R. v. Briscoe, 2011 ABQB 160

Court of Queen ’ s Bench of Alberta Citation: R. v. Briscoe, 2011 ABQB 160 Date: 20110310 Docket: 100723519Q1 Registry: Edmonton Between: Her Majesty the Queen Crown (Respondent) - and - Michael Erin Briscoe Accused (Applicant) Corrected judgment: A corrigendum was issued on February 27, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. Corrected judgment: A corrigendum was issued on March 11, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment (Pre-trial Severance Application) of the Honourable Mr. Justice K.D. Yamauchi

_______________________________________________________ I. Introduction [ 1 ] On May 31, 2010, the Crown charged Michael Erin Briscoe [the “Applicant”] by direct indictment with the following four offences under the Criminal Code , R.S.C. 1985, c. C-46 [“ Criminal Code ”]: 1. first degree murder of Ellie-May Meyer [“Meyer”] pursuant to Criminal Code s. 235(1); 2. first degree murder of Nina Louise Courtepatte [“Courtepatte”] pursuant to Criminal Code s. 235(1); 3. aggravated sexual assault of Courtepatte pursuant to Criminal Code s. 273(2)(b); and 4. kidnapping of Courtepatte pursuant to Criminal Code , s. 279.

Each of the charges set forth in the indictment are referred to as “counts.” [ 2 ] The Applicant’s trial on these charges is scheduled to begin in the early part of April 2011. [ 3 ] The Applicant applies, pursuant to Criminal Code ss. 589 and 591(3) , to have this Court sever these counts.

In other words, he seeks to have this Court order that he be tried separately on each of the counts by having this Court sever: 1. the non-murder aggravated sexual assault and kidnapping charges from the murder charges, and 2. the two murders. [ 4 ] The Crown opposes the Applicant’s motion and argues that the interests of justice require these charges be tried at the same time in a single trial. II. Background [ 5 ] A brief description of the Crown’s theory of these offences and the Applicant’s alleged role is helpful to evaluate whether severance is appropriate.

It should be noted that for the purposes of this application, neither the Crown nor the Applicant has presented evidence to this Court. This Court has, at best, theories and arguments as to how this matter will unfold as the trial progresses.

A. Meyer [ 6 ] The Crown’s theory is that on April 1, 2005, Meyer, an Edmonton area prostitute, was picked up by the Applicant, Joseph Laboucan [“Laboucan”], and Stephanie Bird [“Bird”] in a vehicle that Bird owned. The Applicant drove the vehicle. [ 7 ] At the time, the Applicant and Bird were in a relationship and stayed together in a rented motel room. [ 8 ] The group travelled to a rural location near Edmonton. Laboucan had sex with Meyer, and then Laboucan and the Applicant beat Meyer to death. [ 9 ] Meyer’s body was recovered on May 6, 2005.

Several years later Laboucan’s DNA was identified from Meyer’s body. B. Courtepatte [ 10 ] The Crown’s theory is that on April 3, 2005, Laboucan and Bird invited Courtepatte and a female friend to a rave. No such rave existed; that story was a ruse. This group met with the Applicant, Michael Williams [“Williams”], and a young female named D.D.T. [“D.D.T.”]. Together, they travelled to an Edmonton area golf course in Bird’s car, with the Applicant driving the vehicle. [ 11 ] The group led Courtepatte onto the golf course, where Bird attacked her.

Courtepatte was then sexually assaulted by at least Williams and Laboucan, and then she was assaulted and killed by Williams, Laboucan, and D.D.T. The group, including Courtepatte’s friend, then returned to the motel room that the Applicant and Bird shared. [ 12 ] Laboucan showed Courtepatte’s friend and D.D.T. a severed human finger, which Laboucan claimed was from a past victim, namely, Meyer. [ 13 ] Courtepatte’s body was recovered the following day. C. Previous Court Proceedings [ 14 ] Courts have confirmed certain aspects of the Crown’s theory of the Courtepatte offences.

