R v Hermkens, 2021 ABQB 186

Court of Queen’s Bench of Alberta Citation: R v Hermkens, 2021 ABQB 186 Date: 20210310 Docket: 191084375Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Christopher Andrew Hermkens and Mark Emile Dewitt Moran Defendants _______________________________________________________ Ruling on an Application to be Tried Separately from a Co-Accused of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [ I delivered the following ruling orally, reserving the right to add citations and quotations and to make minor stylistic and grammatical changes. ] [ 1 ] Mr.

Moran and Mr. Hermkens are jointly charged with first degree murder and some additional counts. [ 2 ] Mr. Moran has applied under s. 591(3) of the Criminal Code to be tried separately on the murder count and the other counts and to be tried separately from Mr. Hermkens on the murder count. Mr. Hermkens did not apply for a separate trial and took no position in the application. [ 3 ] The Crown agreed to sever and stay the non-murder counts against Mr. Moran and, although he did not apply for severance

of counts, against Mr. Hermkens as well. Each, then, shall face only the first degree murder count at trial. [4] In his application, Mr. Moran referred to ss. 7, 11(d), and 24(2) of the Charter. However, these references wereaccompanied by no argument and no description of evidence that might support claims under these provisions distinct from theapplication for separate trials issues. Any stand-alone claim under the Charter is dismissed. [5] I view the Charter references as characterizing Mr. Moran’s arguments for a separate trial.

In effect, he contends that aseparate trial would respect his right to full answer and defence (s. 7) and to a fair trial (s. 11(d)). [6] The sole issue, then, is whether Mr. Moran and Mr. Hermkens should be tried separately on the first degree murder count orwhether they should remain jointly tried. I.

Jurisdiction [7] As Case Management Justice, I have authority to hear this application under s. 551.3(g)(vi) of the Criminal Code, that is,notwithstanding R v Litchfield, (SCC), [1993] 4 SCR 333, Iacobucci J at 353 (on the historical Alberta practice thataligns with the post-Litchfield Criminal Code case management amendments, see R v Deol, , 51 CCC (2d) 40, KeransJ, as he then was). II. Principles [8] Section 591(3)(

b) of the Criminal Code provides as follows:

(3) The court may, where it is satisfied that the interests of justice so require, order ... (

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.[emphasis added] A. General Rule 1.

Presumption of Joint Trial [9] The general rule is that accuseds charged with the same offences arising from the same events, as when they are alleged tohave been acting together, should be jointly tried: R v Crawford, (SCC), [1995] 1 SCR 858, Sopinka J at paras 30-31;R v Chow, 2005 SCC 24 at paras 10, 47; R v Sciascia, 2017 SCC 57 at para 33; R v Quiring, , 19 CCC (2d) 337 (SKCA) at para 48 (cited to CanLII); R v Zvolensky, 2017 ONCA 273 at para 24; R v Torbiak and Gillis (1978), (ONCA), 40 CCC (2d) 193 (ON CA) at 199; R v RK, 2016 BCSC 1348, Donegan J at para 43.

In R v Savoury, , 200CCC (3d) 94 (ON CA) at para 22 (cited to CanLII), Justice Doherty referred to this rule as “the presumption that co-accused who arejointly charged and are said to have acted in concert, should be tried together:” see also R v Ny and Phan, 2016 ONSC 8031, Fairburn J,as she then was, at para 42; R v Agarwal, 2007 ABQB 775, Bielby J, as she then was, at para 19; R v Steinhubl, 2009 ABQB 115,Bielby J at para 35; R v Millard, 2017 ONSC 4030, Code J at para 39; R v Singh, 2018 ONSC 1533, Durno J at para 47. [10] A single trial avoids the potential for inconsistent verdicts, the inconvenience for witnesses and expense that arise frommultiple proceedings, trial delay for at least one of the separate trials – especially given Jordan concerns – and strains on resourcesbecause of the Covid pandemic: see R v Hubler, 2013 ABCA 31 at para 36; R v Lemioer, 2019 SKCA 95 at para 60; R v Richards,2012 SKCA 120 at para 42; Singh at para 50; Ny and Phan at para 46; RK at paras 86-87.

Moreover, a single joint trial enhances thetruth-seeking functions of trial, since “the full truth about an incident is more likely to emerge if every alleged participant gives his or heraccount on one occasion,” particularly if one accused alleges the other is the guilty party or the accuseds’ accounts are inconsistent:Crawford at para 30; Hubler at para 36; Agarwal at para 20; RK at paras 85, 88-89; Savoury at paras 22, 25; R v Suzack, , 141 CCC (3d) 449 (ON CA), leave app refd [2000] SCCA No 583 at para 88 (cited to CanLII): It is axiomatic that the truth of an allegation is best tested through a process which requires the accuser to confront the accused with theallegation and gives the accused a chance to respond to the allegation.

