R. v. Akumu

2017 BCSC 532 R. v. Akumu IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Akumu, 2017 BCSC 532 Date: 20170330 Docket: 26936 Registry: Vancouver Regina v. Moreen Akumu Mohammed Boima Restriction on publication: Pursuant to s. 486.4 C.C.C. Before: The Honourable Madam Justice B. Fisher Ruling on application for severance Counsel for the Crown: D. Nearing Counsel for the Accused Akumu: K. L. Mirsky Counsel for the Accused Boima V.L. Hartney Place and Date of Trial: Vancouver, B.C. March 17, 2017 Place and Date of Judgment: Vancouver, B.C. March 30, 2017 [1] On March 17, 2017, at the end of the pre-charge conference, Ms. Hartney made an application for severance on behalf of Mohammed Boima. The basis for the application stemmed from the way in which the Crown had charged the two accused in the indictment. [2] The indictment contains two counts against Mr. Boima and five counts against his co-accused, Moreen Akumu, all of which arise from an incident that is alleged to have taken place at Ms. Akumu's apartment in May 2014. Both accused are separately charged with sexual interference (s. 151) and sexual assault (s. 271) involving the complainant, A.W., who was under the age of 16 at the time. Count 3 charges Ms. Akumu with invitation to sexual touching (s. 152), specifically, that she invited A.W. to engage in the sexual touching of Mr. Boima. Court 4 charges Ms. Akumu as a householder permitting prohibited sexual activity (s. 171). The count does not name Mr. Boima but an essential element of this offence is that the householder permitted a person under the age of 18 to be in her premises for the purpose of having prohibited sexual activity with another person. [3] Ms. Hartney's concern was that the jury will be required to make findings of fact in counts 3 and 4 that involve Mr. Boima. Mr. Boima elected to call no defence and put his identity in issue, though that in itself was not the problem. [4] The problem was that the jury had before it an out-of-court statement of Ms. Akumu, entered as part of the Crown's case, not admissible against Mr. Boima. In that statement, Ms. Akumu gives some evidence about her friend "Mohammed" and how he came to her apartment on the night in question and had sex with A.W. Ms. Hartney submitted that there would be no way for me to prohibit the jury's use of that statement when it considers the charges against Mr. Boima and therefore there cannot be a fair trial without severance of the accused or (as I understood it), the counts involving Mr. Boima. [5] I had been alive to the nature of Ms. Hartney's concerns. During the trial, when Ms. Akumu's statement was introduced, I cautioned the jury about the use they could make of it, with particular emphasis on the fact that none of it was admissible against Mr. Boima. Further instructions about this were also to be included in my final instructions. [6] At the conclusion of counsel's submissions, I dismissed the severance application with reasons to follow. The matter was urgent, given that closing addresses were to begin the following court day, and it was my view that the problem raised by Ms. Hartney could be addressed in my final instructions in several ways that I will outline later in these reasons. [7] I will begin by outlining the general principles governing severance applications. General principles governing severance [8] Applications for severance are governed by s. 591(3) of the Criminal Code. This provision, which vests broad discretion in the trial judge, provides: (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; and (b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts. [9] The overarching question on a severance application is thus whether severance is required in the interests of justice. The interests of justice encompass the right of the accused to a fair trial, which includes "a right to be tried on the evidence admissible against him", and society's interest in "seeing that justice is done in a reasonably efficient and cost-effective manner": R. v. Last, 2009 SCC 45 at para. 16. The onus rests on the applicant to establish on a balance of probabilities that the interests of justice require severance: R. v. M.O.B. (1998), 123 CCC (3d) 270 (BCCA). [10] There are strong policy reasons favoring joint trials of accused persons who are charged with offences arising out of the same event or series of events. These include the risk of inconsistent verdicts, the cost of multiple trials to both the participants and the criminal justice system, and impairment of the truth seeking function of the trial due to the unlikelihood that either jury in a separate trial will hear the complete version of events. The policy reasons apply "with equal or greater force" where each accused puts forward a "cut-throat defence": R. v. Crawford, [1995] 1 SCR 858 at para. 30. Based on these principles, appellate courts have confirmed that severance will not be granted solely on the basis that evidence led against one accused is inadmissible or limited in its use against the other; it must be demonstrated that a joint trial would work an injustice to one accused: see, for example, R. v. Forknall, 2003 BCCA 43 at para. 44. [11] In Last, the Supreme Court set out a non-exhaustive list of factors that assist the trial judge in determining whether the interests of justice in a particular case require severance (at para. 18): [18] The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a 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 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 [citations omitted]. [12] Last concerned severance of counts thus not all of these factors are relevant to severance of accused. Nevertheless, the overarching principle that a balance must be struck between the risk of prejudice to the accused and the public interest in a single trial remains the same. As the Court emphasized, the trial judge must consider and weigh cumulatively all relevant factors in determining whether the interests of justice require severance (at paras. 