Various participants in Courtepatte’s murder have already been tried and found guilty. Williams pled guilty to first degree murder of Courtepatte: R. v. M.B.W. , 2007 ABPC 292 , aff’d 2008 ABCA 317 , 437 A.R. 325. Bird was originally convicted of kidnapping, sexual assault and manslaughter ( R. v. S.R.B. , 2007 ABQB 289 , 416 A.R. 223); on appeal to the Supreme Court of Canada that manslaughter conviction was changed to first degree murder: R. v. Bird , 2009 SCC 60 , [2009] 3 S.C.R. 63. Laboucan was convicted of kidnapping, aggravated sexual assault, and the first degree murder of Courtepatte: R. v.

Laboucan , 2010 SCC 12 , [2010] 1 S.C.R. 397. D.D.T. was found guilty of aggravated sexual assault and second degree murder: R. v. D.D.T. , 2008 ABQB 533 , 78 W.C.B. (2d) 743, aff’d 2010 ABCA 365 , leave to appeal filed on March 2, 2011. [ 15 ] The Crown has charged Laboucan separately with Meyer’s murder. A preliminary inquiry was held and Laboucan’s trial is scheduled for later in 2011. III. The Law

[16] Criminal Code s. 591(1) gives the Crown discretion to group criminal charges against one or more accused. That authority issubject to a number of statutory and other limitations, some of which this Court will discuss in this section. [17] The court has the authority to order that co-accused be tried in separate proceedings (Criminal Code, s. 591(3)(b)), or thatmultiple charges against a single accused be addressed in different and separate trials (Criminal Code, s. 591(3)(a)).

The Applicant’sapplication relates to the latter scenario. [18] Like all legislation, courts must interpret the Criminal Code as a whole. E. A. Driedger in Construction of Statutes (2nd ed.1983) at 87 says, “the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniouslywith the scheme of the Act, the object of the Act, and the intention of Parliament.” See also Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 at para. 21, 154 D.L.R. (4th) 193 and most recently R. v. Ahmad, 2011 SCC 6 at para. 28. A. Criminal Code s. 589 - Joining Murder and Non-Murder Offences [19] Criminal Code s. 591(1) opens with the words, “Subject to

section 589 ...” Because of the seriousness of a charge of murder, aperson who is charged with committing a murder is treated in a distinct manner, when potentially charged with other offences. [20] Subject to two provisoes, Criminal Code s. 589 prohibits the Crown from charging a person with both murder and non-murderoffences and having those offences appear in the same indictment. It says: 589. No count that charges an indictable offence other than murder shall be joined in an indictment to a count that charges murderunless (

a) the count that charges the offence other than murder arises out of the same transaction as a count that charges murder; or (

b) the accused signifies consent to the joinder of the counts. [21] Criminal Code s. 589(

b) does not apply in this case. Thus, the Crown may include other non-murder offences in theindictment only if they arise out of “the same transaction” as the murder. In R. v. Paré, (SCC), 1987 CarswellQue 19,[1987] 2 S.C.R. 618, 45 D.L.R. (4th) 546, Wilson J. described a murder and indecent assault as being part of the same transaction: 69 The murder represents an exploitation of the position of power created by the underlying crime and makes the entire course ofconduct a "single transaction". … 71 The murder was temporally and causally connected to the underlying offence.

It formed part of one continuous sequence ofevents. It was part of the same transaction. [Emphasis added.] [22] More recently, the Supreme Court of Canada in R. v. Pritchard, 2008 SCC 59 at para. 28, [2008] 3 S.C.R. 195, confirmed amurder had occurred as part of the same transaction as criminal harassment by a former spouse. Binnie J., referring to R. v. Bradley,2003 PESCTD 30, 223 Nfld. & P.E.I.R. 225, seems to suggest a broader approach to the meaning of “same transaction,” when theoffences emerge from a common context: 28 ...

