R. v. Monteith, 2022 NSSC 96

SUPREME COURT OF Nova Scotia Citation: R. v. Monteith , 2022 NSSC 96 Date: 20220405 Docket: Halifax , No. 496395 and 496466 Registry: Halifax Between: Her Majesty the Queen v. Peter Guy Joseph Monteith Pre-Trial Applications Including Severance Restriction on Publication: Sections 645(5) and 648 of the Criminal Code .

Judge: The Honourable Justice Joshua Arnold Heard: December 1, 2, 3, 8, 14, and 20, 2021, and January 25, February 1, and 7, 2022, in Halifax, Nova Scotia Final Written Submissions: February 11, 2022 Counsel: Eric Taylor, Scott Morrison, and Kacie Oliver, for the Provincial Crown Peter Monteith, Self-Represented Accused Overview [ 1 ] The accused, Peter Monteith, is scheduled for one jury trial in relation to two separate robberies alleged to have taken place at the same Scotiabank branch about one week apart.

He has brought a number of pre-trial motions in relation to these charges requesting remedies both under the Charter and at common law, including severance. Ultimately, Mr. Monteith wants the charges stayed or, alternatively, he wants to have two separate trials, re-electing to judge alone on one set of charges and maintaining his jury election on the others. The Crown opposes all of his motions. [ 2 ] Subsequent to these motions Mr. Monteith made a Rowbotham application before Bodurtha J., who recently appointed state- funded counsel. Peter Mancini, Q.C., has agreed to represent Mr. Monteith.

I had delayed release of this decision pending Mr. Monteith obtaining counsel, in case there was a change of strategy regarding severance. [ 3 ] In the meantime, Mr. Monteith’s trial is being adjourned as Mr. Mancini is not available on the currently scheduled trial dates. Mr. Mancini advises that he will not be up to speed on the file for approximately two months such as to be able to provide Mr. Monteith with advice on trial strategy. Because the Crown and the court need to know whether there will be one or two trials prior to Crownside, I am compelled to release my decision prior to Mr.

Monteith receiving advice from Mr. Mancini about severance. For the reasons that follow all of his motions are dismissed with the exception of his severance application, which is granted.

Facts [ 4 ] Mr. Monteith represented himself and testified on these applications. While on the stand, his testimony was comprised of both evidence and argument. Mr. Monteith alleges that the Crown has prosecuted him maliciously; that the Crown and one of his assigned lawyers from Nova Scotia Legal Aid conspired to work against him; that the court has no jurisdiction to proceed against him due a defect in the process regarding the informations and indictments; that numerous of his Charter rights have been infringed; and that he should be granted severance. [ 5 ] Mr. Monteith is remanded on these charges.

He said that while he had expected to be remanded in a federal institution, in particular in a psychiatric care unit, after being charged, he unexpectedly ended up in the Central Nova Scotia Correctional Facility. He alleged that his unexpected transfer must have been the result of either prosecutorial or judicial interference and mischief. He had no tangible evidence to support these allegations. Nonetheless, the Crown called evidence in reply that clarified how his transfer from a federal institution to a provincial institution came to pass. [ 6 ] Mr.

Monteith provided evidence regarding his arrest and the provision of a statement to the police in support of his motion that his s. 10(

a) and (

b) Charter rights had been violated. The Crown has now advised that they are no longer seeking admission of that police statement. As a result, I will not review that evidence. [ 7 ] In reply to Mr. Monteith’s evidence, the Crown called Kevin White who is a Security Intelligence Officer, Atlantic Division, for Correctional Service Canada.

The Crown also called two members of the Halifax Regional Police who investigated the robberies, Detective Constable Allan MacLennan and Detective Constable Matthew Guest. [ 8 ] After oral submissions, I scheduled several virtual hearings wherein I asked the Crown for further particulars regarding the evidence and witnesses that they say are common and/or distinct in relation to the two robbery trials. I also asked Mr. Monteith, if he chose, to advise:

a) why he proposed to testify on one trial not the other and;

b) whether he would provide further details regarding his claim that a third party actually committed one or both of the robberies. [ 9 ] In response, on January 30, 2022, the Crown provided a

summary of the case in relation to both robberies and the anticipated evidentiary overlap between the two charges. I further questioned the Crown in a virtual hearing on February 1, 2022.

At that time, the Crown confirmed the following: • Identity was a significant issue in this case; • The Crown does not intend to seek admission of similar act/fact evidence, in accordance with their earlier submissions; • The Crown says any potential prejudice regarding common evidence between the two sets of charges could be cured with the standard jury instruction to not apply the evidence from one allegation to another; and • The Crown intends to elicit evidence from at least three bank employee witnesses who believe that the person that robbed the bank on October 15 was the same person who robbed the bank on October 9, raising the expectation of across-counts application of evidence; [ 10 ] I asked the Crown to reconcile the apparent conflict between these positions, and to provide a suggested jury instruction that would address these issues. [ 11 ] During the February 1 hearing Mr.

Monteith said that he intended to testify in relation to the October 9 robbery allegation only, in support of an argument that he is merely guilty of theft and not robbery. He said he did not intend to testify about the October 15 robbery charge. Mr. Monteith said that if he testifies about the October 9 allegation he will be cross-examined regarding his entire criminal record, which is related and lengthy. The jury will then have knowledge of his criminal record when deliberating on the October 15 robbery count.

He feels that because of his related and lengthy record, the jury will feel he has a propensity for this sort of crime and will be more likely to convict him. That is why he requests separate trials. [ 12 ] On February 3, 2022, the Crown advised that they no longer intend to elicit evidence from the three bank employees alleging that the same person committed both robberies, and said in their written submissions: As noted, some Scotiabank employees believe the same man committed both robberies. We believe this is lay opinion evidence.

The employees have reached this conclusion based on observations about the suspect’s voice and mannerisms. We agree that this evidence is problematic. It invites the jury to engage in prejudicial reasoning. It asks them to apply evidence across counts on the indictment, in the absence of a similar fact evidence ruling. There is a risk of reasoning prejudice here. The evidence has limited probative value. We have therefore decided not to elicit opinions from Scotiabank employees about whether or not the same man committed both robberies based on their observations about his voice or physical mannerism.

Moreover, we will instruct our witnesses in pre-trial preparation that these conclusions are problematic and should not be volunteered. [ 13 ] The Crown says this change in their position addresses any potential prejudice, and maintain their opposition to severance. They also raised Jordan delay concerns. [ 14 ] Mr. Monteith also alleges abuse of process in respect of his appearance in Dartmouth Provincial Court on February 3, 2020. Mr. Monteith says that Williams C.J. erred because she: a) “Gated” him;

b) Did not provide him with a full opportunity to consider election and plea;

c) Did not accommodate his mental health issues;

d) Allowed him to make decisions without legal advice in relation to whether he should have a preliminary inquiry and a show cause hearing; e) “Passed the buck” to the Supreme Court;

f) Wrongly interfered with his ability to attend a group home for person’s with disabilities; and

g) Allowed an information to be improperly laid before the court rendering the proceedings moot. [ 15 ] Following questions from the court regarding the Crown’s intention to cross-examine Mr. Monteith on his criminal record and whether the Crown would be able to run a judge alone trial immediately after a judge a jury trial if severance was granted, the Crown sent correspondence on February 11, 2022. The Crown confirmed that they do intend to cross-examine Mr. Monteith on his criminal record.

