Criminal Law Notebook

Joinder and Severance of Charges

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Joinder of Charges

Under s. 591(1), any counts can be joined onto the same indictment.

Joinder of counts

591 (1) Subject to section 589 [count for murder], any number of counts for any number of offences may be joined in the same indictment, but the counts shall be distinguished in the manner shown in Form 4 [forms].

Each count separate

(2) Where there is more than one count in an indictment, each count may be treated as a separate indictment.
[omitted (3), (4), (4.1), (4.2), (5) and (6)]
R.S., 1985, c. C-46, s. 591; R.S., 1985, c. 27 (1st Supp.), s. 119; 2011, c. 16, s. 5.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 591(1) and (2)

A party may apply to the court join charges on separate informations where the offences relate.[1] The judge further has the power to hear evidence concurrently on a summary and indictable matter where the offences relate.[2] The consequence of this is that an otherwise summary offence matter can be tried and disposed of by a Justice of a Superior Court where the offence relates to a indictable matter that the Justice is hearing evidence on.

Generally, "persons alleged to be involved in a common enterprise should be jointly tried". Separate indictments create the risk of "abusive mischief" such as where the crown calls one coaccused to testify against the other.[3]

See also: R v Dardon, 2004 ABQB 14 (CanLII), per Watson J

  1. ↑ See 9:13012 of E. Ewaschuk, Criminal Pleadings and Practice in Canada, 2d ed
  2. ↑ See R v Clunas, 1992 CanLII 27 (SCC), [1992] SCR 595, per Lamer CJ
  3. ↑ R v Anderson-Wilson, 2010 ONSC 489 (CanLII), OJ No 377, per Hill J
    R v Crawford, 1995 CanLII 138 (SCC), [1995] 1 SCR 858, per Sopinka J
    R v Agawa and Mallet, 1975 CanLII 482 (ON CA), 28 CCC (2d) 379, per Martin JA
    R v McNamara, 1981 CanLII 3120 (ON CA), 56 CCC (2d) 193, per curiam

Severance of Charges

The trial judge has the discretion sever counts or accused on an information or indictment under s. 591(3).[1] The discretion is "broad" when deciding whether to sever charges under s. 591(3).[2]

The relevant provision is found at 591(3) of the Criminal Code:

591
[omitted (1) and (2)]

Severance of accused and counts

(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.
Order for severance

(4) An order under subsection (3) [severance of accused and counts] may be made before or during the trial but, if the order is made during the trial, the jury shall be discharged from giving a verdict on the counts

(a) on which the trial does not proceed; or
(b) in respect of the accused or defendant who has been granted a separate trial.

[omitted (4.1), (4.2), (5) and (6)]
R.S., 1985, c. C-46, s. 591; R.S., 1985, c. 27 (1st Supp.), s. 119; 2011, c. 16, s. 5.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 591(3) and (4)

Severance is limited to stations where "the interests of justice require it" and a joint trial would "work an injustice" to one or more accused.[3]

The question can be framed as whether a refusal would be a miscarriage of justice.[4]

Severance of Accused vs Charges

Where the intention is to sever counts, the governing provision is s. 591(3)(a). Where the intention is to sever accused, the governing provision is s. 591(3)(b).

Types of Charges

The authority to sever under s. 591(3)(a) does not distinguish between types of charges.[5]

Only a judge can order the severance of charges.[6]

Procedure

Severance can only be ordered by the trial judge and not the Crown.[7]

Timing of Application

The application can be made before or during the trial.[8] Timing of the application is a factor in the assessment of the interests of justice.[9]

Severance during trial will usually be limited to circumstances where the prejudice arises during the trial and was not apparent at the beginning.[10]

Where the application is brought at the end of the Crown case, the burden is "very heavy."[11] The applicant cannot simply rely on a mere "desire" to testify to some counts and not others. The necessity of severance must be "demonstrated" by "lay[ing] out his cards."[12]

Presumption

There is a presumption against severing charges.[13]

There are "strong policy reasons" to "favour joint trials."[14]

