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Law Times • may 29, 2017 Page 11 www.lawtimesnews.com Ruling a reminder of presumption for joint trials Defendants face hurdle getting severance on appeal BY SHANNON KARI For Law Times T he Ontario Court of Appeal has signalled that it will be difficult for defendants on ap- peal to successfully argue that a trial judge erred in denying a re- quest for severance in a criminal proceeding. An analysis of the law on severance including a concur- ring judgment by Justice David Watt aimed at providing guid- ance to trial courts was part of the Court of Appeal's decision in R. v. Zvolensky, which up- held the first-degree murder convictions of the three de- fendants. Justice Gladys Pardu, who wrote the main decision, stressed that a trial's judge's rul- ing on this issue will be granted significant deference. "An appellate court should not intervene in a trial judge's decision whether to sever the accused unless it is satisfied that the judge acted unjudicially or that the ruling resulted in an in- justice," wrote Pardu. Andrew Furgiuele, who was one of the lawyers for Zdenek Zvolensky on appeal, said the ruling is a reminder that the presumption is for joint trials. "When trial judges make the decision [on severance], they will receive a wide berth of discretion," says Furgiuele, a lawyer at DSF Litigation in To- ronto. Zvolensky, Nashat Qahwash and Ronald Cyr were convicted by a jury of first-degree murder in the February 2009 shooting death of Cyr's wife. The Crown alleged that Cyr hired Zvolensky who then en- listed Qahwash to help with the killing. All three defendants testified at trial and blamed each other. Zvolensky made incriminating statements to an undercover officer during the investigation into the shooting. Cyr told the undercover of- ficer how the murder plan was devised and that it was carried out by the other two men. Zvolensky and Qahwash wanted to be tried separately from Cyr or individually. The admissions made to the undercover officer were not admissible against the other ac- cused. In deciding against the re- quests for severance, Superior Court Justice Linda Walters concluded that any prejudice could be mitigated through limiting instructions to the jury and editing of the defendants' statements. Lawyers for Zvolensky and Qahwash argued on appeal that no limiting instruction to the jury could overcome the preju- dice of Cyr's admissions to the undercover officer. The Court of Appeal panel, which also included Justice Robert Sharpe, rejected this argument. "All three appellants were closely connected to the killing and they each blamed another. They were alleged to have exe- cuted a plan to kill to which all were parties. "Even when one accused has made statements inadmissible against another, courts have fa- voured joint trials in these cir- cumstances," Pardu wrote. "There was a risk of incon- sistent verdicts with two or three trials. This was a case that called out for a joint trial," she stated. The statements made by Cyr were clearly "highly incrimin- ating" against his co-accused, notes Michael Dineen, a To- ronto defence lawyer at Dawe Dineen, whose practice focuses on appellate work. In terms of a limiting in- struction about the use of evi- dence that was inadmissible against the other accused, it would be difficult for a jury to follow, he suggests. "You have to wonder to what extent it is possible to ignore this evidence," says Dineen. The decision in Zvolensky "is a stark example of how hard it is to convince the Court of Appeal that severance was ne- cessary," he adds. The concurring judgment issued by Watt stated that he agreed with his colleagues on dismissing the appeals and the reasons given. However, he indicated that he was also attempting to pro- vide some future assistance for trial judges when faced with a severance application by a de- fendant. "The prima facie rule is that where the essence of the case for the Crown is that the persons charged were engaged in a com- FOCUS Andrew Furgiuele says that while it may be difficult for a defendant alleged to be part of a joint criminal enterprise to be tried separately, the Court of Appeal has assisted in outlining what an accused must show. See Ruling, page 12 © 2017 Thomson Reuters Canada Limited 00243WD-A86721-CE Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 CORPORATE / COMMERCIAL Secured lending insight starts here New Edition The 2017 Annotated Ontario Personal Property Security Act Richard H. 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Daily Canadian legal news Get More Online LegalFeeds.ca There was a risk of inconsistent verdicts with two or three trials. This was a case that called out for a joint trial. Justice Gladys Pardu

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