.
- I do not intend to delve into the Applicantâ€™s submissions in this regard. This third factor is for that reason, only a minor one. However, in exercising my discretion to refuse severance, the potential subtraction of the several month period attributable to the certiorari application carries some weight, although quite minimal.
- In conclusion, I do not believe severance is in the interests of justice when the strong preference for a joint trial is taken into account. The Jordan ceiling is pushed upwards by this multi-accused trial. The impact of the pandemic on jury trials, including upon this trial in particular, is also significant. The six month delay above the Jordan 30 month threshold, while unfortunate, is justifiable.
- The application for severance is dismissed.