Where there are multiple accused who are alleged to have undertaken a joint enterprise, there is a "strong presumption" that the accused be charged together for offences arising from the same events.[15]

Purpose

The policy reasons for joint trials where the "offences aris[e] out of the same event or series of events to be tried jointly" include:[16]

  1. Joint trials are more likely to uncover the truth.
  2. Joint trials avoid inconsistent verdicts.
  3. Joint trials are more efficient.
  4. Joint trials are less disruptive for witnesses.
Standard of Appellate Review

The decision to sever is a discretionary decision and so should not be interfered with unless resulting in an injustice.[17]

  1. ↑ R v Moore, 2020 ONCA 827 (CanLII), per curiam, at para 10 ("Decisions on applications for severance, whether of counts or accused, involve the exercise of discretion")
  2. ↑ R v Last, 2009 SCC 45 (CanLII), [2009] 3 SCR 146, per Deschamps J, at para 21 ("Since the trial judge enjoys a broad discretion in deciding whether to sever or not, a reviewing court should only intervene on the ground of unjudicial ruling if the judge erred on a question of law or made an unreasonable decision.")
  3. ↑ R v Kebede, 2022 ABCA 353 (CanLII), at para 74(complete citation pending)
    R v Chow, 2005 SCC 24 (CanLII), per Fish J(complete citation pending)
  4. ↑ R v McNamara, 1981 CanLII 3120 (ON CA), 1981 56 CCC (2d) 193, per curiam
  5. ↑ Moore, supra, at para 10
  6. ↑ R v Litchfield, 1993 CanLII 44 (SCC), [1993] 4 SCR 333, per Iacobucci J
  7. ↑ R v Litchfield, 1993 CanLII 44 (SCC), [1993] 4 SCR 333, per Iacobucci J
  8. ↑ see s. 591(4).
  9. ↑ R v Suzack, 2000 CanLII 5630 (ON CA), 141 CCC (3d) 449, OJ No 100 (ON CA), at para 104
  10. ↑ R v Cuthbert, 1996 CanLII 8341 (BC CA), 106 CCC (3d) 28, per Lambert JA, at para 10
  11. ↑ R v Cross, 1996 CanLII 5992 (QC CA), 112 CCC (3d) 410, [1996] AQ 3761, per Proulx JA, at para 44 "...I would say that the burden on an accused who brings a motion for separate trials at the end of the prosecution's case is very heavy. It must be remembered that he has the obligation of satisfying the Court that the superior interests of justice command that his motion be granted."
  12. ↑ Cross, ibid., at para 45
  13. ↑ R v Crawford, 1995 CanLII 138 (SCC), [1995] 1 SCR 858, per Sopinka J
  14. ↑ Crawford, supra, at and 30 para 19 and 30
    R v Chow, 2005 SCC 24 (CanLII), [2005] 1 SCR 384, per Fish J, at para 47
  15. ↑ R v Dhaliwal, 2017 BCSC 2215 (CanLII), per Ross J, at para 20 ("There is a strong presumption in favour of joint trials where the accused are alleged to have engaged in a joint criminal enterprise. For those persons who are alleged to have conspired to or have committed a crime in concert, separate trials are the exception and not the norm")
  16. ↑ Crawford, supra, at para 30
    R v Sciascia, 2017 SCC 57 (CanLII), [2017] 2 SCR 539, per Moldaver J, at para 33 ("benefits can include such things as improving judicial economy by avoiding redundancy, aiding the truth-seeking function of a trial, reducing inconvenience to witnesses, simplifying resolution discussions and enhancing public confidence by preventing the spectre of inconsistent findings with respect to the same events. These benefits make clear that, absent prejudice, holding a joint trial where a sufficient factual nexus exists will promote the interests of justice: ... ")
  17. ↑ Litchfeild, supra ("an appellate court should not interfere with the issuing judge’s exercise of discretion unless it is shown that the issuing judge acted unjudicially or that the ruling resulted in an injustice.")
    R v Cawthorne, 2016 SCC 32 (CanLII), per McLachlin CJ

"Interests of Justice" test

The "interest of justice" is determined based on the balance of “prejudice to the accused and the public interest in a single trial”. [1] In effect, this is a balancing between the accused interest's in trial against society's interest that justice be done in a reasonably efficient and cost-effective manner.[2]

The interests at play include:[3]

  1. interests of the accused;
  2. interests of the Crown;
  3. interests of society;
  4. truth-seeking function of the Courts;
  5. integrity of the process.

