HMTQ v. Rojas Date:, 2003 BCSC 1061

Citation: HMTQ v. Rojas Date: 20030401 2003 BCSC 1061 Docket: 20703 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA Ruling on Application for Severance The Honourable Mr. Justice Davies April 1, 2003 HER MAJESTY THE QUEEN AGAINST MIGUEL ANGEL ROJAS HUGO CARLOS ROJAS Counsel for the Crown: G. Loeppky B.G. McCabe Counsel for the Defendant, Miguel Rojas: J.M. White Counsel for the Defendant, Hugo Rojas: M.A. Nathanson [ 1 ] THE COURT: This is an application for severance by the accused, Hugo Rojas.

It is supported by the accused, Miguel Rojas. [ 2 ] The accused are both charged with second degree murder and this application is made at the beginning of a trial that is scheduled to last for nine weeks.

The trial was, in fact, scheduled to commence today, however, because of the late disclosure of the evidence which is now the subject of this severance application, the trial itself is now scheduled to commence with jury selection on Thursday of this week. [ 3 ] Given the timing of this application, in relation to the commencement of the trial, it is necessary that this decision, with respect to severance, be made now.

Accordingly, I have determined that I am in a position to deliver judgment today, and while my reasons for judgment might be more readable had I availed myself of the opportunity to reserve on this decision, the result would not change. [ 4 ] What is now at issue are the statements of a proposed witness who is a jailhouse informant.

While much has been made of the issue of late disclosure of this evidence by the Crown, and while I agree that such late disclosure is unfortunate, I am of the opinion that the proper remedy for late disclosure would have been an application for an adjournment of the trial by either or both accused.

Neither, however, sought an adjournment. [ 5 ] Briefly, and I say very briefly, the circumstances out of which the charges against the two accused arose and the theory of the Crown is that the accused were engaged in a joint enterprise in the killing of David Bahamonde and the subsequent burning of his body over one kilogram of cocaine. [ 6 ] The statements of the jailhouse informant which resulted in this application are statements which, if accepted, would amount to a confession by Miguel Rojas as to his involvement in the death of the deceased. [ 7 ] Significantly, the statements are also inculpatory in relation to the alleged involvement of Hugo Rojas in the crime.

They are, however, not admissible against him since they are out-of-court statements made by one accused allegedly inculpating another accused.

While there is some suggestion that Hugo Rojas may have been present for one part of a statement, that is not a conclusion that I can reach at this time. [ 8 ] Hugo Rojas relies upon the proposition that since the statements allegedly made by Miguel Rojas to the informant are inadmissible against Hugo Rojas at trial they are potentially highly prejudicial to him if the jury were to disregard or fail to understand warnings about the use to which the statements could be put. [ 9 ] Hugo Rojas’ counsel’s specific concerns relate to the jury potentially improperly using inadmissible evidence to fill in alleged gaps in relation to admissible evidence against Hugo Rojas, or improperly using evidence that is inadmissible against Hugo Rojas to buttress the credibility of other Crown witnesses who directly implicate Hugo Rojas.

[10] Counsel for Hugo Rojas also raises the issue of whether these statements could derail this trial. He suggests inquiries in relation toadmissibility and questions relating to the potential prejudicial effect of the statements as measured against their probative value couldunduly lengthen the trial. [11] The legal background against which the analysis of whether severance will be granted is not particularly controversial. [12] The application made by Hugo Rojas is brought pursuant to s. 591(3) of the Criminal Code of Canada. It provides: 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] The governing principles in relation to the exercise of the discretion that is vested in the trial judge in relation to the determinationof these issues in the “interests of justice,” have long been established. As early as 1899, in R. v. Weir (No. 4) (1899),(QC CQ), 3 C.C.C. 351 at pp. 352 to 353, the Quebec Court of Queen’s Bench identified five factors which should be considered inrelation to severance applications.

They are, where: (1) the defendants have antagonistic defences; (2) important evidence in favour of one of the defendants which would be admissible on a separate trial would not be allowed on ajoint trial; (3) evidence which is incompetent against one defendant, is to be introduced against another, and that it would work prejudicially tothe former with the jury; (4) a confession made by one of the defendants, if introduced and proved, would [be] calculated to prejudice the jury against the otherdefendants; and (5) one of the defendants could give evidence for the whole or some of the other defendants and would become a competent andcompellable witness on the separate trials of such other defendants. [14] Recent decisions of the Supreme Court of Canada and the British Columbia Court of Appeal are also important to thedetermination of whether severance should be granted.

In that regard, I refer particularly to the decision of the British Columbia Court ofAppeal, in R. v. Evans, 2002 BCCA 351, at para. 44, wherein Madam Justice Ryan stated: The general rule is that persons involved in a common enterprise should be jointly tried. This presumption applies with greater forcewhen co-accused blame each other as the guilty party. In such cases the truth is most likely to emerge when the co-accused, who arealso co-accusers, give their accounts in a single proceeding.

Separate trials increase the risk of inconsistent verdicts and the danger thatthe truth will not be discovered at either trial. In reaching that conclusion, Madam Justice Ryan referred to the decision of Mr. Justice Sopinka in R. v.

