R.C. MILLS SUPREME COURT OF NOVA SCOTIA Citation: R. v. Chan, 2011 NSSC 455 Date: 20110928 Docket: CR. No. 334922 Registry: Halifax Between: Her Majesty the Queen -and- Joseph Endelle Chan Decision Judge: The Honourable Justice Robert W. Wright Heard: September 7, 2011 at Halifax, Nova Scotia Oral Decision: September 28, 2011 Written Decision Released: December 7, 2011 Counsel: Crown Counsel Chris Morris Defence Counsel Don Murray Wright, J., (Orally) [1] The accused is charged with 21 counts under an indictment dated September 1, 2010 consisting of one count of attempted murder, several charges pertaining to the unlawful possession and use of a firearm, and a number of status offences based on a pre-existing firearm prohibition order. The charges relate to events which occurred on April 8 and April 14, 2010 respectively. [2] This application is brought on behalf of the accused pursuant to s.591 of the Criminal code, the relevant sections of which read as follows: s. 591(1) Subject to section 589, any number of counts for any number of offences may be joined in the same indictment, but the counts shall be distinguished in the manner shown in Form 4. 591(3) 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. [3] The accused seeks severance of the 21 counts in the indictment on two bases which, if granted, would require three separate trials in all. The first proposed basis is the severance of the counts pertaining to the April 8th events from those pertaining to the April 14th events. The second basis for the proposed severance is to separate for trial all of the so-called status offences based on pre-existing firearm prohibition order (pertaining to the events of both April 8th and April 14th). [4] The factual background underlying these charges is set out in the voir dire decision being released today on the admissibility of the accused’s statement which was crafted broadly enough to serve as factual summary for this application as well (see 2011 NSSC 350 (CanLII)). It is therefore incorporated by reference in this decision. [5] The leading case providing guidance to trial judges hearing severance applications is R. v. Last, 2009 SCC 45 (CanLII). The Supreme Court of Canada stated at the outset of that decision that the Crown enjoys large discretion in deciding to include more than one count in an indictment and that on an application to sever multi-count indictment, the overarching criteria are the interests of justice. It is also clear from that decision that the burden rests upon the accused to persuade the court on balance of probabilities that severance is in the interests of justice. [6] The decision in Last further sets out concise summary of the legal principles to be applied when deciding severance application. That summary reads as follows (at paras. 16-18): 16. The ultimate question faced by trial judge in deciding whether to grant 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 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. 17. 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 reasonable balance is struck between the risk of prejudice to the accused and the public interest in single trial. It is important to recall that the interests of justice often call for joint trial. Litchfield, where the Crown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example. Severance can impair not only efficiency but the truth-seeking function of the trial. 18. The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in particular case, avoiding an injustice. Factors courts rightly use 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 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 reasonable time; and the existence of antagonistic defences as between co-accused persons [7] Defence counsel has predicated his submissions on the proposition that the Crown has combined all the counts in one indictment to gain two strategic advantages, namely, to improve its evidentiary position because of the unproven connection of possession of the gun on both days in question, and also to be able to cross-examine the accused on the events of April 8th if he should decide he wishes to testify on the events of April 14th. Defence counsel argues that this strategy works unfairly to the accused, necessitating an evaluation of the relevant factors set out in Last. [8] Not all of those factors will apply, of course, in every case depending on their individual facts. Nor is any one particular factor to be determinative of the outcome of the application. Rather, the court must engage in weighing exercise of all the relevant factors in deciding whether or not severance is required in the interests of justice. [9] In the present case, defence counsel argues that there are three particular factors of importance that militate in favour of severance. They are: (a) the absence of true nexus between the counts; (b) the complexity of the evidence and the length of the trial having regard to the evidence to be called; and (c) the potential of the accused deciding to testify on one set of counts (i.e., those pertaining to the events of April 14th) but not the others (i.e., those pertaining to the events of April 8th). [10] As to the first of these factors, defence counsel portrays the events of April 8th and 14th as two separate transactions having little legal or factual nexus. It is