If co-accused who are blaming each other for a crime are allowedto do so in separate trials, neither jury will have the benefit of that process. If the accused are tried separately, it is highly unlikely thateither jury will hear the complete story. 2. Rebutting the Presumption [11] However, as s. 591(3)(

b) contemplates, separate trials may be ordered “where [the court] is satisfied that the interests ofjustice so require.” [12] The burden of proof is borne by the moving party, typically an accused, to establish on a balance of probabilities thatseverance is required in the interests of justice: R v Nurse-Daniels, 2018 ONSC 686, McArthur J at para 7; Savoury at para 22; Agarwalat para 18; Steinhubl at para 34; RK at para 42. [13] The judge’s determination of whether or not to order separate trials is discretionary: Quiring at paras 43, 45, 47; Agarwal atpara 17; Singh at para 45; Millard at para 39. [14] Through the exercise of discretion, the judge is to balance the interests of the accused and the public interest in justice:

Quiring at para 47; R v Last, 2009 SCC 45 at para 17; Singh at paras 45-46; Agarwal at paras 15-16; Steinhubl at para 33; RK at para41. According to Justice Doherty in Savoury at para 22, “[t]he interests of justice encompass those of the accused, the co-accused, andthe community as represented by the prosecution.” Both the accused’s interest and the public interest bear on whether a joint trial wouldor would not be in the interests of justice: Last at para 16; Ny and Phan at para 43; R v Unger, , 83 CCC (3d) 228(MB CA) at 44.

The judge must consider and weigh all relevant factors cumulatively: Last at para 44. [15] The accused’s interests focus on a fair trial and making full answer and defence: RK at para 41; Savoury at paras 29 and 38. [16] The public interest concerns not only procedural efficiency but the promotion of truth-seeking. Justice requires anappropriately comprehensive evidential and factual foundation: Last at para 17. A just result depends on getting the facts right.

Further,the public interest in justice extends to ensuring that an accused’s trial is not unjust. [17] The primary issue, a necessary but not sufficient condition for separate trials, is that the applicant accused shows that the jointtrial may work an injustice. Countervailing public interest factors are set against that showing and the judge determines whether or notthe balance favours separate trials, again, with the applicant bearing the risk of non-persuasion: see Savoury at para 38 (as to whetherpublic interest factors may “trump” the accused’s interests in a separate trial).

If the applicant cannot show that the joint trial may workan injustice, the application cannot succeed. The public interest factors must prevail. If the applicant shows that a joint trial would denythe right to a fair trial, that is, if a joint trial would result in injustice (globally considered), the applicant has “rebutted the presumption:”Agarwal at para 21. 3.

Factors Bearing on the Injustice of Joint Trials [18] Factors relevant to whether a joint trial would not be in the interests of justice include the following: • the length and complexity of the trial given the number of accuseds • pre-trial delay occasioned by the number of accuseds and complexity of the trial (as set against an accused’s right to trial within areasonable time) • the legal and factual connections between the Crown cases against the applicant co-accused and other co-accuseds (whether “theirfates were almost inevitably intertwined:” see Zvolensky at para 35) • a significant imbalance in the strength of the Crown’s case against a co-accused as opposed to the case against the applicantaccused (the case against the co-accused is strong and the case against the accused is weak) • the co-accuseds have antagonistic defences (although this factor may also militate in favour of a joint trial to avoid inconsistentverdicts and to avoid incomplete evidential records in each separated trial; and a co-accused’s “cut-throat” defence is not in itselfsufficient to support separate trials: see Crawford at para 31; Suzack at paras 87-91; Millard at para 41; R v Tymchyshyn (C), 2016MBCA 73 at para 71) • significant evidence would not be admissible in a joint trial but would be in a trial of the applicant accused alone • evidence admissible in the joint trial against one co-accused would not be admissible against the applicant accused and misuse ofthe evidence against the applicant accused could not be remedied through a limiting instruction or cured by redaction or by otherwiselimiting the scope of the evidence (see R v McLeod, , 6 CCC (3d) 29 (ON CA); Millard at para 42) • a co-accused, not compellable in the joint trial, would be compellable in a separate trial of the applicant accused and there is areasonable possibility that the co-accused will testify in a separate trial and provide exculpatory evidence – and whether another witnessis available who could testify to the matters that could be testified to by the co-accused (see Agarwal at para 42) • prejudice to the accused emerging during trial (e.g. a co-accused counsel’s address to the jury) • all co-accuseds support the holding of separate trials • while granting an order for separate trials would benefit the applicant accused the order would result in injustice to a co-accused(see Torbiak and Gillis at 199).

