Ontario Superior Court of Justice

Between

Her Majesty the Queen

Respondent

and

[REDACTED] [REDACTED] and [REDACTED]

Applicants

M. Friedberg for the Applicant, [REDACTED]

C. Sweeney, for the Respondent

Released: November 21, 2008

Thorburn J.

RULING RE SEVERANCE APPLICATION

1. The Issue

[1] The Applicant, [REDACTED] seeks to sever one count of failure to comply with a

probation order and two counts of failure to comply with a prohibition order from the other

charges in this proceeding. The Crown opposes this request. On November 14, 2008, I advised

counsel that I would agree to have the above three counts severed from the other charges before

me on certain conditions. I agreed to provide my written reasons for granting defence counsel's

request at a later date. These are my reasons.

[2] The Applicant, [REDACTED] is facing charges of robbery, two counts of robbery with a

firearm, use of a firearm without reasonable justification or excuse with the intention to obtain

money, sexual assault with a firearm, failure to comply with probation order and two counts of

failure to comply with a prohibition order. He seeks to sever the charges of failure to comply

with the terms of probation order and two counts of failure to comply with a prohibition order

from the rest of the proceeding.

[3] Section 591(3) of the Criminal Code provides that, "the court may, where it is satisfied

that the interests of justice so require, order that the accused or defendant be tried separately on

one or more of the counts..."

[4] The parties agree that on an application for severance, the following factors should be

considered:

a) the factual and legal nexus between the counts;

b) prejudice to the Applicant;

c) the undue complexity of the evidence;

d) whether the Applicant wishes to testify on some counts but not others;

e) the possibility of inconsistent verdicts; and

f) the desire to avoid a multiplicity of proceedings.

(R. v. B(M.O.), 1998 Carswell B.C. 573, 123 C.C.C. (3d) 270 (B.C.C.A.)).

[5] The Applicant bears the burden of demonstrating on the balance of probabilities that the

interests of justice require a separate trial. (R. v. Arp (1998), 129 C.C.C. (3d) 321 (S.C.C.) at

para. 22.)

[6] The prohibition orders were issued on June 16, 2006. The events in question in this case

allegedly took place on October 25, 2006. On October 25, 2006, Mr. [REDACTED] was on probation

and subject to a prohibition order.

The Applicant's Position

[7] Counsel for Mr. [REDACTED] submits that Mr. [REDACTED] has the right to make full answer and

defence and the right to a fair trial. He says that by leading evidence regarding the outstanding

probation and prohibition orders, the jury will be made aware of part of the accused's prior

criminal record, including a conviction for possession of ammunition. Such evidence, he says,

would be highly prejudicial to a fair trial on the other charges.

[8] Notwithstanding any instructions to be provided to the jury, Mr. [REDACTED]'s counsel suggests

there is a risk the jury may use evidence of the Applicant's prior criminal record and possession

of ammunition to invoke propensity reasoning. This could lead them to the conclusion that there

was a real gun used in the alleged robbery and sexual assault or that Mr. [REDACTED] was the type of

person who would commit, inter alia, sexual assault and robbery with a weapon. Strong

direction to the jury might assist but severance of these three relatively minor charges in

comparison with the other charges, would serve to eliminate that risk.

[9] Mr. [REDACTED]'s counsel states that no undue delay or complexity would result from

severance of these more minor charges and there is little risk of inconsistent verdicts.

[10] The Notice of Application provides that Mr. [REDACTED], "Concedes a conviction on these

counts if there is a conviction on the substantive charges involving use of a firearm." He agrees

to be bound by all findings of fact made by the jury and agrees to introduce no new evidence in

the second proceeding. He will admit for the purpose of the second proceeding that there was a

valid prohibition order in place when the other offences to be heard by jury, allegedly took place

(that is, on or about October 25, 2006.) Since no additional evidence would be called at the

second proceeding, there would be little added complexity.

[11] Mr. [REDACTED]'s counsel asks that I remain seized of the three counts to be severed and that

the second proceeding take place before me, as judge alone, immediately after the jury verdict is

rendered. Mr. [REDACTED] agrees to specifically waive his right to a jury trial on the severed counts.

There would be minimal delay as the three outstanding charges would be dealt with immediately

after the trial by jury without any new evidence being tendered.

[12] Mr. [REDACTED]'s counsel suggests there is little risk of inconsistent verdicts as no new

evidence will be tendered at the second proceeding and the essential elements of the charges to

be brought before the jury are different from the essential elements of the counts sought to be

severed.

[13] Finally Mr. [REDACTED] agrees to waive his rights under section 11(b) of the Charter of Rights

and Freedoms and waives his right to testify at the second trial.

[14] Mr. [REDACTED] spoke directly to the court. He advised that he had had an opportunity to

consult with his counsel about these issues, he understood and agreed with all of the submissions

made by his counsel, and he agreed to abide by the conditions articulated by his counsel as set

out above.

The Crown's Position

[15] The Crown states that Mr. [REDACTED] has not satisfied the onus upon him to show, on the

balance of probabilities, that the interests of justice require severance.

[16] The Crown suggests that the prohibition orders, probation order and extracted portions of

the Applicant's criminal record are necessary evidence to be called to support the charges sought

to be severed. She states that there is a strong factual nexus among the counts.

Conclusion

[17] Based on the conditions Mr. [REDACTED] through his counsel and personally, has agreed to

abide by, I am satisfied that it is in the interests of justice that the two counts of breach of a

prohibition order and one count of breach of a probation order be severed from the other counts.

[18] While I agree with the Crown that there is a strong factual nexus and that the probation

order, prohibition order and extracted portions of the Applicant's criminal record are necessary

evidence to be called to support the charges sought to be severed, I believe prejudice could result

from disclosure of Mr. [REDACTED]'s prior criminal record and orders pertaining thereto, in the jury

trial. Moreover, I believe the risk of inconsistent verdicts is minimal. Together, this satisfies me

that severance is appropriate in this case and on the conditions set out above.