The balancing includes the interests of those of the accused, the co-accused, and the community as represented by the prosecution. The trial judge shall weigh the competing interests and will sever only if satisfied that severance is required. The applicant must overcome the presumption that co-accused who are jointly charged and are said to have acted in concert, should be tried together.[4] The policy reasons for this presumption includes enhancing the truth-finding process, precluding the possibility of inconsistent verdicts and avoiding the cost and inconvenience of multiple trials of the same issues.[5]

The Crown has the option to indict the accused separately or jointly, and the discretion so exercised is entitled to great weight.[6]

Interests of accused

The "interests of accused" does not include the "perception of the fairest trial possible."[7]

Factors

The factors to consider include:[8]

  • 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
  • expense and convenience of witnesses;[9]

Severance will usually be granted where:[10]

  • the defendants have antagonistic defences;
  • the important evidence in favour of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial;
  • the evidence which is incompetent against one defendant is to be introduced against another, and that it would work prejudicially to the former with the jury;
  • a confession made by one of the defendants, if introduced and proved, would be calculated to prejudice the jury against the other defendants; and
  • one of the defendants could give evidence for the whole or some of the other defendants and would become a competent and compellable witness on the separate trials of such other defendants.

It has been suggested that counts should be severed for multiple sexual offences that relate to separate complainants whose eye-witness identification is necessary to the trial.[11]

Factual and Legal Nexus


Choice of Counts to Testify Against

If the accused wishes to testify against some charges but not others, the judge should be satisfied that the circumstances "objectively establish" a reason for it. There must be "substance to his testimonial intention."[12] The accused has the burden to present sufficient information to make out the rationale.[13]

Similar Fact Evidence
Risk of Propensity and Credibility Bolstering

The risk of the trier-of-fact using propensity evidence is a significant factor, this is especially so if one of the offences includes severe allegations.[14]

Multiple Accused

The reason for a joint trial is that "the full truth...is more likely to emerge if every alleged participant gives his or her account on one occasion."[15]

Cut-Throat Defence

A co-accused trial will necessarily involte risk of a co-accused "casting a shadow" on the other."[16] The mere assertion of a cut-throat defence is sufficient to warrant separate trials.[17]

