Joinder and Severance

Today's Supreme Court of Canada decision in R. v. Last, 2009 SCC 45 deals with jonder and severance.  A brief summary follows:

 

The accused was charged in one indictment with counts related to two sexual assaults and breaches of undertakings.  Both assaults occurred in the same city, approximately one month apart.  S.M. testified that, after attending a night club with the accused, she went to his home in order to call a taxi.  She testified that  once inside the accused's home, he held her at gunpoint, choked her and repeatedly sexually assaulted her. M.A. testified that the accused accompanied a mutual friend to her apartment.  After the friend left, the accused struck her across the forehead with a mug and choked her into unconsciousness.  She was sexually assaulted with an object while unconscious.  The accused applied to sever the counts in order to be tried separately in  respect to each sexual assault.  The trial judge denied the  application.  He found that there was a nexus in time and place but observed that he was "not persuaded that, at trial, the question of prejudice will be a significant factor at all" since "a modern jury should be able to handle the instructions given by [him] to avoid any meaningful possibility of prejudice".  He did not put much weight on a statement by defence counsel that the accused might wish to testify on counts related to one incident but not the other.  He held that the case was not complex, and that the possibility of inconsistent verdicts did "not loom large".  This led him to conclude that the interests of justice did not require severance in this case.  At trial, the accused was convicted on all charges and a majority of the Court of Appeal upheld the convictions.

 

The Court held the appeal should be allowed.  The convictions should be set aside.  The matter should be remitted to the Superior Court and the counts related to each complainant should be tried separately.

 

Section 591 of the Criminal Code, which governs the joinder of counts in an indictment, except for murder, places no restrictions on the number of counts that can be tried together on a single indictment.  However, s. 591(3)(a) permits a court to order that the accused be tried separately on one or more of the counts where it is satisfied that the interests of justice so require.  There are two grounds for intervention:  unjudicial severance ruling or a ruling that result in an injustice.  An inquiry into whether a judge acted unjudicially examines the circumstances prevailing at the time the severance ruling was made, while a review of whether the ruling resulted in an injustice will usually scrutinize the unfolding of the trial and of the verdicts.  When deciding whether to sever counts, courts balance the risk of prejudice to the accused and the public's interest in a single trial.  Factors that may be weighed when deciding whether or not to sever include prejudice to the accused, the legal and factual nexus between the counts, the complexity of the evidence, whether the accused intends to testify on one count but not another, the possibility of inconsistent verdicts, the desire to avoid a multiplicity of proceedings, the use of similar fact evidence at trial, the length of the trial having regard to the evidence to be called, the potential prejudice to the accused with respect to the right to be tried within a reasonable time and the existence of antagonistic defences as between co‑accused persons.

 

In this case, the trial judge failed  to conduct a proper balancing of the relevant factors and made an unreasonable decision in denying the application for severance.  All the factors must be considered and weighed cumulatively and most of them militated in favour of separate trials.  Although the accused was likely to testify in respect to both assaults, the risk of prejudice to the accused in having a joint trial was significant because of the dangers of credibility cross‑pollination and prohibited propensity reasoning.  Furthermore, there were no compelling countervailing reasons for having a joint trial.  This case did not pose a risk of inconsistent verdicts, nor any substantial overlap in witness testimony or other evidence.  The nexus of time and place between the counts did not explain why it was necessary, desirable or convenient to try the cases together.  A joint trial did not serve any truth‑seeking interest and brought few if any benefits to the administration of justice.  Considering the unlikelihood of a successful similar fact application, the gains in judicial economy usually achieved from avoiding multiple proceedings were absent in this case.  Although a limiting instruction to the jury  in an appropriate case can limit the risk of prejudice to the accused, courts should resort to limiting instructions only where sufficient countervailing factors provide a rationale for a joint trial.  The significant risk of prejudice to the accused clearly outweighed any benefits to the administration of justice in trying the counts together.  [41] [44‑45]  [47]

 

This is not a case where the curative proviso should be applied.  The Crown has not discharged its burden that despite the error of law, no substantial wrong or miscarriage of justice occurred.