Crawford, (SCC), [1995] 1 S.C.R. 858, at paras. 30 and 32, and particularly the statement that: Although the trial judge has a discretion to order separate trials, that discretion must be exercised on the basis of principles of law whichinclude the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused. [15] A further statement of the applicable law, which governs the exercise of my discretion in this case, is found in R. v. Forknall, 2003BCCA 43. At para. 44, Madam Justice Ryan, again speaking for the Court of Appeal, said:

Thus, the general rule is that accused persons alleged to have been involved in a common criminal enterprise ought to be tried togetherunless it can be demonstrated that a joint trial would work an injustice to one of the accused. Severance will not be granted solely on thebasis that evidence led against one accused is inadmissible or limited in its use against another. We operate on the premise that juriesunderstand and will obey instructions given to them by the trial judge who can explain to them the uses that can and cannot be made ofsome of the evidence led at trial.

The decision to order separate trials is a matter of discretion for the trial judge who is in the bestposition to determine how the interests of justice will best be served. [16] In this case, there is a joint enterprise alleged and there is direct and circumstantial evidence which, if accepted, could establish ajoint enterprise in which the two accused were engaged. [17] Further, although the possibility of the waging of what is colloquially called a “cutthroat” defence has been minimized by counselfor Hugo Rojas, he also frankly admitted that, “all defences are open”. [18] Therefore, in my view, the concerns about the possibility of inconsistent verdicts addressed in Crawford, Evans and Forknall arehighly relevant. [19] I turn, then, to the specific issues raised by the accused, Hugo Rojas, in relation to this severance application. [20] Firstly, although much has been said about the question of delay in the disclosure of these statements, I repeat that no applicationfor an adjournment of the trial has been made.

While I acknowledge that contextually the statements may give rise to evidentiarydifficulties for either or both accused, severance is not necessary on that basis. [21] Secondly, I am satisfied that, with the proper jury instructions, the proper evidentiary use of the impugned statements can beproperly brought home to the jury so that neither accused will be prejudiced.

I note, in that regard, that as to the question of theinadmissibility of statements made by one accused as against the interest of another accused, both the Evans and Forknall decisions are,in many respects, indistinguishable from those at bar. [22] Thirdly, I note that while this severance application was based upon statements by the informant given over a period of time to thepolice, and while this application must, of course, consider the potential that those statements will be before the jury, the fact is that if orwhen any or all of the contents of the alleged discussions are led (because that is not a forgone conclusion), the evidence may besignificantly different than that presently recorded. [23] Fourthly, there is also the suggestion that the statements may not be admissible by reason of their prejudicial effect outweighingtheir probative value, and that is an issue which may preclude or limit the admission of this evidence.

To that extent, much of theevidence now complained about by Hugo Rojas may never be before the jury. [24] Finally, even if the evidence of the informant is ultimately adduced before the jury, whether in whole or in part, I agree withCrown counsel that this is not a particularly complex case and will not require an overly complex charge. [25] In R. v. Chenier, [2000] O.J. No. 5421 (Ont. Sup. Ct.), Mr.

Justice Rutherford said, at para. 34: On the basis of the evidence that will be advanced at trial as I presently understand it, I do not see that this is a case where there is a basisfor concern that should lead to separate trials. In any joint trial, there is bound to be evidence that is admissible against one and not otherof the accused. It is the duty of the trial judge to instruct the jury as to the extent that particular pieces of evidence can be considered inrelation to what issue and as against which of two or more accused persons. Juries, as the Supreme Court noted in R. v.

Corbett (1988), (SCC), 41 C.C.C. (3d) 385 and in R. v. Vermette (1988), (SCC), 41 C.C.C. (3d) 523 at 531, can betrusted to do their duty in accordance with the law and properly confine consideration of certain evidence to the legitimate considerationsto which they are instructed it may be used. In this particular case, I do not see any substance to the risk of prejudice that Mr. Greensponforesees. The case against both Chenier and Farley is, it would appear, quite strong.

This is not one of those cases such as Guimond(supra) in which the case against one of the accused is substantially weaker than the case against the other. Not only is the caseapparently very strong against Chenier on the evidence that will be directly admissible against him, the jury will not, it would seem, learnanything new of a substantive nature by hearing either Farley's alleged confession to Lambert or his utterance in the telephone wiretap,beyond that which they will hear or have already heard directly from witnesses implicating Chenier directly.

I am not persuaded that severing the trials of the two accused is justified by any apparent injustice likely to flow from the introduction ofa joint trial of the impugned evidence which would be inadmissible as against Chenier.

I am mindful of the task that I will have inensuring that adequate instructions are given to the jury as to the use that they may and that they must not make of different pieces ofevidence that are likely to be presented, but I am satisfied that if I do an adequate job of that, no unfairness will result. [26] While I am not now in a position to judge the relative strength or weaknesses of the Crown’s case against either or both of HugoRojas or Miguel Rojas, I am satisfied that if I do my job, that is, if I do the adequate job necessary to instruct this jury, no unfairness willresult. [27] I am, accordingly, satisfied that at least at this stage of the proceedings the accused, Hugo Rojas, has not established that a jointtrial will work to his disadvantage or result in an unfair trial.

[ 28 ] As to the argument that this trial may become protracted by possible lengthening due to admissibility issues and the examination of the informant generally, in my view, that possible consequence of the continuation of this trial as a joint trial does not override the concern expressed in Evans and Forknall that, as a general rule, persons involved in a common enterprise should be jointly tried. [ 29 ] The application, at this stage of the proceedings, by the accused, Hugo Rojas, for severance is denied. “B.M. Davies, J.” The Honourable Mr. Justice B.M. Davies