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Criminal - Joint Trials. R. v. Beak
In R. v. Beak (Ont CA, 2025) the Ontario Court of Appeal dismissed a merged two-appellant murder appeal, here where "in addition to being guilty of sexual assault, the appellants were also guilty of first degree murder, pursuant to s. 231(5) of the Criminal Code".
The court considers that "in a trial with multiple accused, one accused does not have a right to know the position of his co-accused in advance of putting on his own defence":(3) The trial judge did not err in declining to rule on whether Mr. Beak could adduce evidence from two jailhouse informants until such time as it was clear whether Mr. Beak intended to rely on the evidence
[61] Near the end of the Crown’s case, counsel for Mr. Murillo learned that Mr. Beak was considering calling evidence from two jailhouse informants who alleged that Mr. Murillo had admitted to his involvement in the killing of Ms. Estrada. It was anticipated that the defendants would put forward antagonistic defences. Mr. Murillo therefore brought an application for an order excluding the evidence of the jailhouse informants. The trial judge found that although the evidence of the jailhouse informants was potentially admissible, it was premature to hold a voir dire on the issue until such time as Mr. Beak decided that he actually wished to call that evidence. The trial judge ruled that such voir dire was not going to occur prior to Mr. Murillo entering upon his defence.
[62] Mr. Murillo argues that this failure to rule on the matter infringed his right to full answer and defence since it forced him to commence his defence without knowing the case he would be required to meet.[3] This, in turn, gave him no option other than to testify in order to provide an explanation for the anticipated inculpatory evidence of the jailhouse informants.
[63] The short answer to Mr. Murillo’s objection is that in a trial with multiple accused, one accused does not have a right to know the position of his co-accused in advance of putting on his own defence: R. v. Sandham (2009), 2009 CanLII 59685 (ON SC), 248 C.C.C. (3d) 392 (Ont. S.C.), at para. 25. Thus, while the ordering of the names on an indictment undoubtedly entails tactical advantages and disadvantages to each of the accused (including the order in which an accused will be called upon to put forth a defence), such tactical advantages and disadvantages are inherent in the adversarial process and do not render the trial unfair: R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.), at paras. 61-63. . R. v. Pan
In R. v. Pan (Ont CA, 2023) the Court of Appeal comments on the greater range of submissions [para 88] and evidence [para 131] that counsel for a co-accused has in a joint trial:[88] I begin with the basic principle that counsel for a co-accused in joint trials has more latitude, than does the prosecution, to make submissions that may be prejudicial to another accused. The prosecutor is more constrained: R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 128 O.A.C. 140 (C.A.), at para. 111.
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[131] While the prosecution is prohibited from leading propensity evidence against an accused, one accused may be allowed to lead propensity evidence against a co-accused in a joint trial: R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330 at paras. 65-68, leave to appeal refused, [2016] S.C.C.A. No. 514; R. v. Marks (2000), 2000 CanLII 4096 (ON CA), 48 O.R. (3d) 161, 145 C.C.C. (3d) 569 (Ont. C.A.) at para. 17.
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