The Crown was skeptical that they could complete the two trials back to back due to the coincidental timing of a third set of charges involving Mr. Monteith which are not part of this application. Issues [ 16 ] The issues for this decision are as follows: 1) Was there an abuse of process occasioned by Mr. Monteith’s appearance in Dartmouth Provincial Court on February 3, 2020 ? 2) Did the Crown maliciously interfere with Mr. Monteith’s right to counsel? 3) Were there s. 10(

a) and (

b) Charter violations in relation to his February 3, 2020, court appearance? 4) Was there a s. 8 Charter violation in relation to seizure of Mr. Monteith’s clothing from the Central Nova Scotia Correctional Facility? 5) Was there a s. 8 Charter violation in relation to seizure of Mr. Monteith’s clothing and video surveillance from the Jamieson Centre? 6) Was there a s. 8 Charter violation in relation to the seizure of video evidence from the Dartmouth General Hospital and/or the seizure of medical records from the Dartmouth General Hospital? 7) Should severance be granted?

Issue 1: Was there an abuse of process occasioned by Mr. Monteith’s appearance in Dartmouth Provincial Court on February 3, 2020? [ 17 ] A transcript from Mr. Monteith’s February 3, 2020, appearance in Dartmouth Provincial Court was filed on this application. It does not support any of Mr. Monteith’s allegations. It shows that Mr. Monteith communicated clearly with the court. He was told by Giancarla Francis, a staff lawyer with Nova Scotia Legal Aid, that a certificate would be issued for him to retain a private lawyer. Despite this, Mr. Monteith pressed ahead in making decisions.

When Chief Judge Williams tried to have him slow things down, Mr. Monteith did not acquiesce and instead asserted his position. He said he wanted to “expedite his case”. For example: THE COURT: Okay, so Mr. Monteith, you may not have been able to hear, but Ms. Francis just walked into the room and she says that she discussed your case with her manager and that they will be offering you a certificate lawyer to represent you. Are you… MR. MONTEITH: They will be? THE COURT: They will, apparently. Yes. MR. MONTEITH: Okay, but well, I’m ready to go to the Supreme Court and I want to expedite this case.

I’ve spent three months… that Ms. Francis was my lawyer and we had a conflict, and I thought Legal Aid won’t provide me with copies of the disclosure. Therefore I would represent myself and ask the Crown prosecutor to give me full disclosure, please, because I’ve been asking for disclosure since the day of my first appearance. THE COURT: Okay. Well, I’m sure that arrangements will be made for you to get your disclosure. I think it would be helpful for you… MR. MONTEITH: I… THE COURT: …Mr. Monteith, to have a lawyer represent you. The charges are serious. MR. MONTEITH: I agree with you on that… THE COURT: Okay.

Good. … THE COURT: Sure, sure, I agree with you. There’s also a second Information with another robbery. This robbery, from the 15 th of October of last year, you’re charged with robbing the bank of Nova Scotia and with having in your possession a knife for a purpose dangerous and having your face masked. Did you want to be tried by judge and jury in the Supreme Court on that matter, too?

MR. MONTEITH: I…yes, I do. I elected to be tried by judge and jury last hearing that we had. THE COURT: Okay. MR. MONTEITH: And I didn’t know I’d have to elect again. THE COURT: Okay. Well, I wasn’t here last day. So I’m just catching up. MR. MONTEITH: Sorry. THE COURT: Okay? MR. MONTEITH: I understand that. … MR. MONTEITH: The Legal Aid lawyer…yes, but I understand by the Legal Aid’s lawyer that Legal Aid won’t supply me with the copies of the disk. … MR. MONTEITH: Well, she wouldn’t give me them because she said that they don’t want to pay the costs to copy them and given them to me. THE COURT: Yeah. MR.

MONTEITH: Legal Aid doesn’t want to pay the costs. So… THE COURT: Okay. MR. MONTEITH: …would I be able to just leave it up to the Supreme Court judge in order to…I already elected to go to Supreme Court. THE COURT: Mm-hmm. MR. MONTEITH: Can we just leave it up to the Supreme Court to handle this? THE COURT: Sure, and there’s a new charge of robbery as well, Mr. Monteith, from October 25 th , 2019… … THE COURT: Yes. So Mr. Monteith, do you want some time to consider how you wish to deal with the new matter, or do you wish to elect Supreme Court judge and jury on this matter? MR.

MONTEITH: That I do… THE COURT: Okay. MR. MONTEITH: …wish to elect Supreme Court judge and jury. THE COURT: Okay. [ 18 ] Mr. Monteith consented to remand on that date and did not apply for bail until late December 2021. He was not “gated”. [ 19 ] Mr. Monteith was offered a full opportunity to consider his election and plea. He refused to wait until he had legal counsel despite Williams C.J. clearly urging him to consider delaying his decisions. [ 20 ] Chief Judge Williams treated Mr.

Monteith respectfully throughout his appearance and there is absolutely no evidence that she failed to accommodate his alleged mental health issues. [ 21 ] Mr. Monteith’s desire to move the matter along quickly was evident in his decision to waive a preliminary inquiry and consent to remand. In fact, as noted above, he did not apply for bail until late December 2021. [ 22 ] During the February 3, 2020, court appearance Mr. Monteith indicated that he wished to get his case to Supreme Court as quickly as possible. Williams C.J. did not “pass the buck” to the Supreme Court. The transcript reveals that Mr.

Monteith is the one who elected a jury trial in Supreme Court and wanted the matter to move to this court as quickly as possible. When Chief Judge Williams mentioned waiting for Mr. Monteith’s lawyer before starting, the following exchange occurred: MR. MONTEITH: Yeah, my understanding is she’s going to resign from the case and I’m gonna…I’m gonna represent myself and I would like to…I elected last appearance. I would like to try judge and jury, so I would like to move to the Supreme Court of Nova Scotia. THE COURT: Right. Okay MR.

MONTEITH: By…and I would like a Federal remand again, and do it by video link, please.

… MR. MONTEITH: Okay, but well, I’m ready to go to the Supreme Court and I want to expedite this case… … MR. MONTEITH: I unfortunately have been familiar with the law for a number of years, and I don’t think…I don’t think…I think it’s just dragging it on. There would be a trial whether they had evidence or not. So I…I’m going to ask for…to waive my right to a Preliminary Inquiry. THE COURT: Okay. Okay, so that means, then, that we will need to have you appear for arraignment in the Supreme Court. So that still takes place on Thursdays? MS. MACDONALD: That’s Crownside. THE COURT: Crownside?

There will be some need…now do you want to appear by video for that appearance as well, Mr. Monteith, or do you want… MR. MONTEITH: Yes, ma’am. THE COURT: Okay. MR. MONTEITH: I would like to appear by video so I don’t have to leave the psychiatric unit. THE COURT: Okay. Very good. So maybe in…what’s today? Monday. Not this Thursday but next Thursday we could set it down for your arraignment in Supreme Court? MR. MONTEITH: Sounds good to me, ma’am. THE COURT: Okay, so that would be the 13 th of February at 9 a.m., I believe. MR. MONTEITH: I’ll write that down. THE COURT: Okay. February 13 th , 9… MR.

MONTEITH: February 13 th THE COURT: Yeah, 9 a.m. MR. MONTEITH: 9 a.m. THE COURT: You’ll appear by video. You’re… MR. MONTEITH: Video. THE COURT: Yeah, and you’re consenting to a Federal remand, although there will be no remand on the… MR. MONTEITH: And I’m consenting to a Federal remand. [ 23 ] Additionally, as is revealed in the transcript, it was Mr. Monteith who suggested the matter would best be handled in Supreme Court. MR. MONTEITH: Well, that’s…that’s what I wanted to talk to the Court about…is how can a person rob an institution?