The court held that the accused's entry into the doorway (while "growling" with his arms over his head) constituted criminalharassment, especially in light of the couple's "highly abusive relationship" in which he had previously stalked and threatened to kill her.The harassment was separate from the murder while still forming part of the same transaction with the killing. [Pinpoint references

excluded.] [23] While the “same transaction” component of Criminal Code s. 589 is well established, two other aspects of this provisiondeserve further examination and comment: (

I) Does Criminal Code s. 589 restrict the ability of the Crown to join two or more murder charges in one indictment? (ii) If a person is charged with more than one murder, do all non-murder offences have to fall within the same transaction as everymurder charge? (

I) Does Criminal Code s. 589 Prohibit Joinder of More than One Murder Charge? [24] The language of Criminal Code s. 589 is arguably silent on this point. Criminal Code s. 589 authorizes the joinder of amurder charge with another indictable offence. But, does the phrase “no count that charges an indictable offence other than murder”mean, (

a) a count that charges a non-murder indictable offence, or (

b) a murder? [25] As this Court pointed out to counsel during argument, these alternatives devolve to a question of punctuation. Should thisphrase be interpreted as, (a) “no count that charges an indictable offence other than murder” or (b) “no count that charges an indictableoffence, other than murder,”? [26] This Court concludes that the proper

interpretation of Criminal Code s. 589 is that it authorizes a joint trial of more than onemurder charge, and that there is no requirement that those murders arise out of the “same transaction.” This conclusion flows from anumber of observations, but essentially conforms to the central principle of statutory

interpretation; the language of the Criminal Codeshould be interpreted to give effect to its objective. [27] First, there is little question as to why, historically, courts have not tried murder charges along with non-murder charges. Asnoted above, because of the seriousness of a murder charge, a joint trial with non-murder charges runs the risk of propensity reasoningby the trier of fact: e.g. R. v. Arp, (SCC), [1998] 3 S.C.R. 339 at para. 40, 166 D.L.R. (4th) 296; R. v. B. (C.R.), (SCC), [1990] 1 S.C.R. 717 at para. 63,107 N.R. 241.

Another way of expressing this is that most criminal activity does nottend to be relevant as to whether a person is a murderer. Any such criminal activity is more prejudicial than probative. [28] Second, multiple murder trials do occur. In R. v. Haase, (BC CA), 1964 CarswellBC 181 (eCarswell),[1965] 2 C.C.C. 56 (B.C.C.A.), aff’d (SCC), [1965] 2 C.C.C. 56 at 123, 45 C.R. 321 (S.C.C.), the accused was triedfor the murder of two teenaged girls. More recently, Cohen J. in R. c. Colalillo, [2005] Q.J. No. 19747 (QL), (S.C.)ordered three murder charges tried together. Similarly, two murders were tried together in R. v.

Butorac, 2010 BCSC 876. In Haase,Davey B.C.J.A. said the following, referring to Criminal Code, 1953-54, ch. 51, s. 499, the pre-1991 equivalent to the current CriminalCode s. 589, and Criminal Code, 1953-54, ch. 51, s. 501(1), the predecessor to Criminal Code s. 591 (cited to CarswellBC): 2 The appellant was charged and tried upon two counts of capital murder. ... I am of the opinion that the joinder is authorized by theCode.

Sec. 499 prohibits the joinder of a count charging an offence other than murder with a count charging murder, but it does notexpressly prohibit the joinder of two counts, each charging murder. By sec. 501(1), subject to sec. 499, any number of counts for anynumber of indictable offences may be joined in the same indictment, but the court may order that the accused be tried separately on oneor more of the counts. ... 4 ... In my opinion, the Code permits such a joinder, and it is a matter of judicial discretion whether the two counts should be tried

on one indictment, or the counts should be severed. [Emphasis added.] [29] The British Columbia Court of Appeal judgment in Haase was subsequently approved en toto and without analysis by theSupreme Court of Canada. See also R. v. Parker (1981), (ON SC), 23 C.R. (3d) 282, 7 W.C.B. 458 (Ont. H.C.J.). [30] In R. v. Khan (1996), (MB CA), 110 Man. R. (2d) 241 at para. 45, 108 C.C.C. (3d) 108 (Man.

