Les défenses traîtresses

R. c. Dufour, 2011 QCCS 6149 (CanLII)

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[52]           Les défenses traîtresses ont fait l'objet de nombreuses décisions en droit criminel canadien. À l'occasion de la conférence qu'il donnait dans le cadre d'un séminaire relatif aux procès devant jury en matière criminelle, monsieur le juge Douglas Rutherford écrivait ce qui suit :

« Cut-Throat Defences

A frequent reason for a request to sever co-accused charged jointly and to hold separate trials is that the defence of one or more co-accused will directly or indirectly tend to cast blame on or undermine the defence of the other[s]. The term 'cut-throat defences' is often used to describe such a case.

In his article Cut Throat Tactics: The Freedom of an Accused to Prejudice a Co-Accused, D.W. Elliott provides this justification for the strong policy favouring joint-trials.

English criminal procedure relies to no small extent on co-defendants doing the Crown's work for it and cutting each other's throats. The instinct of self-preservation in one co-accused may be a powerful engine working for the Crown, the more so as his ability to make life uncomfortable for his fellow is in several respects greater than that of the Crown... As Lord Goddard once remarked, 'the interests of the defendants are by no means the same as the interests of justice.' Separate trials risk unmerited acquittals. Doing justice often requires that co-defendants expose each other in court. The system relies heavily on this mutual bloodletting for the conviction of people who would otherwise escape their just deserts.

Professor Elliott goes on to explain the resolution of the dilemma posed by cut-throat defences this way.

There is a dilemma here which could only be avoided by separate trials. But separate trials will not be countenanced because, quite apart from the extra cost and delay involved, it is undeniable that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion. If each alleged participant is tried separately, there are obvious and severe difficulties in arranging for this to happen without granting one of them immunity. In view of this, in all but exceptional cases, joint trial will be resorted to, despite the double bind inevitably involved.

The Supreme Court of Canada picked up Elliott's theme and elaborated on it in R. v. Crawford; R. v. Creighton. Sopinka J. wrote at paragraphs 30 and 31:

There exist, however, strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly. The policy reasons apply with equal or greater force when each accused blames the other or others, a situation which is graphically labelled a "cut-throat defence". Separate trials in these situations create a risk of inconsistent verdicts.

Although the trial judge has a discretion to order separate trials, that discretion must be exercised on the basis of principles of law which include the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused. The mere fact that a co-accused is waging a "cut-throat" defence is not in itself sufficient. [emphasis added].

Severance of co-accused and separate trials may, however, be required in particular cases. In R. v. Elwood Martel, the Superior Court of Quebec granted a motion to sever the trials of two accused, both charged with first degree murder, because the evidence given by one main witness was inadmissible against one accused but was also the most direct and incriminating evidence against him. The Court held that in that case, which involved such complex issues, “it would be extremely difficult if not impossible for the jury to eradicate the inadmissible evidence from their minds (when dealing with Mr. Martel's case) no matter how carefully, forcefully and repeatedly they would be instructed to disregard it.” [emphasis in original]

Where antagonistic or 'cut-throat defences are in play, the right of an accused to make full answer and defence is likely to collide with the fair trial right of the other accused. In achieving an acceptable balance of the competing rights in the same trial, one co-accused may be permitted to attack the other in ways or degrees that are not open to the prosecutor. As Elliott said in his article, "[t]he notion of the Crown having one hand tied behind its back is familiar and accepted, but not the notion of a person standing trial being in that position. " »