It’s something that I would like to bring up at trial in the Supreme Court… THE COURT: Yeah, so that’s an issue… MR. MONTEITH: …if I can make it there. THE COURT: That’s an issue for you to raise with your lawyer once you get your lawyer. MR. MONTEITH: Yes, and I was going to ask for a Rowbotham application at the Supreme Court level, because given that Legal Aid won’t supply me with the disks there’s a conflict of interest there, and I would think that a Rowbotham application at the Supreme Court level will be submitted by me.

THE COURT: Yeah, except from what I understand, Legal Aid will provide you with a lawyer before you get to Supreme Court and you’ll be able to get that disclosure through the lawyer. Before you get to… MR. MONTEITH: Yes, but… THE COURT: …Supreme Court for your judge and jury trial. MR. MONTEITH: The Legal Aid lawyer…yes, but I understand by the Legal Aid’s lawyer that Legal Aid won’t supply me with the

copies of the disk. THE COURT: No, but they’ll… MR. MONTEITH: (inaudible) decision of… THE COURT: But they’re going to give it to you… MR. MONTEITH: Of Legal Aid. … THE COURT: Yeah. No, we can accommodate you. So these matters… MR. MONTEITH: Okay. THE COURT: Matters where a Preliminary Inquiry could be an option. They’re… MR. MONTEITH: No, I…I waive my… MS. MACDONALD: I believe. MR. MONTEITH: I waived my right to Preliminary Inquiry in the past.. UNIDENTIFIED VOICE: (Well, if the?) offence is more than 14 for robbery, yes. MS. MACDONALD: I think it’s 14, yeah. UNIDENTIFIED VOICE: Yeah, it’s 14 years.

THE COURT: So…but I think…do I hear you saying… MS. MACDONALD: (inaudible) life imprisonment for robbery. THE COURT: …that you’re waiving your right to a Preliminary Inquiry? MR. MONTEITH: Yes, that’s correct. On all three or all three Informations. THE COURT: Are you…do you think maybe you should speak to a lawyer before you make that decision? The lawyer might think… MR. MONTEITH: I did speak to a lawyer already. THE COURT: …there’s some benefit to you having a Preliminary Inquiry. MR.

MONTEITH: I unfortunately have been familiar with the law for a number of years, and I don’t think…I don’t think…I think it’s just dragging it on. There would be a trial whether they had evidence or not. So I…I’m going to ask for…to waive my right to a Preliminary Inquiry. THE COURT: Okay. Okay, so that means, then, that we will need to have you appear for arraignment in the Supreme Court. So that still takes place on Thursdays? MS. MACDONALD: That’s Crownside. [ 24 ] Chief Judge Williams had nothing to do with Mr.

Monteith being remanded in a provincial institution (CNSCF) instead of a federal institution (Dorchester’s Psychiatric Unit). At the conclusion of the February 3 court appearance all parties anticipated he would be remanded federally: THE COURT: And, Mr. Monteith, you’ve been consenting to your remand, in a Federal remand. Is that correct? MR. MONTEITH: Yes, I’m in…I’m in a Federal remand and I’m in a psychiatric unit. THE COURT: Yes. MR. MONTEITH: And they’re taking care of me at the Federal remand psychiatric unit, where… THE COURT: Okay. Good. MR. MONTEITH: …where I wish to stay. THE COURT: Okay. MR.

MONTEITH: That’s up to the Court, I know that.

THE COURT: Yeah. No, we can accommodate you. So these matters… MR. MONTEITH: Okay. [ 25 ] As noted above, Kevin White is a Security Intelligence Officer, Atlantic Division, for Correctional Service Canada . His office is in the Jamieson Centre, which is a halfway house located in Burnside, where Mr. Monteith was housed at the relevant times. Mr.

White is the main point of contact for Corrections Canada with the Atlantic Canadian community, and outside parties such as community justice partners (various policing agencies, CSIS, Canada Border Services, etc), and also deals with witness protection and incompatibility issues related to the institution. Mr. White explained the legislation and policies that provide the parameters and authority for the provision of institutional information to outside agencies generally. He also explained the signage at Jamieson House and described his contact and interaction with Mr.

Monteith and the police in this case. [ 26 ] Mr. White explained why Mr. Monteith was transferred from Dorchester to the CNSCF. He agreed that Mr. Monteith had a federal sentence expire on February 4, 2020. He confirmed that a federal remand warrant out of Dartmouth Provincial Court showed the same date. He also confirmed that an admission form showed that he was admitted to the Central Nova Scotia Correctional Facility on February 4, 2020. The exchange between Mr. White and Eric Taylor, for the Crown, continued as follows: MR.

TAYLOR: …So, the question has arisen in the evidence, if he was remanded on February 3 rd by Dartmouth Provincial Court to be housed federally, why is he being transferred from Dorchester to Central Nova Scotia Correctional Facility the very next day, on February 4, 2020? MR. WHITE: Because he’s reached his warrant expiry and as a…in accordance of the, I guess, Exchange Shared Agreement, he would be moved down to provincial corrections – to any provincial corrections.

If his court, say, was in Ontario, they would have made arrangements for him to be proceeded to Ontario to attend court, where the court would be in that province. ‘Cause once he reaches warrant expiry he’s no longer under the care of Corrections Canada and within the Exchange Service Agreement they would make that application for him to move. [ 27 ] Mr. White was referred to an exchange agreement respecting Mr. Monteith’s transfer from federal custody in Dorchester to CNSCF on February 4, 2020, and was asked why this occurred: MR.

TAYLOR: Sorry, no, did I ask…did I ask you if you could find any information between those two sentence administrators of those two organizations? MR. WHITE: No, no, this matter only came up to my attention last week, you asked... MR. TAYLOR: Yup. MR. WHITE: …if I could find information as to the reasons why Mr.

Monteith was moved from federal to province after he was federally remanded and then, as a result of your request, I reached out to sentence management of the penitentiary where he was residing and they provided me information as to their email conversation back and forth as to the decision, which included making reference to this Exchange and Service Act agreement and which then I provided you. MR. TAYLOR: Sorry, I was just referring to February 4, 2020, not as the time when you got this information, but it was relating to the transfer on that date. MR.

WHITE: …No, I would have, it would not have even come across my desk back then. It would not have been something of me to look at or be of value in…in my position at that time. MR. TAYLOR: But did you provide me with a correspondence between sentence administrators? MR. WHITE: I did, I think yesterday or the day before, not…not, no…yes, I did that. MR. TAYLOR: Did you ask me to redact any information on those exchanges? Mr. White: No, no. Absolutely not. MR. TAYLOR: You didn’t ask me to vet anything out? MR. WHITE: Oh, yes, sorry. Yes, I actually asked if you could, not you.

I asked for the privacy of the individuals, of like the names of who, like, sentence management, you know, the…the…the Director of the Nova Scotia province. The people who were cited in the emails, I actually asked for their privacy, which we typically do. We don’t normally share information with many other people’s names without reason. MR. TAYLOR: Is that the document you recently shared with me and asked to be vetted? MR. WHITE: Yes, that’s correct. MR. TAYLOR: …with that same warrant of remand that we referred to earlier, attached to it.

If you look at page 3, I think that would be the first email chronologically, that’s dated February 3, 2020, at 3:01 p.m.? Mr. White: Yes, that’s how you would read…yes, that’s correct. That would be the first reach out from Dorchester Penitentiary to the Nova Scotia Correctional Facility.

MR. TAYLOR: Alright and, just for the benefit of the Court and Mr. Monteith, I’ll read you the substance of that email: Hi. I am writing to you in _________’s absence. Mr. Monteith was to be released on warrant expiry today, February 3, 2020. Mr. Monteith was being held on a federal remand order, as video court was scheduled for 1:30 today, February 3. We cannot release the offender until we knew what happened in court. The sentence management department had contacted the Crown Attorney last week advising of Mr.