C.A.), aff’don other grounds 2001 SCC 86, [2001] 3 S.C.R. 823, the Court referred to Haase and similarly concluded that joint trial of more thanone murder was authorized by the current Criminal Code s. 589. [31] Finally, this Court sees no indication that Parliament intended to remove the possibility of a joint trial of murder charges whenit amended Criminal Code s. 589 to allow joinder of non-murder indictable offences in 1991: see R. v. Beausoleil (1997), 35 O.T.C. 255at paras. 10-12, 35 W.C.B. (2d) 382 (Ont. Ct. (Gen. Div.)); R. v. Choy, 2008 ABQB 697 at paras. 12-13, 456 A.R. 196.

That, too, isconsistent with a purposive

interpretation of the Criminal Code joinder and severance provisions. [32] This Court therefore concludes that Criminal Code s. 589 does not restrict in any manner a trial on more than one murdercharge contained in one indictment. (ii) Must All Non-Murder Offences Fall Within the Same Transaction as Every Murder Charge? [33] The second question is simply a matter of statutory

interpretation. This Court concludes that Criminal Code s. 589(

a) requiresonly that the non-murder offences be ‘linked’ with any one murder charge as part of the same transaction. The language of that sectionrefers to “a count that charges murder” not, “every count that charges murder” [emphasis added]. B. Criminal Code s. 591(3)(a) - Joining Murder and Non-Murder Offences [34] While Criminal Code s. 589 prohibits joinder of certain offences with a charge of murder, Criminal Code s. 591(3)(a)provides a broader and conditional authority on the court to order separate trial of two or more charges: 591(3) The court may, where it is satisfied that the interests of justice so require, order (

a) that the accused ... be tried separately on one or more of the counts; … [Emphasis added.] [35] This authority continues from before a trial through to its conclusion: Criminal Code s. 591(4). The applicant has the onus ofproving that severance is appropriate on a balance of probabilities. A decision to have two or more charges tried separately or together isin the presiding trial judge’s discretion, and involves a multi-factoral analysis: R. v. Litchfield, (SCC), [1993] 4 S.C.R.333 at 353-54, 86 C.C.C. (3d) 97; R. v.

Last, 2009 SCC 45 at paras. 1, 14, [2009] 3 S.C.R. 146. [36] The question as to whether the interests of justice are served by charges against an accused being tried together or separately,requires a judge to weigh and balance a range of considerations: Last at para. 17. In Last at para. 18, Deschamps J. identified a numberof factors that may be relevant when a judge considers a severance application: 1. the general prejudice to the accused;

2. the legal and factual nexus between the counts; 3. the complexity of the evidence; 4. whether the accused intends to testify on one count but not another; 5. the possibility of inconsistent verdicts; 6. the desire to avoid a multiplicity of proceedings; 7. the use of similar fact evidence at trial; 8. the length of the trial having regard to the evidence to be called; 9. the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and 10. the existence of antagonistic defences as between co-accused persons The last factor is not relevant for this particular application. [ 37 ] No factor is determinative, though in Last at para. 27 , the court stressed that if an accused intends to testify on one count but not another, then that fact deserves significant weight.

IV. Analysis [ 38 ] This Court agrees with Veit J.’s approach in R. v. Giroux , 2002 ABQB 532 , 318 A.R. 201, that it should first evaluate whether the non-murder charges are part of the same transaction as either of the alleged murder charges. If this Court concludes that that is the case, then it will continue to evaluate whether the interests of justice ( Criminal Code s. 591(3)) require that any remaining joined charges ought to be severed. A.

Criminal Code s. 589 - Are the Three Courtepatte Charges Part of the Same Transaction ? [ 39 ] The Crown and the Applicant disagree on whether the kidnapping, aggravated sexual assault, and Courtepatte murder are part of the same transaction. The Applicant argues that the narrative that the Crown provided indicates three independent offences, though they occur one after another. [ 40 ] The Crown, however, notes that these three alleged offences involve the same parties and form an escalating process of control and abuse.

It stresses that the kidnapping offence continued from Courtepatte’s abduction until her death and that she was always under the control of those who committed the offences against her, including the Applicant. Furthermore, the plan and objective of that group involved all three offences; they intended to find a girl, take her to an isolated location, sexually assault and kill her.

