R. v. Thrower and Mercredi, 2005 BCSC 234 (CanLII)
(vii) Where Accuseds Have Antagonistic Defences
[38] “Cut-throat” defences, where the co-accuseds attack each other, often create a difficult situation. In light of such a defence the court has to balance the right of the accused to a fair trial with the right of the co-accused to make full answer and defence. Even where the Crown cannot adduce evidence of an accused’s bad character, a co-accused may do so where it would be relevant to the defence of that co-accused: R. v. Kendall & McKay 1987 CanLII 180 (ON CA), (1987), 35 C.C.C. (3d) 105 (Ont.C.A.); R. v. Suzack, supra; R., v. Valentini 1999 CanLII 1885 (ON CA), (1999), 132 C.C.C. (3d) 262 (Ont.C.A.); and R. v. Farrell 2000 CanLII 4096 (ON CA), (2000), 145 C.C.C. (3d) 569 (Ont.C.A.). Prejudice to the co-accused against whom the evidence is led, should be dealt with by a careful instruction to the jury on the use that may be made of the evidence by the accused who led it and by the Crown.
[39] In R. v. Lane and Ross, [1970] 1 C.C.C. 196 (Ont. H.C.J.), Addy J. stated at pp. 201-2:
In so far as the question of antagonistic defences is concerned, and the effect of a possible searching cross-examination by opposing defence counsel of either of the two accused who might wish to testify on his own behalf, I again feel that, on the facts of this case, if in fact there was no common purpose, the main issue might very well turn on who fired the fatal shots. In such a case it might very well be better for the innocent party, as well as for the general administration of justice, that the same jury hear all the evidence and be in a position to fix the guilt where it belongs. Separate trials with separate juries might very well lead to the conviction of the innocent party and the freeing of the guilty one. Again on the facts of the case, should there in fact be a common intention, then I again feel that the same jury should hear the evidence. Separate trials might well lead to the conviction of the one who did not actually fire the shot and the freeing of the one who did.
[40] The case of R. v. Smith, [1993] B.C.J. No. 867 dealt with an application pursuant to s. 591(3) of the Criminal Code for severance. The accused and co-accused claimed they had antagonistic defences. The court held that persons engaged in a common enterprise should usually be jointly tried and that in this case the conflicting statements by each accused concerning his own involvement required a joint trial. The judge held that a jury should hear and weigh the whole of the evidence when it involves reciprocal blaming and accordingly, the court held it was not in the interest of justice to require severance.
[41] Similarly in R. v. Suzack, supra, Doherty J.A. stated at para. 88:
Separate trials where co-accused are blaming each other for the crime raise not only the danger of inconsistent verdicts, but also a real concern that the truth will not be discovered at either trial. It is axiomatic that the truth of an allegation is best tested through a process which requires the accuser to confront the accused with the allegation and gives the accused a chance to respond to the allegation. If co-accused who are blaming each other for a crime are allowed to do so in separate trials, neither jury will have the benefit of that process. If the accused are tried separately, it is highly unlikely that either jury will hear the complete story. As Professor Elliot said in “Cut throat Tactics: the freedom of an accused to prejudice a co-accused”, [1991] Crim.L.R., 5 at 17:
.. 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, on all but exceptional cases, joint trial will be resorted to, despite the double bind inevitably involved...
[42] In R., v. Crawford, supra, Sopinka J., summarized at pp. 497-98:
... the gerneral rule, therefore, is that the respective rights of the co-accused must be resolved on the basis that the trial will be a joint trial. This does not mean, however, that the trial judge has been stripped of his discretion to sever. That discretion remains, and can be exercised if it appears that the attempt to reconcile the respective rights of the co-accused results in an injustice to one of the accused.
[43] In R. v. Suzack, supra, Doherty J.A., speaking for the Court, addressed the ability of a properly instructed jury to use evidence of bad character led by one co-accused against the other only for the purposes of the defence of the co-accused who led the evidence, but not as part of the Crown’s case against the other accused. This type of evidence is not admissible in regular trials on behalf of the Crown, however, it is admissible in joint trials but only on behalf of the co-accused as part of his defence. Doherty J.A. was well aware that this evidence, led against Suzack by his co-accused “posed a threat to Suzack’s right to a fair trial.” He also recognized that severance was an option but that it created other difficulties. He held that the trial judge did not err in refusing severance and handling the issue by a proper jury instruction. Doherty J.A. was alive to the fact that there is always a concern about the ability of a jury to understand complex legal instructions, and even the willingness of the jury to follow such instructions. However, he stated at para. 128:
As long as we maintain trial by jury, however, courts must proceed on the basis that juries accept and follow the instructions given to them by the trial judge: R. v. Corbett 1988 CanLII 80 (SCC), (1988), 41 C.C.C. (3d) 385 (S.C.C.) At 401; R. v. Eng 1999 BCCA 425 (CanLII), (1999), 138 C.C.C. (3d) 188 at 201-202 (B.C.C.A.). That is not to say that in a specific case a trial judge could not decide that the risk of misuse or propensity evidence offered by one co-accused could not be adequately addressed by a limiting instruction. If a trial judge reaches that conclusion, he or she will have no choice but to order severence. It would, however, be wrong for a trial judge to accept as a general proposition that a jury would not or could not abide by a limiting instruction.
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