argued that the issues are different (identity on the former, and knowledge and control of the gun on the latter) and that there is no common evidence. The only possible link conceded is the firearm which assumes an unproven connection of possession of the gun on both days. [11] The Crown, on the other hand, views the two events as very much related. The court has been made aware that the Crown has in the wings ballistics report containing expert opinion evidence that match has been made between the gun used in the April 8th shooting and that found by the arresting police officers on April 14th. The Crown sees both temporal and continuity nexus between these two events from which the court may draw inferences as may be appropriate. The Crown also points out that the videotaped statement to police (which the court has since decided to be admissible) is common piece of evidence to both events. [12] What the court will be required to decide in this case, on the requisite standard of proof beyond reasonable doubt, is whether the accused was in legal possession of the gun when it was found on April 14th and whether it was the accused who fired that gun on April 8th. It is acknowledged by defence counsel that even if these two sets charges were severed, evidence that the gun was recovered near the spot where the accused was arrested would be admissible on prosecution of April 8th events if it supported an inference that the accused was in possession of that firearm on April 14th. If found guilty of possession in relation to that date, certainly the evidence would be admissible. If the accused was found not guilty of possession of the firearm on April 14th, defence counsel says that the Crown would then not be able to rely upon the evidence of proximity on April 14th to support the inference of its use on April 8th. [13] Defence counsel goes on to argue that on prosecution of the April 14th charges, whatever use was made of the firearm on April 8th would not touch on who might have had knowledge and control of it on April 14th. He contends that the charges from April 14th should be tried first to test the accused’s connection to the gun before it can be used to support any inferences in respect of the charges from the shooting on April 8th. [14] recognize that just because multiple offences are committed close in time, or just because offences involve behaviour that could be admissible in proof of some issue at the trial of another offence, does not necessarily justify having joinder of all counts to be heard at the same time. As noted in Last (at para. 16) above quoted, the ultimate question faced by trial judge in deciding whether to grant severance application is whether severance is required in the interests of justice. The interests of justice encompass the accused’s right to be tried on the evidence admissible against him. [15] I am not persuaded that the Crown should be limited in the presentation of its evidence through a severance of counts because of the tenuous nexus between the two events. It is to be remembered that the mode of trial selected here is judge alone which negates the spectre of improper inferences being drawn, were this case to be heard by a jury. Although it is recognized that having all counts heard together does assist the evidentiary position of the Crown, in my view it does not do so in prejudicial way, in the legal sense, to the accused’s right to fair trial. [16] As to the second factor, this case has been set down for trial for period of 10 days. It is anticipated by defence counsel that if the counts were severed as proposed, no extra court time would be required because the trials pertaining to the events of April 8th and 14th respectively could be conducted back-to-back in the current time slot. In his submission, there would be no injustice in requiring the Crown to prove the April 14th firearm possession charges first, which would ensure that the Crown evidence to be presented on the April 8th charges is fair and legitimate. [17] Apart from the fact that it is generally the Crown’s place to decide the order of the prosecutions, do not share the optimism that severed trials could be completed within the 10 day allotment. In my view, it would be more efficient and cost effective to have all the counts tried together and further delay would thereby be avoided while the accused is in custody. [18] It is the third factor relied on by the defence that gives more pause to the court. Defence counsel has explained the rationale for this argument by setting out reasons whereby the accused might want to testify with respect to the events of April 14th but not in respect of the events of April 8th. It is argued that it would be unjust for the accused to be placed in the position of wanting to testify with respect to the April 14th counts and thereby be exposed to cross-examination on the charges pertaining to April 8th. [19] The law on the application of this factor is set out in Last at paras. 25. In assessing the accused's testimonial intention on severance application the underlying concern is for the accused's ability to control his defence, and, more specifically, his right to decide whether or not to testify with respect to each of the counts unimpaired by inappropriate constraints. 