  1. ↑ R v TIE, 2012 MBQB 20 (CanLII), 273 Man R (2d) 315, per Suche J, at para 8
  2. ↑ R v Moore, 2020 ONCA 827 (CanLII), per curiam, at para 11 ("The phrase “the interests of justice” acknowledges and seeks to balance an accused person’s interest in being tried on the evidence properly admissible against them on the one hand, and society’s interest that justice be done in a reasonably efficient and cost effective manner on the other")
    R v Durrant, 2019 ONCA 74 (CanLII), 144 OR (3d) 465, per Watt JA, at para 72 (" general terms, the phrase “interests of justice” endeavours to balance an accused’s interest in being tried on evidence properly admissible against him or her and society’s interest that justice be done in a reasonably efficient and cost-effective manner")
  3. ↑ R v Beaulac, 1999 CanLII 684 (SCC), [1999] 1 SCR 768, per Bastarache J
    R v Owen, 2003 SCC 33 (CanLII), [2003] 1 SCR 779, per Binnie J, at para 52
    R v Last, 2009 SCC 45 (CanLII), [2009] 3 SCR 146, per Deschamps J, at para 16
    R v Cowan, 2021 SCC 45 (CanLII), 409 CCC (3d) 287, per Moldaver J, at para 63
  4. ↑ R v Savoury, 2005 CanLII 25884 (ON CA), 200 CCC (3d) 94, per Doherty JA, at para 22
    R v Chow, 2005 SCC 24 (CanLII), [2005] 1 SCR 384, per Fish J
  5. ↑ R v Sarrazin, 2005 CanLII 11388 (ON CA), [2005] OJ No 1404, per Blair JA
  6. ↑ R v Handsor, 2005 MBQB 59 (CanLII), [2005] MJ No 79, 193 Man.R. (2d) 8 (Q.B.) at 6
  7. ↑ Moore, supra, at para 11 ("The “interests of justice” are not commensurate with the “interests of the accused”, or the accused’s perception of the fairest trial possible.")
  8. ↑ Last, supra, at para 18
    R v E(L), 1994 CanLII 1785 (ON CA), 94 CCC (3d) 228, per Finlayson JA, at p. 238
    R v Cross, 1996 CanLII 5992 (QC CA), 112 CCC (3d) 410, per Proulx JA, at p. 419
    R v Cuthbert, 1996 CanLII 8341 (BCCA), 106 CCC (3d) 28, per Lambert JA, at para 9, aff'd 1997 CanLII 397 (SCC), [1997] 1 SCR 8, per Sopinka J
    TIE, supra (failed)
  9. ↑ Handsor, supra
  10. ↑ Handsor, supra
  11. ↑ R v Henry, 2010 BCCA 462 (CanLII), 294 BCAC 96, per Low, at para 85
  12. ↑ Last, supra, at paras 22 to 30
  13. ↑ Last, supra
  14. ↑ Last, supra, at para 40 ("The significant risk of propensity reasoning to the accused cannot be understated. ... the jury would inevitably wonder why two complainants who did not know each other would independently accuse [the accused] of sexual assault. Furthermore, if the jury was convinced beyond a reasonable doubt that Mr. Last had committed sexual assault on one victim, the jury would be inclined to reason that Mr. Last had the propensity for committing this type of offence and convict on the other. ")
    R v DB, 2020 ONSC 1462 (CanLII), per Schreck J, at para 37 - accounted for "horrific" 911 call
  15. ↑ R v Hubler, 2013 ABCA 31 (CanLII), 542 AR 145, per curiam, at para 36
  16. ↑ R v Kebede, 2022 ABCA 353 (CanLII), per curiam, at para 74
  17. ↑ R v Crawford, 1995 CanLII 138 (SCC), [1995] 1 SCR 858, per Sopinka J
    Kebede, supra, at para 74

Consequences of An Order of Severance

591
[omitted (1), (2), (3) and (4)]

Delayed enforcement

(4.1) The court may make an order under subsection (3) [severance of accused and counts] that takes effect either at a specified later date or on the occurrence of a specified event if, taking into account, among other considerations, the need to ensure consistent decisions, it is satisfied that it is in the interests of justice to do so.

Decisions binding on parties

(4.2) Unless the court is satisfied that it would not be in the interests of justice, the decisions relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that are made before any order issued under subsection (3) [severance of accused and counts] takes effect continue to bind the parties if the decisions are made — or could have been made — before the stage at which the evidence on the merits is presented.

Subsequent procedure

(5) The counts in respect of which a jury is discharged pursuant to paragraph (4)(a) [order of severance in jury trial – counts not proceeded] may subsequently be proceeded on in all respects as if they were contained in a separate indictment.

Idem

(6) Where an order is made in respect of an accused or defendant under paragraph (3)(b) [severance of accused and counts – multiple co-accused], the accused or defendant may be tried separately on the counts in relation to which the order was made as if they were contained in a separate indictment.
R.S., 1985, c. C-46, s. 591; R.S., 1985, c. 27 (1st Supp.), s. 119; 2011, c. 16, s. 5.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 591(4.1), (4.2), (5), and (6)

See also: R v Tymchyshyn et al, 2011 MBQB 261 (CanLII), 271 Man R (2d) 303, per Keyser J (rejected)

Jordan Delay in Multi-Party Proceedings
See also: Right to a Trial Within a Reasonable Time

See Also

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