44, 47). [13] There is, as well, a presumption that jurors are capable of understanding and following the trial judge's instructions as to the use they can make of the evidence that is before them: see R. v. Corbett [1988] 1 SCR 670 at 691-692; Forknall, at para. 44; R. v. Olah (1997), 33 OR (3d) 385 (CA). Courts have, however, recognized that there are limits to this proposition. In R. v. Suzack (2000), 141 CCC (3d) 449 (Ont. CA), for instance, Doherty J.A. stated (at para. 128): [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, supra, at p. 401; R. v. Eng (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 of 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 severance. 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. Timing [14] Under s. 591(4) of the Criminal Code, an order for severance may be made before or during a trial. This application for severance, the first and only application made by Mr. Boima, was made at the very end of the trial, after both accused had elected to call no defence, at the end of the pre-charge conference, and just before counsel were to make their closing addresses to the jury. [15] An application made very late in the trial presents particular problems. Witnesses have testified, elections have been made, and, as here, the cases for both Crown and defence are closed. In Suzack, Doherty J.A. commented about the timing of an application at para. 105: The point in a trial at which a severance application is made is relevant to the determination of the "interests of justice": R. v. M.(B.) (1998), 42 O.R. (3d) 1 at 9 (C.A.); R. v. C.(D.A.) (1996), 106 C.C.C. (3d) 28 (B.C.C.A.), aff'd, [1997] 1 S.C.R. 8. As Proulx J.A. said in R. v. Cross (1996), 112 C.C.C. (3d) 410 at 420 (Que. C.A.), leave to appeal to S.C.C. refused (1997), 114 C.C.C. (3d) vi: However, the time at which such motion is brought is likely to have an influence on the judge's decision whether or not to order separate trials. The considerations concerned with the proper administration of justice are more important at this stage. This is all the more true where the trial is a jury trial. The trial judge has the duty to take into account the practical consequences which an order for separate trials may have. He must also assess the potential prejudice which the co-accused will suffer should he grant the motion. [16] It is, of course, preferable that severance applications be made at the first appropriate opportunity. Nevertheless, the Code recognizes that there may be circumstances arising during a trial that give rise to the need for an accused to apply for severance, which could occur at any point. In R. v. C.(D.A.), cited above in Suzack, Lambert J.A. held that an application to sever counts on the ground of prejudice later in a trial "ought to rest on some prejudice that has arisen in the trial and that was not apparent at the beginning" (at para. 10). While these comments related to severing of counts, I consider them applicable here, as the prejudice identified by Ms. Hartney relates to how the Crown chose to frame the counts in the indictment. [17] In this case, the prejudice had been apparent for some time. The same seven counts have been included in the indictment since it was issued on December 1, 2015, and the fact that the Crown intended to adduce Ms. Akumu's statement as part of its case was known to all parties by January 20, 2017, when Voir Dire #3 (regarding voluntariness and a Charter application by Ms. Akumu) concluded earlier than scheduled. The only circumstance that changed at trial was Mr. Boima's election not to testify or call any defence evidence, the consequence of which was that his identity became a primary issue. This possibility, which was obviously in the control of the defence, had been apparent from the start. [18] Accordingly, it is difficult to ground this severance application, made at this very late stage of the trial, solely on the prejudice arising from the Crown's use of Ms. Akumu's statement. In balancing the right of the accused to a fair trial with society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner, I have to consider the consequences of an order for severance made now. [19] This trial, which was case managed from early 2016, commenced on February 14, 2017. Delay applications by both accused, on the basis of R. v. Jordan, 2016 SCC 27, are pending, depending on the verdicts. While Ms. Mirsky, on behalf of Ms. Akumu, cited no particular prejudice to her client if a severance order were made at this point, this trial would have taken less time if severance had been ordered before trial. Severance now will cause further delay to Mr. Boima's right to a trial within a reasonable time, and as of the date this application was made, we were just shy of 30 months from the date of the charges. Moreover, a new trial would require a good deal of the same evidence to be adduced again, most obviously, that of the 17-year old complainant whose testimony in this trial took place over five to six days. The merits of severance [20] Regardless of the late timing and the practical consequences I have mentioned, I have considered carefully the prejudice to Mr. Boima arising from the admission of Ms. Akumu's statement, as this is an important factor: see R. v. McLeod (1983), 6 CCC (3d) 29 (Ont. CA). For the following reasons, it is my view that the interests of justice do not require severance, as the prejudice can be adequately ameliorated by clear and comprehensive instructions to the jury. [21] First, it is important to note that this case concerns overlapping facts and a nexus between the alleged conduct of Ms. Akumu and Mr. Boima. The policy considerations favoring a joint trial in these circumstances are significant. [22] Second, the fact that a statement of one accused is inadmissible against a co-accused is not uncommon. There are many examples in the authorities of situations as or more serious than the present case in which this circumstance has been addressed with proper instructions to the jury. [23] For example, Suzack involved damaging propensity evidence led by one accused against the other, which would not have been admissible but for the participation of the two accused in a joint trial. Recognizing that fashioning the necessary instruction to the jury was not an easy task, the Ontario Court of Appeal did not interfere with the trial judge's decision to refuse severance, and found that the instruction given adequately protected the co-accused's right to a fair trial. In R. v. Welsh, 2013 ONCA 190, the trial judge had resorted to several methods to minimize the prejudice to an accused in relation to the admission of statements by two co-accused, which included editing parts of the statements, simple but emphatic instructions about the proper use of the evidence both during the trial and in the final charge to the jury, and dealing with each accused separately in the charge. The Court of Appeal was satisfied that the risk that the jury would not follow the instructions was attenuated by the manner in which the trial judge dealt with the evidence and that he had properly exercised his discretion in refusing to order severance. See also R. v. Soomel, 2006 BCCA 17 at para. 75. [24] Ms. Hartney founded her application on R v. Guimond, [1979] 1 SCR 960, where the admissible evidence against the accused who sought severance was substantially weaker than the evidence admissible against the co-accused. However, the facts were somewhat unique. In the joint trial of two co-conspirators, the statement of the accused Guimond, entered at trial, implicated the co-accused, Muzard. Guimond gave evidence at trial inconsistent with his statement, in which he withdrew his accusations against Muzard. Despite this, both accused were convicted at trial. On appeal by both, only Muzard was granted a second trial, and after this second trial he was acquitted. [25] The questions before the Supreme Court of Canada were (a) whether it was an error for the Quebec Court of Appeal to allow the appeal of one of the co-conspirators and direct a trial of him alone, and (b) whether the acquittal of the co-accused at his second trial should be given the effect of a finding that there was no conspiracy and that his fellow conspirator must also go free. The Court answered both questions in the negative. It was satisfied that the Court of Appeal was correct in ordering a new and separate trial for the co-accused, "whose motion to that end" was wrongly refused by the trial judge. Ritchie J. reasoned at 977-978: The statement made by Guimond to the police after the conspiracy had been aborted was totally inadmissible against Muzard for any purpose and yet the nature of the other evidence tendered against him, coupled with the fact of his acquittal when the statement was found irreceivable at his trial, satisfy me that he was convicted at the first trial on the basis of this inadmissible evidence. On its face the Guimond statement clearly inculpated Muzard in the conspiracy and in the circumstances of the present case, however often a jury had been told that it was evidence against Guimond alone, it could never have been said with assurance that one or more of the jurors did not convict Muzard on the basis of that statement. [26] In Guimond, there was clearly an imbalance in the strength of the evidence against each co-accused, and the fact that Muzard had been acquitted in the second trial demonstrated that his conviction at the first trial had to have been based on the inadmissible evidence. [27] The present situation is very different. This is not a case where the admissible evidence against Ms. Akumu can be said to be stronger than the admissible evidence against Mr. Boima, as in a case of conspiracy. Nor is it a case where the primary or only evidence implicating Mr. Boima is that contained in Ms. Akumu's statement. To the contrary, there is admissible evidence that identifies Mr. Boima. First, the complainant identified him before trial with a fairly specific description that included the fact that he is black and a double hand amputee. She also identified him at trial and was able to describe changes to his appearance. Second, there is DNA evidence that is confirmatory of the complainant's testimony. [28] In these circumstances, I was satisfied that the prejudice to Mr. Boima could be addressed in jury instructions that emphatically repeated the instructions previously given and which dealt with each accused separately; more particularly, by addressing first the charges against Mr. Boima and directing the jury to consider and decide those charges before considering and deciding the charges against Ms. Akumu. [29] For all of these reasons, the application for severance was dismissed. [30] Since these reasons were written after the jury instructions were given, I have appended to this decision excerpts from the jury charge that addressed this issue. "Fisher, J."