Monteith’s warrant expiry date and had informed the Crown that a provincial remand was necessary if they were recommending the offender continue to be remanded. When an offender reaches W.E.D., he is no longer a federal offender. The CSC cannot keep non-sentenced offenders in custody on federal remands. The offender is currently in Shepody Healing Centre in Dorchester complex in N.B. During the video court appearance this afternoon, Mr. Monteith requested to the judge that he be federally remanded, and the judge granted the federal remand.

We are requesting that the offender return to the province under the new E.S.A. provision. The usual notification procedure should be applied to enable the province to prepare for his arrival. The offender’s court process is with Dartmouth Court and the next video conference is scheduled for February 13, 2020, at 9. The sheriff would need to pick up the offender tomorrow morning, transport him back to a provincial correctional facility in Nova Scotia. Your attention to this matter would be greatly appreciated. MR. TAYLOR: And I guess it’s the regional manager of sentence management that sent that email.

You see the response on page 2. It appears to be from someone locally, in Nova Scotia, to someone in Corrections Canada – it appears the Director of Correctional Services sent this. Hi. We can certainly accept the offender, pursuant to

Section D6C of the E.S.A., pending his next court appearance. MR. TAYLOR: And it continues. And then the next email appears to be, again February 4, 7:25 a.m., from the Regional Manager of Sentence Management for CSC: We had contact the Crown prior to yesterday’s court appearance informing them that a provincial remand was required. We will contact the Crown again today to advise. Also contact the sheriffs to transportation the offender. What provincial correctional facility will the offender be going to so we can…the sheriffs? MR.

TAYLOR: The response to that seems to be: You can have him transported to the Central Nova Scotia Correctional Facility, Dartmouth, Nova Scotia. MR. TAYLOR: And then, finally, the most recent email, from the Regional Manager, Sentence Management of Correctional Service Canada to Sheriffs’ Dispatch: As per the emails below, Mr. Monteith has reached his warrant expiry date, but has currently held on…the federal remand order attached. The Director of Correctional Service Nova Scotia, Department of Justice, has approved the transfer of Mr.

Monteith to the Central Nova Scotia Correctional Facility, Dartmouth, Nova Scotia, pursuant to

section D6C of the E.S.A. Please make arrangements to pick up the offender today from Shepody Healing Centre in Dorchester Complex, Dorchester, New Brunswick. MR. TAYLOR: Finally, D6C keeps getting referred to as part of the Exchange of Service Agreement. Did you provide me with that D6C information? MR. WHITE: Yes, that’s correct, I did yesterday. MR. TAYLOR: Alright, so, Mr. White, this is a document you provided to me recently? Mr. White: Yes, correct. MR. TAYLOR: And I understand this is part of the Nova Scotia Exchange of Service Agreement with Correctional Service of Canada? MR. WHITE: That’s correct. MR.

TAYLOR: And it shows at the top, under D “Canada and Nova Scotia desire to enter into an agreement respecting the following services”, and then you go down to 6 “to the extent provincial correctional facilities have available beds, the temporary accommodation of federal offenders pending their transportation to a federal penitentiary with respect to…”, and then you go down to C, “Federally Remanded Offenders”. MR. WHITE: That’s correct. MR.

TAYLOR: So, to your knowledge, is that the agreement between CSC and Nova Scotia that allows for the transfer of federally remanded offenders to a provincial correctional institution at the request of the federal institution and with the agreement of the provincial institution? MR. WHITE: Yes, that’s correct. [ 28 ] It is clear from Mr. White’s evidence that Mr. Monteith was transferred from Dorchester to CNSCF because of the Correctional Service of Canada policies. No role was played by the Crown, Legal Aid, or the court in that decision-making process. [ 29 ] In relation to Mr.

Monteith’s claim that Williams C.J. allowed an information to be improperly laid, there is simply no foundation for this claim. The history of the charges is set out by the Crown in their December 13, 2021, brief:

i) Regarding the October 9, 2019 Robbery allegation: November 4, 2019: Charges were sworn and laid before Dartmouth Provincial Court on November 4, 2019 by way of an Information that

included charges relating to the October 15, 2019 Robbery allegation. (The October 15, 2019 charges were later withdrawn prior to election/plea during the November 25, 2019 appearance before Chief Judge Williams in favour of a separate Information with the October 15, 2019 charges (see below).) The accused had already appeared in court and had been remanded on the below Information by consent to November 25, 2019 for election/plea prior to this Information being sworn, so the Court ordered Mr. Monteith remanded on this Information to that date as well, but for arraignment on this Information.

November 25, 2019: Mr. Monteith appeared in Dartmouth Provincial Court in custody with counsel Ms. Francis. The October 15, 2019 charges on this Information were withdrawn in favour of the separate JP Information that had been sworn and laid November 2, 2019. Mr. Monteith was arraigned on the remaining charges relating to the October 9, 2019 allegations alone, and election/plea was adjourned to December 30, 2019, with Mr. Monteith consenting to his remand. Later that morning the defence sought a mini-assessment in cells that day, and that afternoon the matter was scheduled at defence request for a

section 672.11 C.C. assessment on November 26, 2019. Mr. Monteith was remanded with consent. November 26, 2019: Mr. Monteith appeared in Dartmouth Provincial Court in custody with counsel Ms. Francis. Election/plea was once again scheduled for December 30, 2019, and Mr. Monteith was remanded, apparently with consent, to appear on the next day by video. December 30, 2019: Mr. Monteith appeared by video in Dartmouth Provincial Court in custody, with counsel Ms. Francis. Election/plea was adjourned to February 3, 2020, with Mr. Monteith consenting to a Federal remand, to appear next date by video.

February 3, 2020: Mr. Monteith appeared by video in Dartmouth Provincial Court in custody from Dorchester Penitentiary, with counsel Ms. Francis. He elected to be tried in Supreme Court by Judge and Jury, and waived his right to a preliminary inquiry. He was scheduled to appear for arraignment on the present charges in Supreme Court on February 13, 2020, and again consented to a Federal remand until that date. ii) Regarding the October 15, 2019 Robbery allegation: November 2, 2019: Charges were initially sworn on this date and laid before a Justice of the Peace at the JP Centre in Dartmouth.

The accused appeared by phone from custody in Halifax Regional Police cells in Halifax and was arraigned on the charges. The Crown opposed release, and so Mr. Monteith was remanded to appear in Dartmouth Provincial Court for show cause and election/plea on November 4, 2019. November 4, 2019: Mr. Monteith appeared in Dartmouth Provincial Court in custody with cells duty counsel Mr. Baranowski. The Crown was opposed to release, and defence indicated it was not seeking a show cause hearing at this time. Election/plea was adjourned to November 25, 2019. Mr. Monteith was remanded with consent. November 25, 2019: Mr.

Monteith appeared in Dartmouth Provincial Court in custody with counsel Ms. Francis. Election/plea was adjourned to December 30, 2019, with Mr. Monteith consenting to his remand. Later that morning the defence sought a mini-assessment in cells that day, and that afternoon the matter was scheduled at defence request for a

section 672.11 C.C. assessment on November 26, 2019. Mr. Monteith was remanded with consent. November 26, 2019: See similar endorsements in above Information. December 30, 2019: See similar endorsements in above Information. February 3, 2020: See similar endorsements in above Information. [ 30 ] Chief Judge Williams did not mislead Mr. Monteith regarding his right to disclosure. Legal Aid was not willing to copy the electronic disclosure for him, and the Crown preferred to wait until he selected private counsel in accordance with the certificate before forwarding any more electronic disclosure: THE COURT: …Mr.

