Morton's Musings: Severance of counts appropriate when factual basis of charges unrelated

R. v. Jeanvenne, 2010 ONCA 706, released on line today, deals with the principles of severance. Specifically, where two factually unrelated charges are brought on the same indictment, there is a basis to sever the counts as being confusing and prejudicial. The evidence of one count might be taken, wrongly, as evidence of the other. The Court writes:

LAW AND ANALYSIS

The Severance Issue

General Principles

1. The Supreme Court of Canada's most recent clarification of the principles relating to the severance of counts in an indictment is found in R. v. Last, [2009] 3 S.C.R. 146. A trial judge has a broad discretion to sever under s. 591(3) of the Criminal Code where he or she is satisfied ''the interests of justice so require." Once the discretion is exercised, the judge's decision must be afforded considerable deference; an appellate court may only interfere where the judge has "acted unjudicially" or "the ruling resulted in an injustice." The onus lies on the accused who seeks the severance to persuade the court on the balance of probabilities that the interests of justice so require. See also, R. v. Arp, [1998] 3 S.C.R. 339, at para. 52; and R. v. Litchfield, [1993] 4 S.C.R. 333, at p. 352.
2. As the Court pointed out in Last, at paras. 15 and 21, the two grounds for intervention involve different inquiries. In determining whether the judge acted unjudicially, the court inquires into the circumstances prevailing at the time the ruling was made, and should only intervene if the judge erred on a question of law or principle, or made an unreasonable decision. In determining whether the ruling resulted in an injustice, the court looks at the entirety of how the trial and the verdicts unfolded. In this regard, as Charron I.A. said in R. v. Rose (1997), 100 O.A.C. 67, at para. 17:

It is necessary to consider the entire trial, including the potential prejudicial effect of the evidence, the closing addresses of counsel, the judge's instructions to the jury and any inference that may be drawn from the ultimate verdicts returned by the jury.

3. At paras. 16-17 of Last, the Court canvassed the overall considerations bearing upon the judge's exercise of discretion, as well as the factors to be considered:

The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in the interests of justice, as per s. 591(3) of the Code. The interests of justice encompass the accused's right to be tried on the evidence admissible against him, as well as society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count. [Emphasis added.]

Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed when deciding whether to sever or not. The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial. It is important to recall that the interests of justice often call for a joint trial. ...Severance can impair not only efficiency but the truth-seeking function of the trial.

4. Finally, the Court identified a non-exhaustive list of particular factors to be considered. These factors are not in dispute, and include:

* The general 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.

The Trial Judge's Decision

5. The trial judge rejected the appellant's motion to sever. In brief reasons, he said:

There is no similar fact linkage between the two events except of course that they have - it is suggested a common perpetrator. Defence must satisfy this Court on a balance of probabilities that severance is required in the interest of justice, which test is considered under the following points: the general prejudice, factual and legal nexus, undue complexity of the evidence, the possibility of inconsistent verdicts, the desire to avoid a multiplicity of proceedings.

As I indicated during the submissions, it seems to me that it's less compelling that severance be granted where the facts are not similar within the legal notion of similar fact evidence than when the converse exists, and this is the case before me. There is no element of inconsistent verdicts present, nor does it seem to me that there will be any unduly complicated evidence. The defence position seems to be that facing two charges of murder in itself creates an overwhelming prejudice to an accused person, which cannot be offset by jury instructions. I don't agree with that proposition. In addition to some other individual testimony, the thrust of the Crown's case emerges from the admissions allegedly made by Mr. Jeanvenne to two police undercover agents in the course of his involvement with the [...] purported illegal activities. Whether Mr. Jeanvenne's statements will be believed by the jury requires a consideration of the whole context within which they were made, together with of course all of the other evidence.

I'm satisfied that proper instructions can alleviate any concern for improper or impermissible reasoning on the part of the jury, or a misuse of the evidence on the two counts. And as such, at this juncture, I find that the defence has not met the onus. The severance application is dismissed. If and when it is known that Mr. Jeanvenne may wish to testify on one or the other of the counts that he faces in this indictment, then the question of severance may be revisited.

R. v. JeanVenne, (6 September 2005), Ottawa 03-G9319 (Ont. S.C.)

Analysis

6. In my view the trial judge erred on both grounds in failing to grant a severance in the circumstances of this case, but in particular on the ground that he acted unjudicially. His decision was "unreasonable" on a number of grounds. It also resulted in an injustice, in the circumstances.
7. First, his decision was based in a significant way on his mistaken view that the absence of similar fact evidence between the two murders militated against rather than in favour of the case for a severance. The trial judge made this observation both in his reasons and during the course of counsel's arguments respecting severance. In fact, however, the contrary is generally the case. Mr. Alvaro acknowledges on behalf of the Crown that the trial judge erred in his assessment of how the absence of similar fact evidence impacts upon an application for severance, but argues that the error did not taint the entirety of the judge's reasoning and was cured by the admittedly strong mid-trial and final instructions to the jury about the impermissibility of using bad character evidence for improper propensity reasoning.

Morton's Musings

Tuesday, October 26, 2010

Severance of counts appropriate when factual basis of charges unrelated

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