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Criminal - Severance Between Defendants. R. v. Jaser
In R. v. Jaser (Ont CA, 2024) the Ontario Court of Appeal dismissed a terrorism-related criminal appeal. Here the court reviews the law of severing trials between joint defendants:(a) The legal framework for severance
[153] The power of a trial judge to order the severance of accused persons (or counts on an information or indictment) is found in s. 591(3) of the Criminal Code, which provides: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. [Emphasis added.] [154] As with many procedural decision points in a criminal trial, the critical question is whether the “interests of justice” require severance. In R. v. Savoury (2005), 2005 CanLII 25884 (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.), this court held, at para. 22:The interests of justice encompass those of the accused, the co-accused, and the community as represented by the prosecution. The trial judge must weigh these sometimes competing interests and will direct severance only if the accused seeking severance satisfies the trial judge that severance is required. See also R. v. Atwima, 2022 ONCA 268, 412 C.C.C. (3d) 392, at para. 117; R. v. Moore, 2020 ONCA 827, 153 O.R. (3d) 698, at para. 10.
[155] As noted above, the trial judge recognized the strong presumption that accused persons charged with the same offences be tried together. Separate trials involve greater cost and delay. Moreover, a joint trial enhances the search for the truth and avoids the possibility of inconsistent verdicts, especially where the evidence against each accused person is the same: see Crawford, at para. 30; Savoury, at para. 25.
[156] This rule is applied with even greater force where the accused persons are alleged to have acted in concert (see e.g., Savoury, at para. 22) or, as here, they are alleged to have conspired with each other. In R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384, Fish J. stated the rule, at para. 10: “Separate trials for those who are alleged to have conspired or to have committed a crime in concert remain the exception and not the rule. In principle, severance will only be granted where a joint trial will work an injustice to the accused”. See also Sarrazin, at para. 59.
[157] Over the years, the courts have recognized certain factors that are helpful in informing the decision to grant or refuse severance. As noted above, s. 591(3) of the Criminal Code addresses both the severance of multiple counts against one accused (s. 591(3)(a)) and the severance of co-accused (s. 591(3)(b)). There is a certain degree of cross-pollination in the jurisprudence, whereby severance-of-count cases draw upon severance-of-accused cases, and vice versa. The relevant considerations are not necessarily the same. Severance of accused cases tend to be more complicated because the interests of a co-accused must be taken into account – not just the interests of the accused making the application.
[158] With all of this in mind, the following factors (and perhaps others) are relevant to cases in which the severance of accused persons is sought:. the general prejudice to the accused seeking severance, and to the co-accused
. the extent to which the evidence against both or all accused persons is the same
. the risk of prejudice from the admission of evidence that relates to a single co-accused
. the possibility of inconsistent verdicts
. that severance will compromise the search for the truth in terms of depriving one or more triers of fact of relevant evidence
. the time and expense involved in ordering multiple trials
. the potential prejudice to the accused in terms of the right to be tried within a reasonable time
. the existence of antagonistic defences as between the co-accused
. that one co-accused wishes to call another co-accused as a witness See R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 18; R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 29; and R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 73.
[159] A trial judge’s decision to grant or refuse severance is entitled to deference on appeal. As the Supreme Court of Canada held in R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, at p. 354, the severance decision “requires the exercise of a great deal of discretion” on the part of the trial judge, and “an appellate court should not interfere with the issuing judge’s exercise of discretion unless it is shown that the issuing judge acted unjudicially or that the ruling resulted in an injustice” (emphasis added). See also Atwima, at para. 118.
[160] In Last (a case involving the severance of counts), Deschamps J. explained the two different points of reference in the Litchfield approach to appellate review. The question of whether the trial judge acted unjudicially engages an inquiry into the circumstances that prevailed at the time of the severance application; whether the ruling resulted in an injustice, on the other hand, requires an examination of the impact of that ruling on the entire trial as it unfolded: see Last, at para. 15, citing R. v. Rose (1997), 1997 CanLII 2231 (ON CA), 100 O.A.C. 67 (C.A.), at para. 17.
[161] Returning to Savoury, at para. 26, the court elaborated on the standard of review, explaining when a judge has acted “unjudicially”:This court will interfere with the exercise of that discretion where the trial judge had failed to consider the relevant principles, or has considered an irrelevant principle. If the trial judge has erred in principle, it falls to this court to decide, according to the proper principles, whether severance should have been granted. Even if a trial judge has considered the relevant principles, this court will review the trial judge's exercise of her discretion against a reasonableness standard. [Emphasis added.]
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