[ 41 ] This Court finds that the offences of kidnapping, aggravated sexual assault and murder arise out of the same transaction. The offences are connected by a common causative scheme, and occurred as a continuous or overlapping sequence: Paré , supra . [ 42 ] This Court therefore concludes that grouping the three Courtepatte offence counts fall within the proviso contained in Criminal Code s. 589(a). What now remains is whether the interests of justice require those charges should be tried separately. B.

Criminal Code s. 591(3) (a) - Severance of the Courtepatte Charges [ 43 ] The Applicant argues that a common trial of the Courtepatte charges risks prejudice to him. The multiplicity of charges risks prohibited predisposition reasoning and the different offences have complicated legal components, which create undue complexity. [ 44 ] The Crown disagrees. It argues that complexity is less an issue, as this trial will likely be heard by a judge alone. In any case, the risk of propensity-based analysis is minimal due to the tight factual and temporal integration of the various alleged offences.

Judicial economy suggests these proceedings should be merged, particularly in the light of the large number of witnesses and the large amount of technical and expert evidence. The Crown estimates that it will call about 100 witnesses. [ 45 ] The Crown further argues that there are significant advantages to a trial on all counts.

It argues that the same facts and circumstances are before the court, the same witnesses will testify, a trial on all counts reduces the probability of inconsistent verdicts, and overall a trial on all counts would be an efficient use of court resources and respect the right of the Applicant to a timely resolution of the criminal charges that he has faced for over six years. [ 46 ] The Crown also notes that the very nature of the charges against the Applicant makes a trial on all counts not simply efficient and just, but effectively necessary. The Applicant faces a charge of first degree murder.

First degree murder can arise when a person engages in a number of different and alternative scenarios: 231(1) Murder is first degree murder or second degree murder.

(2) Murder is first degree murder when it is planned and deliberate. …

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections: … (

d) section 273 ( aggravated sexual assault ); (

e) section 279 ( kidnapping and forcible confinement ); … [Emphasis added.] [ 47 ] The Crown argues that it intends to prove that the Applicant is guilty of first degree murder through Criminal Code s. 231(5) (d), Criminal Code 231(5)(e), or both. That means that the trier of fact will necessarily have to consider the elements of aggravated sexual assault or kidnapping and forcible confinement or both, in its determination on the murder charge.

[ 48 ] This Court finds that the shared legal and factual matrix among the alleged Courtepatte offences favours joinder of the Courtepatte kidnapping, aggravated sexual assault, and murder charges. These offences flow from the same facts, involve the same persons, and occurred over a period of a few hours. [ 49 ] Further, the offences are logically relevant to one another. In Choy , Marceau J. severed a number of charges that alleged abuse and neglect of a child because those alleged offences were “temporally and operationally distinct” (paras. 27-30).

Here, the opposite is true; these offences together explain a tragic progression of events. [ 50 ] In addition, severance is inappropriate where certain alleged charges are, effectively, components of other charges. Severing the kidnapping and aggravated sexual assault charges undercuts the Crown’s capacity to prove the first degree murder charge.

The interests of justice cannot be met where separate trials of charges operationally prohibit the Crown from proving a criminal charge. [ 51 ] There may be circumstances where the interests of justice would require that approach, but that is certainly not the case for the Applicant. This Court therefore concludes that the interests of justice require that the Applicant be tried for the three Courtepatte offences in a single trial. C. Criminal Code s. 591(3) (a) - Severance Courtepatte Charges and the Meyer Charge [ 52 ] The remaining issue is whether the Meyer and Courtepatte charges require separate trials.

The Applicant argues that this Court should order severance for the same reasons identified in the Courtepatte Criminal Code s. 591(3)(

a) analysis, but also argues that the two murders are separate and distinct; one did not cause the other. The Applicant argues that his alleged role in the murders is quite different. In Meyer, he was an active participant. In Courtepatte, he was more of a bystander. [ 53 ] Further, he stresses that he has not had the opportunity to test or evaluate the Crown’s case in a preliminary inquiry. [ 54 ] Importantly, the Applicant has emphasized that a common trial of the two murders (and associated lesser offences) would impede his ability to testify in his own defence.