See generally R v Weir (No. 4), 1899 CanLII 105, 3 CCC 351 (QC CQ), Würtele J at 352-53; Quiring at para 44; Agarwal at para 22;Steinhubl at para 36; Unger at 41; R v Giesecke, , 13 OR (3d) 533 (ON CA), leave app refd, SCC file no. 23772(February 10, 1994); Last at para 18 (setting out what are sometimes referred to as the “Last factors,” specifically relevant to severingcounts rather than separating trials); Zvolensky at paras 25, 26, 31-32, 33, 35. B.

Potential Evidence from a Co-Accused [19] The factor concerning the compellability of a current co-accused in a separate trial is the focus of the present application. Noother factors supporting a separate trial were engaged. [20] The mere assertion of a desire to call the co-accused in a separate trial does not, by itself, support an order for a separate trial:R v Camara, 2005 BCCA 639 at paras 45-46; RK at para 29; Savoury at para 27; Torbiak and Gillis at 199; R v Agawa and Mallet,1975 CarswellOnt 44, , 28 CCC (2d) 379 at 387 (ON CA); Agarwal at para 41.

Chief Justice Culliton wrote as followsin Quiring at para 46: To hold that a separate trial must be granted when two accused are jointly indicted, merely on the allegation that one may give evidence

in defence of the other, would establish a rule of law where the determination of whether there should, or should not, be separate trialswould no longer be a matter of discretion for the trial judge, but would be determined solely on the wishes of one or other of the accused.The discretionary right of the trial judge in this area should not be so circumscribed. [21] Justice Doherty described the two elements implicit in this ground for separate trials in Savoury at para 28: [28] Where an accused seeking severance contends that his right to make full answer and defence will be prejudiced unless the co-accused can be compelled to testify, two factors must be addressed by the trial judge: • Is there a reasonable possibility that the co-accused, if made compellable by severance, would testify? • If the co-accused would testify, is there a reasonable possibility that the co-accused’s evidence could affect the verdict in a mannerfavourable to the accused seeking severance?

In Torbiak and Gillis at 199, Justice Martin put the second element in this way: “evidence of a co-accused sought to be elicited on behalfof another co-accused is such that, when considered in the light of the other evidence, it might reasonably affect the verdict of the jury bycreating a reasonable doubt as to the guilt of the latter.” [22] At para 29 of Savoury, Justice Doherty provided a reminder that the determination of the effects of this factor remaindiscretionary and require balancing that considers the interests of justice fully: [29] If the accused seeking severance can convince the trial judge that there is a reasonable possibility that the co-accused will testifyand that his testimony could affect the verdict by creating a reasonable doubt as to the accused’s guilt, the trial judge may properly grantseverance.

It is nonetheless open to the trial judge to exercise her discretion against severance if there are other factors of significantcogency that outweigh the potential impairment of the accused’s right to make full answer and defence occasioned by a joint trial. Anaccused is entitled to a fair trial, but not necessarily the ideal trial from the defence perspective: R. v. Cross (1996), (QC CA), 112 C.C.C. (3d) 410 at 419 (Que.

C.A.), leave to appeal to S.C.C. refused 114 C.C.C. (3d) vi. [23] At para 35, Justice Doherty cautioned that if a co-accused’s evidence, considered in the context of the rest of the evidence,could reasonably have left the jury with a reasonable doubt as to [the accused’s] involvement in the robbery, the trial judge was requiredto leave the ultimate assessment of ... credibility and reliability with the jury: see R. v. Buric (1996), (ON CA), 106C.C.C. (3d) 97 (Ont.

C.A.), aff’d (1997), (SCC), 114 C.C.C. (3d) 95 (S.C.C.).” [24] But while the judge is not to engage in his or her own credibility assessment, the judge may find that the proposed evidencecould not reasonably leave the jury with a reasonable doubt. Thus, in Agawa, Justice Martin held that the proposed evidence was“simply not believable” and was “patently unbelievable” when placed alongside the incontrovertible physical and forensic evidence andso did not support ordering a separate trial: Agawa at 387-388; Savoury at para 36. III. Mr. Moran’s Argument [25] Mr.

