R. v. Zvolensky, 2017 ONCA 273
[245] It is difficult to underestimate the importance of a principled, case-specific approach to claims advanced by some or all jointly indicted accused of entitlement to separate trials. What is essential is that trial judges construct their analysis on a proper foundation and reach their conclusions on the basis of a reasoned consideration of all the relevant circumstances. This is not the place for the application of what are sometimes offered as [page454] the functional equivalent of bright-line exceptions, which are said, without more, to dislodge basic principle.
[246] The basic rule originates in the common law and is of venerable lineage. The prima facie rule is that where the essence of the case for the Crown is that the persons charged were engaged in a common enterprise, they should be jointly indicted and jointly tried: R. v. Grondkowski; R. v. Malinowski, [1946] K.B. 369, [1946] 1 All E.R. 559 (C.C.A.), at p. 371 K.B.
[247] The prima facie rule of the common law, sometimes characterized as a presumptive rule, is grounded in sound social policy reasons. These reasons have been adequately rehearsed elsewhere, including by my colleague, and are in no need of restatement here. However, what should not be forgotten about this common law rule is that it was not developed in a vacuum. Like other common law rules, it is the product of judicial experience in the trial of criminal cases. And that experience no doubt would have included commonplace joint trial events such as antagonistic or cutthroat defences, evidence of limited admissibility and differences in the nature and extent of the evidence inculpatory of various accused. Yet, the prima facie rule of joint venture -- joint trial remains.
[248] This common law rule continues to apply in Canada under s. 8(2) of the Criminal Code, R.S.C. 1985, c. C-46 except to the extent that it is altered, varied, modified or affected by the Code or other federal enactment. The Criminal Code contains no express general provision about joinder of accused, like it does for joinder of counts in s. 591(1).
[249] What the Criminal Code does do, in s. 591(3), is settle the standard to be met before the discretion to order separate trials for jointly indicted accused is engaged: "the interests of justice so require".
[250] The language used to formulate the standard or test for severance is important. The "interests of justice" are not coextensive with the "interests of the accused". If that were so, not only would the standard be expressed in different terms, but also such a construction would substitute a rule of law for an exercise of judicial discretion: Grondkowski; Malinowski, at p. 372 K.B.
[251] The phrase "interests of justice" requires consideration of the interest of the prosecution as an essential component of the analysis: R. v. X, [2012] EWCA Crim. 2276, [2012] All E.R. (D) 09, at para. 17.
[252] The fact that a co-accused in a joint trial is running an antagonistic or "cutthroat" defence is common. Sometimes, as [page455] here, all advance similar claims. Equally familiar is the fact that one co-accused has implicated another or others in the offence(s) charged in a police interview or otherwise, something denied by the other co-accused and not admissible as evidence against them. So too the case of a co-accused who has exculpated himself but implicated others in an out-of-court statement may decide not to testify and rely on his out-of-court statement. On other occasions, a co-accused may give evidence adverse to another co-accused who has already given evidence and closed his case. See, generally, R. v. Miah, [2011] EWCA Crim. 945, [2011] All E.R. (D) 167 (C.C.A.), at para. 59; R. v. Cairns, [2002] EWCA Crim. 2838, [2003] 1 Cr. App. R. 38, at para. 52.
[253] In many cases of joint criminal activity involving several co-accused, the evidence against one may be (or appear) much stronger than against another or others. In such cases, once the jury is sure that one accused is guilty, it may become more likely that they will be equally convinced of the guilt of another or others: X, at para. 16.
[254] The examples given in the preceding paragraphs illustrate factors that a trial judge should consider in deciding whether the "interests of justice" require a separate trial for any or all co-accused. But they are not, as sometimes seems to be thought and advanced as dispositive nowadays, categorical exceptions to the presumptive rule of joint venture -- joint trial. Their mere assertion is not a ticket out of Dodge. To be certain, where the case for severance is strong enough, the prejudice great enough, the circumstances particular enough, the presumptive rule must give way: R. v. Lake (1976), 64 Cr. App. R. 172 (C.A.), at p. 175. But not otherwise.
Aucun commentaire:
Publier un commentaire