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Focus: Defendants face hurdle getting severance on appeal

Focus on: Criminal Law
|Written By Shannon Kari

The Ontario Court of Appeal has signalled that it will be difficult for defendants on appeal to successfully argue that a trial judge erred in denying a request for severance in a criminal proceeding.

An analysis of the law on severance including a concurring judgment by Justice David Watt aimed at providing guidance to trial courts was part of the Court of Appeal’s decision in R. v. Zvolensky, which upheld the first-degree murder convictions of the three defendants.

Justice Gladys Pardu, who wrote the main decision, stressed that a trial’s judge’s ruling 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 injustice,” 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 Toronto.

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 enlisted 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 officer 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 accused.

In deciding against the requests 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 prejudice 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 executed a plan to kill to which all were parties.

“Even when one accused has made statements inadmissible against another, courts have favoured joint trials in these circumstances,” Pardu wrote.

“There was a risk of inconsistent 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 incriminating” against his co-accused, notes Michael Dineen, a Toronto defence lawyer at Dawe Dineen, whose practice focuses on appellate work.

In terms of a limiting instruction about the use of evidence 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 necessary,” 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 provide some future assistance for trial judges when faced with a severance application by a defendant.

“The prima facie rule is that where the essence of the case for the Crown is that the persons charged were engaged in a common enterprise, they should be jointly indicted and jointly tried,” wrote Watt.

“However, what should not be forgotten about this common law rule is that it was not developed in a vacuum.

Like other common law rules, it is the product of judicial experience in the trial of criminal cases,” he stated.

The legal test for severance to be granted, noted Watt, is that it is in the interests of justice.

“The interests of justice are not coextensive with the interests of the accused,” Watt explained, adding that the interests of the prosecution must also be considered.

So-called “cutthroat” defences put forward by the accused or evidence that is stronger against some of the defendants is not sufficient on its own for severance, Watt explained.

“Their mere assertion is not a ticket out of Dodge,” he stated.

For severance to be granted, the prejudice must be “great enough, the circumstances particular enough, the presumptive rule must give way,” wrote Watt.

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, says Furgiuele.

“The upside is that there are a lot of different factors that go into the decision.

There is a lot of discretion for the trial judge and no one factor that will determine whether severance is granted,” he adds.

Dineen agrees that while the Court of Appeal has not amended the law on severance, it has reinforced the fact that trial judges have a lot of latitude in making this decision.

As well, increased concerns about unreasonable delays in bringing cases to trial in the criminal courts might make trial judges “more sympathetic” to severance in certain circumstances, he says.

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