Monteith, to have a lawyer represent you. The charges are serious. MR. MONTEITH: I agree with you on that… THE COURT: Okay. Good. MR. MONTEITH: …but Mr. Francis could tell you. So Legal Aid won’t find…or give me copies of a disk of…which my disclosures are on. That’s…that’s keeping me from having full disclosure.

THE COURT: Ms. Francis, is there an issue with disclosure being provided to Mr. Monteith? MS. FRANCIS: We’ve provided him with paper disclosure, and no, we won’t be providing the disk. He’ll have to review that with his lawyer. THE COURT: So the lawyer that’s representing… MR. MONTEITH: So therefore… THE COURT: I think what I understand, Mr. Francis (sic), is that the disc will be provided to the lawyer that you choose to represent you and then the lawyer will go over that material with you. MR. MONTEITH: Yes.

See, I would rather have a copy of that material so I can go over it, because the last robbery case that I was involved, there was a switch when…when a victim ID’ed the guy. She ID’ed another guy, but they switched my…my paper over and got them to sign the bottom of my paper, which was upside-down, indicating that she picked me, when in fact she picked the other guy. So I would like to look at disclosure so that I can answer in full defence. THE COURT: Sure, sure, I agree with you. There’s also a second Information with another robbery… … MR.

MONTEITH: Yes, and I was going to ask for a Rowbotham application at the Supreme Court level, because given that Legal Aid won’t supply me with the disks there’s a conflict of interest there, and I would think that a Rowbotham application at the Supreme Court level will be submitted by me. THE COURT: Yeah, except from what I understand, Legal Aid will provide you with a lawyer before you get to Supreme Court and you’ll be able to get that disclosure through the lawyer. Before you get to… MR. MONTEITH: Yes, but… THE COURT: …Supreme Court for your judge and jury trial. MR.

MONTEITH: The Legal Aid lawyer…yes, but I understand by the Legal Aid’s lawyer that Legal Aid won’t supply me with the copies of the disk. THE COURT: No, but they’ll… MR. MONTEITH: (inaudible) decision of… THE COURT: But they’re going to give it to you… MR. MONTEITH: Of Legal Aid. THE COURT: They’re going to give it to your lawyer. MR. MONTEITH: Yes, I know, but I would like to inspect the copies myself. I have the right to inspect the disclosure myself, Your Honour. THE COURT: Correct, and once you get your lawyer, your lawyer can give you those disks. MR.

MONTEITH: Well, she wouldn’t give me them because she said that they don’t want to pay the costs to copy them and give them to me. THE COURT: Yeah. MR. MONTEITH: Legal Aid doesn’t want to pay the costs. So… THE COURT: Okay. MR. MONTEITH: …would I be able to just leave it up to the Supreme Court judge in order to…I already elected to go to Supreme Court. THE COURT: Mm-hmm. MR. MONTEITH: Can we just leave it up to the Supreme Court to handle this? THE COURT: Sure, and there’s a new charge of robbery as well, Mr. Monteith, from October 25 th , 2019… [ 31 ] Mr.

Monteith was not improperly denied access to psychiatric care by Williams C.J. Again, the transcript reveals that Mr. Monteith was dealt with in the normal course: THE COURT: And, Mr. Monteith, you’ve been consenting to your remand, in a Federal remand. Is that correct?

MR. MONTEITH: Yes, I’m in…I’m in a Federal remand and I’m in a psychiatric unit. THE COURT: Yes. MR. MONTEITH: And they’re taking care of me at the Federal remand psychiatric unit, where… THE COURT: Okay. Good. MR. MONTEITH: …where I wish to stay. THE COURT: Okay. MR. MONTEITH: That’s up to the Court, I know that. THE COURT: Yeah. No, we can accommodate you. So these matters… MR. MONTEITH: Okay. [ 32 ] As quoted earlier, the court went on to

schedule his arraignment, by video, for February 13. Mr. Monteith expressly consented to federal remand on all three informations. [ 33 ] Mr. Monteith claims the court lost jurisdiction when count #5 was withdrawn on November 25, 2019. On this point, the Crown responds: 7. There is no basis for the allegation that “Chief Judge Williams allowed the laying of eight charges without evidence, when Count 5 was withdrawn November 25, 2019 rendering the proceedings “moot””.

a) Chief Judge Williams was never in a position to test the validity of the charges in her court; rather, all three Informations before her had been previously laid before Justices of the Peace, with police informants swearing to or declaring their belief in the charges. The opportunity for Chief Judge Williams to enquire into the validity of the charges would have arisen had Mr. Monteith sought preliminary inquiries into the charges, which he waived.

b) The Crown is unsure what Count 5 Mr. Monteith refers to. It is clear that Counts 3-5 on the 5-count Information were withdrawn November 25, 2019 by the Crown. However, that was done before any pleas were entered, and was done in favour of a separate three- count Information proceeding, which had already been laid and which contains the same three charges but with slightly different wordings. In the Crown’s view, by withdrawing one Information before plea, in favour of a second Information sworn earlier and containing the same allegations, the Crown does not render the proceedings moot.

It is a task which falls within the Crown’s discretion, is part of the administrative responsibilities of the Crown, and takes place every day in criminal courts throughout the country. Done before plea, it does not place an accused in any jeopardy and does not violate an accused’s rights or render the proceedings unfair. ... 3.

b) The dismissal of all counts for loss of jurisdiction In the Crown’s view, Mr. Monteith fails to adduce evidence or provide a compelling argument that jurisdiction has been lost over the charges against him. His claim that the charges became “moot” when the Crown withdrew Counts 3-5 on one Information are without merit, especially as a separate Information, sworn earlier, was before the same Court with the same charges. … 9. Justice Duncan’s (as he then was) letter indicating on June 4, 2020 that the Indictments were currently proceeding separately was accurate, and there was no attempt to mislead him on that.

It was not until late September or early October 2020 that the Crown chose to proceed on one Indictment with respect to both October 9 and 15, 2019 robbery allegations, and Justice Boudreau has ruled the Crown was within its rights to do so. [ 34 ] I agree with the Crown. Nothing occurred procedurally that caused the court to lose jurisdiction over Mr. Monteith. Issue 2: Did the Crown maliciously interfere with Mr. Monteith’s right to counsel? [ 35 ] Although Mr. Monteith made this allegation at the outset of his submissions, there was absolutely no evidence tendered in support of this claim.

Issue 3: Were there s. 10(

a) and (

b) Charter violations in relation to his February 3, 2020, court appearance? Violation of s.10(

a) and (

b) of the Charter on February 3, 2020 [ 36 ] In making his various Charter applications, the burden is on the applicant, Mr. Monteith, to prove the violation on a balance of probabilities. [ 37 ] As noted above, Mr. Monteith’s right to counsel as guaranteed by s.10(

a) and (

b) of the Charter was not infringed in any way by a state authority during his court appearance on February 3, either the Crown or the judge. There is simply no basis for this

complaint. Issue 4: Was there a s. 8 Charter violation in relation to seizure of Mr. Monteith’s clothing from the Central Nova Scotia Correctional Facility? [ 38 ] Mr. Monteith testified on the Charter voir dire.

He alleged that because his clothing was seized without warrant from the CNSCF, there was a violation of his s. 8 Charter right protecting him from unreasonable search and seizure, and that such evidence should be excluded from his trial in accordance with s. 24(2). [ 39 ] Detective Constable Matthew Guest testified that he was the lead investigator in relation to the October 9, 2019, robbery allegation, and that he liaised with Detective Constable Aaron Head, who was the lead investigator on the October 15, 2019, robbery allegation . He explained his grounds for arresting Mr.

