R. v. Tickell and Walsh

2011 BCSC 472 R. v. Tickell and Walsh IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Tickell and Walsh, 2011 BCSC 472 Date: 20110404 Docket: 25302-2 Registry: Vancouver Regina v. George Thomas Tickell and Matthew John Walsh Before: The Honourable Mr. Justice Savage Oral Reasons for Judgment Counsel for the Crown: G. Sair Counsel for the Accused Tickell: In Person Counsel for the Accused Walsh: D. Tarnow Place and Date of Hearing: Vancouver, B.C. April 4, 2011 Place and Date of Judgment: Vancouver, B.C. April 4, 2011 I. Introduction [1] This is an application for severance of a trial pursuant to section 591(3)(a) that the applicant, John Matthew Walsh ("Walsh"), be tried separately from his co-accused. The indictment charges Walsh jointly with George Thomas Tickell ("Tickell") on 5 counts and charges Walsh separately on 4 counts on an 11 count indictment. If found guilty on some of the charges the accused would face mandatory imprisonment. Tickell has obtained adjournment of his trial based on his circumstances. Walsh's trial will proceed only if obtains severance, one week from today. [2] Walsh says that he is ready to go, the matters on which he is charged occurred in 2006 and 2007, the charges were laid in 2008. Since then there have been appearances to set the matter for preliminary hearing, a six-day preliminary hearing that was completed in January, pre-trial conferences to fix dates, and an adjournment application by his co-accused. Tickell does not qualify for legal aid because of his assets, and is awaiting the outcome a division of assets hearing with his estranged spouse. A court application is scheduled for hearing at month's end. After disposition he would then be in a position to hire counsel of his choice. At that time he would decide on whether to proceed by judge and jury, (which he has elected), or judge alone. Walsh says he is ready to proceed by judge alone. [3] The offences charged concern the importation into Canada of prohibited devices, replica firearms, contrary to the Criminal Code and Customs Act, and the transfer (sale) of those items. The accused Walsh apparently operates two businesses that are involved in replica firearm importation and sale, and counsel advises a major element of the defence will be that no offence is made out by these acts. [4] The matter was set for trial to commence today and by agreement would proceed Monday (one week from today) if the severance application succeeds. Otherwise, Walsh says, the case would probably not proceed for another year. Thus, matters that occurred in 2006 and 2007 would finally be tried in 2012. [5] The Crown argues that the case is document rich, and there is a nexus between the actions of both accused. This would therefore involve the Crown in having to run two lengthy trials instead of one. The Crown notes that this predicament has not arisen through the conduct of the Crown or Walsh, so there is no element of Crown's fault involved. [6] The Crown opposing the application cites two recent cases, R. v. Last, 2009 SCC 45, and R. v. Cruz, 2010 CM 2020 (CanLII). In Last the Supreme Court of Canada found that the trial court erred in failing to sever two counts of sexual assault against an accused under section 591(3)(a), as the accused may have testified in relation to one count but not the other. In Last, the Court Martial court refused severance to a single accused who wanted three trials on making false documents, fraud in the claiming of expenses, and obstruction of justice charges. Although the counts separated into three types of offences they were all related to the accused's conduct regarding expense claims and the aftermath of those actions. The court considered the risks of inconsistent verdicts significant if three separate trials were held. [7] Neither of these cases are particularly helpful on the facts as neither involves the severance of trials of two accused under section 591(3)(b). Both involve severance applications under section 591(3)(a) of the Criminal Code. That said, I accept that the principles set out in Last and a case cited therein, R. v. Litchfield, [1993] 4 S.C.R. 333 apply. The interests of justice referred to in the section, 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 a reasonably efficient and cost-effective manner. I accept that the interests of justice may often call for a joint trial based on the factors enumerated in Last and Litchfield. [8] It seems to me, however, that the interests of justice also require that a trial proceed in a timely way and that is a most important factor here. We are now between four and five years since the alleged offences occurred. While I appreciate the policy behind the statutory provisions at issue, it is not suggested that there is any victim for these offences. There is an argument regarding statutory interpretation which goes to the root of whether an offence has been committed. Walsh continues to operate his business. If convicted he is subject to incarceration for offences that occurred years before. While there is concern that there might be inconsistent verdicts, the Crown raises this in connection with the potential for differing interpretations of the statutory provisions. Walsh says that if acquitted charges might not proceed at all against the current co-accused. Likewise, I suppose, if convicted the current co-accused Tickell might have other considerations as well. [9] In the circumstances here, weighing the interests of the accused and the efficient administration of justice, in my view the interests of justice favour Walsh being entitled to proceed now, on a timely basis, to his day in court. In the circumstances the severance application of Walsh is allowed. The matter shall proceed to trial on Monday, April 11, 2011 on the charges set forth in the indictment against Walsh. "The Honourable Mr. Justice Savage"