Moran stated the following in his written argument: The Applicant would be able to compel Hermkens to testify at his trial. Hermkens did not provide a statement to police and could wellprovide evidence that the Applicant was not aware or a party to any intent to kill Dumont or had knowledge of the deadly use of afirearm. [26] The narrative of events accepted by both Mr. Moran and the Crown supports the conclusion that the charges against Mr.Moran and Mr. Hermkens arose out of the same events or transaction that resulted in the death of Ray Dumont. Mr. Hermkens and Mr.Moran were present when Mr.

Dumont was shot – both were near Mr. Dumont. [27] No evidence was tendered in this pre-trial voir dire. Mr. Moran did not rely on an affidavit outlining Mr. Hermkens’ expectedtestimony. He pointed to no statement by Mr. Hermkens or conversation between Mr. Hermkens and himself or a third party. Counseldid not outline evidence expected from Mr. Hermkens based on an interview with him: see Camara at para 46; Agawa at 387; Agarwalat para 43. [28] Mr. Moran satisfied neither branch of the invoked ground for separate trials. He did not show that a joint trial may be unjust. A.

Reasonable Possibility that Co-Accused Will Testify in a Separate Trial [29] It is true that if Mr. Moran and Mr. Hermkens were tried separately, Mr. Hermkens would be a compellable witness in Mr.Moran’s trial. He could be subpoenaed. Mr. Moran, though, identified only a possibility that Mr. Moran may testify, not a reasonablepossibility that Mr. Hermkens will testify. Mr. Moran has offered a mere assertion or offered a mere conclusion without any evidentialfoundation. As Mr. Moran indicated, Mr. Hermkens made no statement to the RCMP. Mr.

Hermkens expressly conveyed through hiscounsel that he does not confirm that he can or will testify as a witness for Mr. Moran. [30] Mr. Moran has not established that it is reasonably possible that Mr. Hermkens will testify if Mr. Moran is granted a separatetrial. B. Reasonable Possibility that Co-Accused’s Testimony Would Affect the Verdict [31] More importantly: Mr. Moran stated that Mr. Hermkens “could well provide” evidence exculpatory of Mr. Moran. “Could”

denotes only possibility. The modifier “well” adds nothing to the foundation for the assertion of possibility. Merely identifying potentialareas that potential testimony could potentially address does not establish a reasonable possibility that Mr. Hermkens would providetestimony tending to show that Mr. Moran (e.g.) lacked a requisite element of mens rea for criminal responsibility for the offence. [32] Mr. Moran referred to the absence of evidence that Mr. Hermkens would inculpate Mr. Moran in any testimony as supportingthe inference that Mr. Hermkens could provide evidence exculpatory of Mr. Moran.

It is true that that inferences may be drawn from theabsence of evidence, as confirmed, for example by R v Lifchus, (SCC), [1997] 3 SCR 320, Cory J at para 36.However, while the absence of evidence may raise a possible inference, the reasonableness of that inference must be assessed in all thecircumstances, on all the evidence. Given the paucity of evidence at this point, again, only the possibility of exculpatory evidence beingprovided by Mr. Hermkens could be founded on the absence of evidence, not the reasonable possibility of exculpatory evidence. [33] Mr.

Moran has failed to provide an evidential foundation for the conclusion that he offers. His assertion about what Mr.Hermkens “could well provide” is only an expression of hope or is only conjecture or speculation: see Agarwal at para 38; Quiring atpara 51. [34] Not only did Mr. Moran fail to show what the content of Mr. Hermkens’ testimony might be, he did not show (and could notshow given the lack of evidence) that Mr. Hermkens’ testimony might reasonably affect a verdict against him by supporting a reasonabledoubt: Agarwal at para 44. [35] If Mr.

Moran could establish that a separate trial were required on the basis of claims that lack evidential support, theseparation of trials of jointly charged accuseds would turn on the mere wishes of accuseds. That is not the law. C. Conclusion [36] In view of my determinations, I need not go on to consider the consequences that would follow if separate trials were ordered,such as the risk of inconsistent verdicts, the expenditure of judicial system time and resources, or Jordan implications. [37] Mr. Moran has failed to satisfy his burden of proof. I do not find that a joint trial of Mr. Moran and Mr.

Hermkens wouldwork an injustice for Mr. Moran or that the interests of justice demand that Mr. Moran be tried separately from Mr. Hermkens. Itherefore dismiss Mr. Moran’s application to be tried separately from Mr. Hermkens. Heard on the 26th day of February, 2021. Delivered on the 26th day of February, 2021. Dated at the City of Edmonton, Alberta this 10th day of March, 2021. W.N. Renke J.C.Q.B.A. Appearances: Dallas Sopko Alberta Crown Prosecutions for the Crown Paul Moreau Moreau & Company for the Defendant (HERMKENS) Raymond Dieno for the Defendant (MORAN)