The Applicant suggests that he plans to testify to rebut the anticipated evidence of Bird in relation to the Meyer murder, but would not testify in relation to the Courtepatte offences. [ 55 ] The Crown argues that the facts of the alleged offences are closely related. Many of the same parties are involved, witnesses who testify in a separate Meyer proceeding would also be involved a distinct Courtepatte trial.

The offences happened only two days apart. [ 56 ] Further, the Crown argues that the similarities between the two murder scenarios are sufficient that it intends to make a ‘similar fact’ argument; that proof of one offence supports the probability that the other occurred as described. If this Court were to order the murder charges tried separately, the Crown emphatically states that it would seek to have evidence of one murder admitted into the trial of the other.

The Crown argues that the strong factual parallels and common parties allegedly involved in both murders means that there is a strong basis to expect that similar fact evidence would be admissible. [ 57 ] In Last at para. 18 , Dechamps J. notes that “the use of similar fact evidence at trial” is relevant for a s. 591(3) (

a) severance application. To be clear, that factor does not mean that a severance application requires the Crown now to conduct an application to test admissibility of evidence on a similar fact basis: R. v. Handy , 2002 SCC 56 , 164 C.C.C. (3d) 481. Rather, the Crown may indicate that it plans to admit evidence on a similar fact basis, in a manner analogous to how the Applicant may indicate he plans to testify in relation to some, but not all, charges: Butorac at paras. 56-60 .

If the alleged factual matrix reasonably supports a similar fact analysis then that favours a joint trial of the charges. [ 58 ] Here, the Crown characterizes the two murders (and associated offences) as being similar, and thus admissible on a ‘similar fact’ basis. One could also view the two murders as one, ongoing process in which the same group of persons engage in repeated similar scenarios. If so, then any evidence in relation to one murder would be relevant and directly probative of the other. In a sense, that

distinction is irrelevant at this stage. When viewed in either context, the common features and participants in the Meyer murder andCourtepatte offences favour a joint trial. These offences are interrelated. [59] The issue in this case is not identification, but the actus reus of the offences. The court in Handy at para. 78, cited withapproval the statement from R. v. Carpenter (1982), (ON CA), 142 D.L.R. (3d) 237 at 244 (Ont. C.A.), which said: The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to beintroduced and the other evidence.

This Court finds that the Meyer murder and the Courtepatte offences appear linked and show important parallels. Each is potentially veryrelevant to the other. In other words, this kind of evidence is more likely to be probative than prejudicial. [60] The Applicant informed this Court that he might testify in a separate trial of the Meyer murder, but he will not testify in anytrial of the Courtepatte offences. Thus, he argues that he would be prejudiced if this Court did not grant his severance application. TheCrown stressed that there must be an objective basis for the Applicant to testify: Last at para. 26.

The Crown argues it would be verydifficult for this Court to bifurcate the Applicant’s testimony. For example, the Meyer murder will involve testimony of persons whowere involved in the Courtepatte murder and, who, after that event, saw Meyer’s severed finger. Similarly, the events of the Meyermurder would be highly relevant to the Applicant’s mens rea in relation to the Courtepatte murder and his claim that he had no reason toexpect that event. [61] The Applicant’s stated intention to testify on one count but not another is a fact that deserves significant weight.

However, itis not determinative of a severance application: Last at para. 27. This Court must decide whether that stated intention is objectivelyjustifiable or, even if it is, whether this stated intention is outweighed by other factors that show that the interests of justice require a jointtrial. Last at para. 26, reminds us that “[t]he burden on the accused is to provide the trial judge with sufficient information to convey that,objectively, there is substance to his testimonial intention.” The Applicant has not satisfied this burden.

The facts of the Courtepatteoffences and the Meyer murder are too intertwined for the Applicant's testimony to be effectively bifurcated. [62] This Court rejects the Applicant’s argument that the absence of a preliminary inquiry causes prejudice that favours thesecharges being tried separately. Deschamps J. in R. v. S.J.L., 2009 SCC 14 at paras. 21-23, [2009] 1 S.C.R. 426 provides a usefuloverview of the constitutionality of trial by direct indictment and the role of a preliminary inquiry: ... [T]here is no constitutional right to a preliminary inquiry or to the outcome of such an inquiry ...