Monteith on November 1, 2019, which included: Q. Who was the lead investigator in that investigation? A. I was assigned as the lead investigator for the October 9 th robbery, correct. Q. Did you later hear of an allegation of another robbery at that same Scotiabank a week later or so? A. Uh, yes. I was aware that there was a second robbery at that same Scotiabank on Portland Street. I believe it was October 15 th and Detective Constable Aaron Head was the assigned primary investigator on that file. Q. Did you work independently of Detective Constable Head or with him in your investigation? A.

Uh, for the first, I guess it would be, six days I worked independently with a…with a few other officers to help me just get things done. But post, I guess after the second robbery that occurred, there was regular communication between myself and Detective Constable Head with respect to the two robberies. … Detective Constable Guest: I’ll move forward to November 5 th .

On that date, first thing in the morning, I filed a Report to Justice with respect to the search warrant that was ultimately authored and executed for apartment 3 at 113 Pine Crest Drive and I also included an Initial Detention Order and then later that same, I guess early afternoon, I learned from an email from Detective Constable Kristen Bradley that Mr. Monteith had been at the RBC branch on Portland Street on October 7 th . So, I emailed the security contact given to me by Detective Constable Bradley to see if I could get some images or video from that date as well.

Which followed up on November 6 th when that security contact, Mr. Chadwick, his first name is Rick, emailed me four still photos from that branch – the RBC branch on Portland Street – for October 7, 2019, of Mr. Monteith. In those four photos, I was able to observe that he was wearing, like, an aviator- style sunglass that was consistent with what was worn during the robbery as well.

And then my last, ultimately my last investigative step at that time would have been filing the additional two Reports to Justice and detention orders with the…with the Dartmouth court, and those were for a search warrant that was authored by Detective Constable Bradley and executed at the Central Nova Scotia Correctional Facility for some clothing and another warrant that was authored by Detective Constable Bradley and executed at the Jamieson Centre for what is a ski mask or neck warmer. … Mr. Monteith: …what makes you clear that I’m a suspect of this robbery? A.

So, I developed the grounds that you were the suspect in this robbery based on obtaining the video from the Jamieson Centre with clothing that was consistent with that worn by the person who committed the robbery, if we’re speaking specifically to the October 9 th incidents. I had also conducted an extensive video canvas in that area and never found anyone else, through all my video canvassing, wearing that specific set of clothing.

Furthermore, I’ll say, I…I was not…I was not ignorant of the fact that there was a robbery on October 15 th in which the person wearing that clothing, the suspect, was wearing clothing that was consistent with what you were wearing on the day you absconded from the Jamieson Centre, and ultimately went down to the hospital. Putting all of that information together in totality allowed me to develop my grounds to say you were the suspect in this robbery. Q. But on October the 9 th , when you did a canvas of the area, you didn’t come up with any still pictures of me being around that location, did ya? A.

No, that’s true. I do not have a still photo of you from that area that I can recognize and say, “That’s Mr. Monteith on the date of the robbery”. Q. But there are pictures of other people around that area at the time. A. There are a number of people on Portland Street that day, that is right. Q. Okay. A. It’s a…it’s a busy street and it’s a business district. [ 40 ] Detective Constable Guest obtained the Initial Detention Order for Mr. Monteith’s clothing and personal effects at the

CNSCF. He testified that Constable Kristen Bradley authored the search warrants to seize Mr. Monteith’s clothing and personal effectsfrom the CNSCF and from Jamieson House. The search warrants were both authorized by Justice of the Peace Judith Gass on November6, 2019, and appear valid on their face. The ITOs used to obtain the search warrants were not requested or tendered, nor was anyevidence elicited as to the wording of the ITO pertaining to the issuance of those search warrants. Constable Bradley did not testify. [41] The burden is on Mr.

Monteith to prove a Charter violation on a balance of probabilities: R. v. Dixon (sub nom R. v. McQuaid), (SCC), [1998] 1 S.C.R. 244, at para. 32. There is a presumption of validity in relation to a search warrant and swornITO: R. v. Campbell, 2011 SCC 32, at para. 14. Based on the evidence called on this voir dire I am satisfied that the search warrantswere properly issued and are valid. Issue 5: Was there a s. 8 Charter violation in relation to seizure of Mr.

Monteith’s clothing and video surveillance from theJamieson Centre? [42] A search warrant was obtained by Detective Constable Kristen Bradley to search the Jamieson Centre, and seize a blackmask/neck-warmer, The warrant was authorized by Justice of the Peace Judith Gass on November 6, 2019, and appears valid on its face. The ITO used to obtain the search warrant was not tendered, nor was any evidence elicited pertaining to the issuance of that searchwarrant.

Based on the limited evidence called on this voir dire, I am satisfied that the search warrant was properly issued and is valid. [43] Surveillance video was also seized from the Jamieson Centre’s lobby, without a search warrant. On this issue Kevin Whitereferred to s. 8 of the Privacy Act, R.S.C. 1985, c. P-21, which allows for the government to share information with law enforcement andother agencies in certain circumstances.

Section 8 states in part: Disclosure of personal information 8

(1) Personal information under the control of a government institution shall not, without the consent of the individual to whom itrelates, be disclosed by the institution except in accordance with this section. Where personal information may be disclosed

(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed … (

f) under an agreement or arrangement between the Government of Canada or any of its institutions and the government of a province,the council of the Westbank First Nation, the council of a participating First Nation as defined in subsection 2(1) of the First NationsJurisdiction over Education in British Columbia Act, the council of a participating First Nation as defined in

section 2 of the AnishinabekNation Education Agreement Act, the government of a foreign state, an international organization of states or an internationalorganization established by the governments of states, or any institution of any such government or organization, for the purpose ofadministering or enforcing any law or carrying out a lawful investigation; [44] Mr. White then referred the court to s. 25 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which allows CSCto share information with law enforcement agencies while an offender is on a release program to ensure the offender is complying withthe law.

Section 25 of the CCRA states: 25

(1) The Service shall give, at the appropriate times, to the Parole Board of Canada, provincial governments, provincial parole boards,police, and any body authorized by the Service to supervise offenders, all information under its control that is relevant to releasedecision-making or to the supervision or surveillance of offenders. [45] Additionally, Mr. White then referred to Commissioner’s Directive 701, which states: Information Disclosed to Police Forces or Investigative Bodies 34. Pursuant to

section 25 of the CCRA and paragraph 8(2)(

f) of the Privacy Act, personal information under CSC’s control may bedisclosed to police forces or investigative bodies for the purpose of administering or enforcing any law or carrying out a lawfulinvestigation. This includes the RCMP when they are acting in such capacities. Any other request from the RCMP or any federalinvestigative bodies for personal offender information must be processed pursuant to paragraph 8(2)(

e) of the Privacy Act. Refer to theAccess to Information and Privacy: Process and Compliance Manual or to institutional, regional or national ATIP representatives forguidance on such cases. [46] Evidence was tendered on this application regarding clear and distinct signage in the lobby of Jamieson Centre, indicating thatanyone entering the building will be subject to a search and that there is 24 hour video surveillance in that area. The expectation ofprivacy for an offender housed in the Jamieson Centre is clearly reduced based on those facts and in that specific context. In contrast, inR. v. F.E.D., [2009].

O.J. No. 819, Ratushny J. determined that the evidence allowed for finding that offenders were afforded a highdegree of privacy in that halfway house: 150 Ms. Maahs also said that community run or CSC run halfway houses provide a very limited degree of supervision and do notprovide the intense "chaperone like" supervision that Dr. Simourd said might contain the respondent. She said that residents of halfwayhouses are permitted a high degree of privacy. They are permitted out into the community during the day and evening.

