Severance in Ontario Criminal Proceedings

Section 591(3)(a) of the Canadian Criminal Code (“Code”) gives the court broad discretion to sever counts in an indictment where it is satisfied that the interests of justice so require. The accused bears the onus of justifying severance on the balance of probabilities.

In exercising this discretion, the court balances the accused’s right to be tried on the evidence admissible against the accused with society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner, mindful of the risk that evidence admissible on one count could influence the verdict in an unrelated count.

The “interests of justice” under s. 591(3)(a) of the Code has been interpreted as including several non-exhaustive factors to be weighed in the balance, including:

* general prejudice to the accused as a result of the influence of the volume of evidence adduced and the effect of verdicts across counts;

* the legal and factual nexus between or among counts;

* the complexity of the evidence;

* the desire of the accused to testify on one or more counts but not on another or others;

* the possibility of inconsistent verdicts;

* the desire to avoid a multiplicity of proceedings;

* the use of evidence of similar acts;

* the length of the trial;

* prejudice to the accused’s right to be tried within a reasonable time; and

* the existence or likelihood of antagonistic defences.

Considerable deference is owed to a lower court’s exercise of discretion as to severance. An appellate court may intervene only if the lower court acted unjudicially or the ruling resulted in an injustice. These are distinct inquiries. A lower court acts unjudically if, based on the circumstances at the time the ruling was made, the court errs on a question of law or principle or makes an unreasonable decision. A lower court’s ruling results in an injustice based on how the entire trial and the verdicts unfold, including the potential prejudicial effect of the evidence, the closing addresses of counsel, the judge’s jury instructions, and any inference that may be drawn from the jury’s ultimate verdicts.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

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