Similarly, although the preliminary inquiry may also allow an accused to test the credibility of witnesses and better appreciate theCrown’s evidence ... such incidental benefits do not give rise to a constitutional right to this proceeding ... Moreover, since [R. v.

Stinchcombe (SCC), 1991] 3 S.C.R. 326 and subsequent jurisprudence] an accused has had aright under the Constitution to the disclosure of all relevant information that is distinct from the right to a preliminary inquiry. ...Consequently, the incidental function of the preliminary inquiry as a discovery mechanism has lost much of its relevance. [Emphasis added, citations omitted.] [63] Efficiency would be served by this Court joining these charges.

The present case is the opposite of the scenario in Last, whereDeschamps J. at paras. 41-42 observed that the charges in that case shared almost no common witnesses, and similar fact was unlikely tobe involved. Nor are there complainants whose testimony may be spuriously reinforced (Last at para. 40). Here both complainants aredead. [64] While efficiency should not be a reason to compromise the ability of an accused to make a full answer and defence, there islittle practical possibility that these two murders can be effectively or efficiently severed. In particular, even if the Applicant were to

testify in response to Bird’s evidence in relation to the Meyer murder, there is no practical way to restrict his testimony to the events that allegedly link him to that murder. [ 65 ] In Last at para. 44 , the court concluded severance was the appropriate remedy: ... [A] joint trial in the circumstances of this case did not serve any truth seeking interest, and brought few if any benefits to the administration of justice. [ 66 ] That is not the situation in the case with which this Court is dealing. The Meyer murder and the Courtepatte offences are linked; evidence in each is relevant to the other.

Truth-seeking will benefit from a single trial. Similarly, the administration of justice is assisted by the Applicant being tried in a timely and efficient manner. The interests of justice are best achieved by the Meyer murder and the Courtepatte charges being tried together in a single proceeding. V. Conclusion [ 67 ] This Court denies the Applicant’s application. The Applicant has failed to meet his onus.

All four charges against the Applicant contained in the May 31, 2010 indictment will be tried together. [ 68 ] As this Court noted during counsels’ oral submissions, this decision does not exhaust the Applicant’s opportunity to make a further application to sever some of the charges. He may make further severance applications where new circumstances arise during the trial process that warrant a re-examination of this issue. Heard on the 28 th day of February, 2011. Dated at the City of Edmonton, Alberta this 10 rd day of March, 2011. K.D. Yamauchi J.C.Q.B.A. Appearances: John D.

Watson Mega Prosecutions Alberta Justice and Attorney General

for the Crown (Respondent) David R. Willson for the Accused (Applicant) _______________________________________________________ Corrigendum of the Reasons for Judgment (Pre-trial Severance Application) of The Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ The publication ban previously in effect in this matter was rescinded per the court order of February 24, 2012 by The Honourable Mr. Justice K.D. Yamauchi. Restriction on Publication: These Reasons for Judgment are subject to a court-ordered publication ban.

The materials filed in this application, the submissions of counsel, and these reasons for judgment may not be published, broadcast, or transmitted in any manner. The publication ban extends to any reports of breaches of this publication ban, and to any report of the terms of the publication ban contained within these reasons.

_______________________________________________________ Corrigendum of the Reasons for Judgment (Pre-trial Severance Application) of The Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ Paragraph [61] was changed to read the following: [61] The Applicant’s stated intention to testify on one count but not another is a fact that deserves significant weight. However, it is not determinative of a severance application: Last at para. 27 .

This Court must decide whether that stated intention is objectively justifiable or, even if it is, whether this stated intention is outweighed by other factors that show that the interests of justice require a joint trial. Last at para. 26 , reminds us that “[t]he burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention.” The Applicant has not satisfied this burden. The facts of the Courtepatte offences and the Meyer murder are too intertwined for the Applicant's testimony to be effectively bifurcated.