The staff athalfway houses are not trained parole officers, counsellors or therapists and are not involved in any program delivery. Often,commissionaires are the only staff on duty during the evening and night and do not have any special training. At times, monitoringconsists only of a sign-out and sign-in process. A halfway house is a place for offenders to reside. It is not a residential treatmentprogram. [47] Even “house guests” have been found to have a reduced expectation of privacy, depending on the facts and the context. As

Brown and Martin J.J. said in R. v .Le, 2019 SCC 34 , [2019] S.C.J. No. 34: 135 While our colleague says he is not deciding the s. 8 issue in a definitive manner, he expresses doubt about whether Mr. Le hadstanding to challenge the search as an invited guest on the property of another individual. We agree that, clearly, the protective scope ofs. 8, as applied to house guests, is not being decided in this case. However, we also do not wish to be seen as endorsing the analysistentatively put forward by our colleague.

While the issue remains to be decided, the approach to privacy put forward by Moldaver J. doesnot take into consideration two fundamental points that ought to inform the s. 8 analysis. 136 First, at its core, s. 8 is concerned with the point at which "the public's interest in being left alone by government must give way tothe government's interest in intruding on the individual's privacy in order to advance its goals" (Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at pp. 159-60). The lens through which this analysis is conducted must always be normative and notcategorical.

That is, the analysis does not proceed with the assumption that a categorical factor, like control, will have a dominatingimpact on whether a person has a reasonable expectation of privacy. Rather, the inquiry is always driven by the question of whether aprivacy claim ought to "be recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free,democratic and open society" (R. v. Reeves, 2018 SCC 56, at para. 28).

Second, it is possible for an individual to have a diminished orqualified reasonable expectation of privacy while still retaining the benefit of s. 8 protection (R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R.34, at paras. 8-9; see also R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 29, citing R. v. Tessling, 2004 SCC 67, [2004] 3S.C.R. 432, at para. 22).

Guests' expectations may be qualified by the knowledge that their host could invite others in, including the state.However, it may still be objectively reasonable for a guest present on private property to expect that the state will not enter uninvited. 137 We are of the view that a case can be made that invited guests can, in some circumstances, have reasonable expectations of privacyin their host's property. The determination of when, and to what extent, these guests have a reasonable expectation of privacy will be factand context specific.

However, the analysis must always focus on s. 8's fundamental concern with the public being left alone by the state,the normative approach to discerning the parameters of privacy rights, and the fact that s. 8 provides protection to those who havediminished or qualified reasonable expectations of privacy. [48] Since Mr. Monteith was an offender serving his sentence at the Jamieson Centre, and considering the signage posted in therelevant area, I am satisfied that the provisions allowing the sharing of information between CSC and the police apply in this case.

Nosearch warrant was required for CSC to share video of Mr. Monteith in the entryway of Jamieson Centre with the police. There was noviolation of s.8 of the Charter. Issue 6: Was there a s. 8 Charter violation in relation to the seizure of video evidence from the Dartmouth General Hospital and/or theseizure of medical records from the Dartmouth General Hospital? [49] Mr.

Monteith alleges that his s. 8 Charter rights were infringed when the police seized video surveillance of October 11, 2019,and when they seized the medical records of an unnamed male (who turned out to be Victor Strang) from the Dartmouth GeneralHospital. The two ITO’s sworn by Detective Constable Allan MacLennan used to obtain the production orders were tendered as exhibitsand Detective Constable MacLennan testified. Mr. Monteith improperly attempted to determine through cross-examination whetherVictor Strang was a criminal informant.

Otherwise the examination of Detective Constable MacLennan was unremarkable. [50] Although not argued by the Crown, since the medical records seized were those of Victor Strang, Mr. Monteith has no standingto make a s. 8 Charter allegation in relation to that evidence, given that there is no suggestion that he can claim a reasonable expectationof privacy: R. v. Marakah, 2017 SCC 59, at para. 10.

Nonetheless, the ITO contains sufficient grounds for the issuance of theProduction Order. [51] The ITO for the search and seizure of the Dartmouth General video also contains sufficient grounds for the issuance of theProduction Order. None of the sworn grounds were eroded through cross-examination, and Mr. Monteith has not proven a Charterviolation in relation to the state obtaining this evidence. Issue 7: Should severance be granted? [52] Mr. Monteith says that his trial on the robbery charge alleged to have occurred on October 9, 2019, should be severed from histrial on the robbery alleged on October 15, 2019.

The burden is on the applicant, Mr. Monteith, to prove on a balance of probabilitiesthat the matters should be severed. Procedural history [53] Mr. Monteith was originally charged November 2, 2019, with three offences in relation to the October 15, 2019 robbery. OnNovember 4, 2019, a single information was laid with all five charges relating to the robberies from October 9 and 15, 2019. [54] On November 25, 2019, counts 3 to 5 (all relating to the robbery on October 15) were withdrawn, leaving the two counts inrelation to the October 9 robbery.

The November 2 information included charges contrary to ss. 344, 88(1), and 351(2) of the CriminalCode, allegedly committed on October 9. The November 4 information alleged charges contrary to ss. 344 and 351(2) of the CriminalCode, allegedly committed on October 15. [55] Having waived his preliminary inquiry, when Mr.

Monteith arrived at Crownside in Supreme Court for arraignment onFebruary 13, 2020, there were two indictments (both dated February 11, 2020) alleging three counts on one and two counts on the other. [56] Duncan A.C.J., when managing the scheduling of criminal jury trials during the COVID pandemic, sent Mr. Monteith a letteron June 4, 2020, which states in part: I am writing to follow up to our appearance in Crownside on May 21, 2020. At that time I advised that I would provide you withinformation regarding self-represented accused in criminal jury trials. Please find enclosed the following documents:

• Information for Self-Represented Accused in Criminal Proceedings (Jury Trial); • Juries Act. Please review these documents carefully and refer back to them as your matters proceed. … Nature of the Charges You are charged in three separate Indictments with offences for which you have elected to be tried by a court composed of a judge sitting with a jury. Currently each of these Indictments will be tried separately. The guidance provided herein applies to each jury trial.

CR 496466 You have been charged with offences contrary to ss. 344 and 351(2) of the Criminal Code , which are set out in more detail in the Indictment dated February 11, 2020. The charges allege that on or about the 9 th day of October 2019, at or near Dartmouth, in the County of Halifax in the Province of Nova Scotia you unlawfully robbed the employees of Scotiabank; and further, did with intent to commit an indictable offence have you face masked. The maximum penalty for the offence of: 1. Count 1 of the Indictment –

section 344 is: life imprisonment 2. Count 2 of the Indictment – section 351(2) is: 10 years imprisonment CR. 496395 You have been charged with offences contrary to ss. 344 , 88(1) and 351(2) of the Criminal Code which are set out in more detail in the Indictment dated February 11, 2020.

The charges allege that on or about the 15 th day of October 2019, at or near Dartmouth, in the County of Halifax in the Province of Nova Scotia, you unlawfully robbed the employees of Scotiabank; and further, did unlawfully have in your possession a weapon or imitation of a weapon, to wit, a knife, for a purpose dangerous to the public peace or for the purpose of committing an offence; and further, did with intent to commit an indictable offence have your face masked. The maximum penalty for the offence of: 1. Count 1 of the Indictment –

section 344 is: life imprisonment 2. Count 2 of the Indictment – section 88(1) is: 10 years imprisonment 3. Count 3 of the Indictment – section 351(2) is: 10 years imprisonment [ 57 ] On September 30, 2020, the Crown joined the two indictments. On December 9, 2020, Mr. Monteith brought an abuse of process application in before Boudreau J. regarding the joinder. She dismissed the application on December 9, 2020, and stated: I would have to say that Mr. Monteith’s concerns do appear to be a moving target, in that it’s difficult to ascertain concretely what the concerns, but it appears that Mr.

