R. v. Bain and Parslow Date:, 2013 BCPC 369

Citation: R. v. Bain and Parslow Date: 20131002 2013 BCPC 0369 File No: 194168-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT GEORGE BAIN and JEFFREY WILLIAM PARSLOW RULING ON APPLICATION OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: Federal Crown: T. Ferreira Counsel for the Defendant: C. McLeod

Place of Hearing: Surrey , B.C. Date of Hearing: September 30, 2013 Date of Judgment: October 2, 2013 [ 1 ] THE COURT : Robert George Bain and Jeffrey William Parslow are jointly charged on Count 1 of Information 194168-1, that on May 9, 2011 at Surrey, British Columbia, they unlawfully possessed cocaine for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act. [ 2 ] Mr. Bain is charged alone on a second count on that Information. [ 3 ] This is my ruling on Mr. Parslow's application pursuant to s. 591(3) of the Criminal Code that he be tried separately from Mr.

Bain in respect of Count 1, allowing him to take advantage of trial dates previously set for December 10 through 12, 17 and 18 of 2013. Mr. Bain's trial will not proceed on those dates as originally scheduled because his counsel is unavailable at that time; he is convalescing from knee surgery. [ 4 ] On August 21, 2013, Judge Gillespie heard Mr. Bain's application for an adjournment of his trial and granted that application. [ 5 ] Mr. Parslow wishes his trial to proceed expeditiously on the original trial dates in December. He does not want to wait to later dates soon to be set in order to accommodate Mr.

Bain's desire to be represented by counsel of his choice. [ 6 ] The Crown opposes the severance application. [ 7 ] I understand the allegations are that about 149 kilograms of cocaine was brought into Saskatchewan from Montana. The cocaine was intercepted by investigators who arranged for a substitute substance to be delivered to an address in Surrey. The two co- accused, it is alleged, were arrested as they were in the process of recovering that substance from a place of concealment on a pickup truck.

The Crown will assert the two co-accused were involved in a joint enterprise and both were in possession of the cocaine for the purpose of trafficking. [ 8 ] The charges were laid August 8th of 2012. Initially both accused were represented by Russ Chamberlain, Q.C. Subsequently, Tony Serka, Q.C., became counsel for Mr. Parslow. On December 6th of 2012, the matter was set for a five-day trial in December of 2013.

The trial time estimate is based on an agreement by counsel to admit a large volume of surveillance evidence and to focus the trial on a challenge to the admissibility of the evidence that was seized. [ 9 ] On Mr. Bain's application to adjourn the trial dates, I am informed Mr. Serka for Mr. Parslow took no position. I am told he said he thought it was reasonable. However, the situation is complicated by Mr. Serka's own circumstances; he is retiring at the end of 2013 and would no longer be available to act for Mr. Parslow on the new dates.

In those circumstances, although granting the adjournment, Judge Gillespie retained the December dates in the event Mr. Parslow, with new counsel, applied for severance. [ 10 ] After several appearances before me as the assigned trial judge for the December dates, Mr. Donaldson replaced Mr. Serka. As it turns out, he is available for those five dates in December. Mr. Parslow wishes the matter to proceed on those December dates and so the severance application was brought. I note here that the application is made without specific acknowledgement by new counsel that the admissions agreed to by Mr.

Serka at an earlier time would continue. [ 11 ] Beyond asserting his wish to be tried on those December 2013 dates, and reference to his Charter right to be tried in a reasonable time, no other submissions are made by Mr. Parslow or his counsel, and no material was filed on the application. [ 12 ] The basis to consider a severance application is set out in s. 591(3) of the Criminal Code which states: The court may, where it is satisfied that the interests of justice so require, order (

a) that the accused or defendant be tried separately on one or more of the counts; and (

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. [ 13 ] On a severance application, the burden is on the accused seeking severance to demonstrate on the balance of probabilities that it is in the interests of justice that severance be granted. In a case called R. v. Punko 2008 BCSC 365 , Mr. Justice Groberman stated the following at paragraph 11: It is common ground that in the first instance it is up to the Crown to decide whether or not to join counts or accused persons in a single indictment.

The court will order severance pursuant to s. 591 of the Criminal Code where it is satisfied on the balance of probabilities that it is in the interests of justice to do so. And citations are provided. Where accused persons are charged with conspiracy or other joint enterprise crimes, it is well established that separate trials for alleged co-conspirators are the exception, not the rule.

[14] That final phrase is quoted from R. v. Chow, 2005 SCC 24 , [2005] 1 SCR 384 and R. v. Pereira 2007 BCSC 1315, thefirst decision in the Supreme Court of Canada 2005, and Pereira is a British Columbia Supreme Court decision in 2007 which I nowrefer to, a decision of Judge Romilly of that court where he stated at paragraph 7 the following: There is a strong presumption that persons engaged in a common criminal enterprise should be jointly tried unless an accused candemonstrate that a joint trial would result in an injustice to him. And he referred to several decisions.

He then continued: Strong policy rationales underlie this presumption. According to Crawford... (which is a Supreme Court of Canada decision of 1995) …and R. v. Chow, (a Supreme Court decision in 2005) at paragraph 47, the policy rationales that favour joint trials include: • The full truth is more likely to emerge with a joint trial; • Separate trials create the risk of inconsistent verdicts; and • Separate trials involve greater expense and delay. (R. v. Crawford, (SCC), [1995] 1 SCR 858 at para. 31; R. v.

Chow 2005 SCC 24 at para. 48) [15] Courts have recognized that the right of an accused to be tried in a reasonable time is a factor to be considered on a severanceapplication. However, the interest of one accused in a speedy trial will not always lead to an order for severance in circumstances suchas are before me in this matter. [16] In a case called R. v.

Koruz in 1992 in the Alberta Court of Appeal, that court noted the following at page 419: Although the right to trial within a reasonable time is an individual right, one cannot ignore the practicalities of what is involved in theCrown's prosecution of a conspiracy case. The mere fact that an accused has been charged with conspiracy does not confer upon himsome inherent advantage in asserting a claim for a s. 11(

b) breach if and when one of his co-defendants causes a delay in theproceedings. To suggest severance as a simple solution ignores the very real cost to the Crown and the public involved in prosecutingseparate actions: And citations are provided, and that is the end of the quote. [17] There is no application before me alleging a breach of Mr. Parslow's right to a trial within a reasonable time. There is noevidence before me that he will suffer prejudice should his trial be adjourned, with Mr. Bain, to a later date.

No other factual detail hasbeen put forward on his behalf, thus there is no basis for me to conclude that the strong presumption favouring a joint trial where theCrown asserts these two co-accused were involved in a joint enterprise, should be set aside and severance granted. There is no argumentpresented that the concerns expressed by courts about separate trials can be overcome here. [18] In these circumstances, the considerations which favour a joint trial continue to apply. Mr.

Parslow has not shown, on thebalance of probabilities, that the interests of justice favours severance. [19] The application for severance is denied and I will confirm the adjournment of the December trial dates in respect of bothaccused, and the matter will now be reset for a joint trial. (RULING CONCLUDED)