26. Both the Crown and the defence submit that the accused's intention should be objectively justifiable. This requirement is, indeed, threshold. The accused's expression should have both subjective and an objective component. However, while formulaic expression of subjective intention is not sufficient in and of itself to discharge the accused's burden to have the counts severed, the trial judge should not substitute his or her own view for that of the accused and determine that the accused should testify or not. Rather, the trial judge must simply satisfy him- or herself that the circumstances objectively establish rationale for testifying on some counts but not others. The burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention. The information could consist of the type of potential defences open to the accused or the nature of his testimony: Cross, at p. 421. However, the accused is not bound by his stated intention; he remains free to control his defence, as the case unfolds, in manner he deems appropriate. 27. While an accused's provisional intention with respect to testifying is certainly consideration which should be given significant weight, it is but one factor to be balanced with all the others. An accused's stated and objectively justifiable intention to testify on some but not all counts is not necessarily determinative of severance application. It can be counterbalanced by other circumstances that the judge finds may prevent the accused from testifying, or be outweighed by factors that demonstrate that the interests of justice require joint trial. [20] In the present case the court has had the benefit of watching two hour videotaped interview of the accused conducted by the police in the early morning hours of April 15, 2010. In that interview, the accused adamantly disclaimed any association with the subject handgun whatsoever. He maintains that the gun was not his and that he had nothing to do with its possession or use either on April 8th or the 14th. [21] This disclaimer is indicative, in my view, that the accused’s decision whether to testify would more likely than not be the same in relation to both sets of counts. In the final analysis, conclude that although defence counsel has demonstrated that the prospect of the accused wanting to testify on one set of counts and not the other is objectively justifiable, the significance of that factor is lessened because of the likelihood that his testimonial intention will not differ between the two sets of counts (as was the situation in Last). [22] When that attenuated factor is balanced with all the others, including the interest in avoiding multiplicity of proceedings over potentially related events and the efficient use of judicial resources by having one trial, am drawn to the conclusion that the accused has not discharged the burden of persuasion that severance is required in the interests of justice. In my view, the accused’s fair trial rights will not be impinged by reason of all counts being tried together and it is on that platform that the truth seeking function of the court will be better served. [23] Likewise, decline to order severance of the status offences listed in the indictment. Defence counsel argues that proof of those offences requires evidence of the accused’s prior criminal activity which would be prejudicial to him and which the court need not know about. [24] If this were to be trial by jury, severance on that basis would be appropriate because of the risk of propensity reasoning by the trier of fact. There is no such risk of propensity reasoning in judge alone mode of trial and the court will not countenance otherwise. [25] For all of the foregoing reasons, this application for severance is dismissed on both the bases proposed.
The accused, who was charged with 21 counts under one indictment relating to events on two separate dates, applied to have the counts severed. First, on the basis of the dates of the occurrences and, secondly, to separate the so-called 'status offences' based on a pre-existing firearm prohibition order. It was argued the Crown had combined all the counts into one indictment to improve its evidentiary position with regard to the unproven connection of possession of the gun on the two separate dates and to be able to cross-examine the accused on the events of both days should he choose to only testify on the events of one day. The Crown argued that expert evidence showing a match between the gun used in the shooting on the first date and that found by the arresting officers on the second date showed a temporal and continuity nexus between the two events. The accused's  videotaped statement to the police was also a common piece of evidence to both dates. Application for severance dismissed. The most significant issue was the possibility of the accused being subject to cross-examination for events of both days if he chose to testify only concerning the events of one day but his position that he had no association with the gun and that it was not in his possession on either day indicated that his decision on whether to testify would most likely be the same in relation to both sets of counts and, given that there was no jury involved, there was no risk of improper inferences being drawn. The Crown should not be limited in the presentation of its evidence through a severance of counts because of the tenuous nexus between the two events.