Monteith is saying that he is prejudiced in the fact that the Crown has filed this new indictment to replace the two other ones. The Crown has provided me, or pointed out to s. 524 of the Criminal Code which, based on the case law before me, does appear to contain, frankly, the full answer to the concerns of Mr.

Monteith and I note 524 says at subsection 1: Subject to subsection 3, the prosecutor may, whether the charges were included in one information or not, prefer an indictment against any person who has been ordered to stand trial in respect of any charge on which that person was ordered to stand trial or any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry. In addition to, or in substitution for, any charge on which that person was ordered to stand trial.

At 1.1 it says, If any person has not requested a preliminary inquiry under subsection 536(4), or 536.1(3) into the charge or was not entitled to make such a request, the prosecutor may, subject to subsection 3, prefer an indictment against a person in respect of a charge set out in an information or informations or any included charge at any time after the person has made an election, re-election, or deemed election on the information or informations.

And I also note subsection 1.2, If indictments may be preferred under both subsections 1 and 1.1, the prosecutor may prefer a single indictment in respect of one or more charges referred to in subsection 1 combined with one or more charges or included charges referred to in subsection 1.1. I also, for the record, would note subsection 2 of that same

section that talks about situations where an accused would need to consent, however that talks about a situation for a charge that is not referred to in the subsections which, as I understand that

section and as I’ve always understood that section, is to mean if it was a new charge then that would involve potentially some involvement from the accused. In this particular case, as has been indicated, the charges before the court remain the charges before the court. They have always been the same since they have been…since they have reached our court and since Mr. Monteith was committed to come to this court. I…my task today was to determine whether, based on the context of what Mr. Monteith is concerned about, whether there was, I’ll call it,

irregularity in the proceedings since the matter has come to our court that would somehow prejudice Mr. Monteith or somehow create asituation where, as he says, there was unfairness and, being completely frank, having looked at what’s happened so far, I see noirregularity in the proceedings so far in what’s come before us. I know Mr. Monteith feels differently and I appreciate that, but I see noabuse of process here, I see no reason to intervene at this point.

At this point, the two active or live indictments as we sit here today arethe two that I have already mentioned: the five-count that has recently been laid and the three-count that had been laid earlier. I note the cases that Mr. Monteith provided to me were, frankly, easily distinguished because they related to situations that are not thesituation before the court. So consequently, Mr. Monteith, I am dismissing your motion in abuse of process. [58] Mr. Monteith now makes an application for severance. Law and Analysis [59]

Section 591 of the Criminal Code deals with joinder and severance: Joinder of counts 591

(1) Subject to

section 589, any number of counts for any number of offences may be joined in the same indictment, but the countsshall be distinguished in the manner shown in Form 4. Each count separate

(2) Where there is more than one count in an indictment, each count may be treated as a separate indictment. Severance of accused and counts

(3) 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. Order for severance

(4) An order under subsection (3) may be made before or during the trial but, if the order is made during the trial, the jury shall bedischarged from giving a verdict on the counts (

a) on which the trial does not proceed; or (

b) in respect of the accused or defendant who has been granted a separate trial. … [60] In R. v. Last, 2009 SCC 45, Deschamps J., explained the law regarding severance and stated variously: [14] It is noteworthy that, save for murder, s. 591(1) of the Code places no restrictions on the number of counts that can be triedtogether on a single indictment. Under s. 591(3)(a), however, a court may order that the accused be tried separately on one or more of thecounts “where it is satisfied that the interests of justice so require”. As noted by this Court in R. v.

Litchfield, (SCC),[1993] 4 S.C.R. 333, the absence of specific guidelines for granting severance requires that deference be afforded to a trial judge’s rulingto the extent that he or she acts judicially and the ruling does not result in an injustice: The criteria for when a count should be divided or a severance granted are contained in ss. 590(3) and 591(3) of the Code. These criteriaare very broad: the court must be satisfied that the ends or interests of justice require the order in question.

Therefore, in the absence ofstricter guidelines, making an order for the division or severance of counts requires the exercise of a great deal of discretion on the partof the issuing judge.

The decisions of provincial appellate courts have held, and I agree, that an appellate court should not interfere withthe issuing judge’s exercise of discretion unless it is shown that the issuing judge acted unjudicially or that the ruling resulted in aninjustice. [Emphasis added; pp. 353-54.] … [16] The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance isrequired in the interests of justice, as per s. 591(3) of the Code.

The interests of justice encompass the accused’s right to be tried on theevidence admissible against him, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effectivemanner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on anunrelated count. [17] Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed whendeciding whether to sever or not.

The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to theaccused and the public interest in a single trial. It is important to recall that the interests of justice often call for a joint trial. Litchfield,where the Crown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example.Severance can impair not only efficiency but the truth-seeking function of the trial. [18] The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served

in a particular case, avoiding an injustice.

Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co-accused persons… [ 61 ] In R. v.

Durant , 2019 ONCA 74 , Watt J.A., for the court, explained what the phrase “interests of justice” means in the context of joinder and severance (citations omitted): [71] Orders for severance of counts under s. 591(3)(

a) are discretionary. They do not issue as of right. The

section confers a discretion and sets a standard governing its exercise. To engage the discretion, the judge must be satisfied that “the interests of justice” require severance. But s. 591(3)(

a) is unrevealing of the factors or considerations of which the judge may or must take account in deciding whether “the interests of justice” require severance. [72] In general terms, the phrase “interests of justice” endeavours to balance an accused’s interest in being tried on evidence properly admissible against him or her and society’s interest that justice be done in a reasonably efficient and cost-effective manner… [73] Over time courts have added content to the ubiquitous phrase “interests of justice” as it appears in s. 591(3)(a).

They have done so by designating a number of factors as worthy of consideration in determining where the interests of justice lie in any factual matrix, but counselling against the dispositive influence of any specific factor.

Illustrative of the factors are these: i. general prejudice to the accused as a result of the influence of the volume of evidence adduced and the effect of verdicts across counts; ii. the legal and factual nexus between or among counts; iii. the complexity of the evidence; iv. the desire of the accused to testify on one or more counts but not on another or others; v. the possibility of inconsistent verdicts; vi. the desire to avoid a multiplicity of proceedings; vii. the use of evidence of similar acts; viii. the length of trial; ix. prejudice to the accused’s right to be tried within a reasonable time; and x. the existence or likelihood of antagonistic defences.

Intention to testify in relation to one set of charges but not the other [ 62 ] In Last , Deschamps J. discussed the significance of an accused’s stated intention to testify in relation to once charge, but not another, and the requirement that the stated intention be both subjectively and objectively justifiable: [25] In assessing the accused’s testimonial intention on a severance application the underlying concern is for the accused’s ability to control his defence, and, more specifically, his right to decide whether or not to testify with respect to each of the counts unimpaired by inappropriate constraints. [26] Both the Crown and the defence submit that the accused’s intention should be objectively justifiable.

This requirement is, indeed, a threshold. The accused’s expression should have both a subjective and an objective component. However, while a formulaic expression of a subjective intention is not sufficient in and of itself to discharge the accused’s burden to have the counts severed, the trial judge should not substitute his or her own view for that of the accused and determine that the accused should testify or not. Rather, the trial judge must simply satisfy him- or herself that the circumstances objectively establish a rationale for testifying on some counts but not others.

The 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 information could consist of the type of potential defences open to the accused or the nature of his testimony: Cross , at p. 421.

However, the accused is not bound by his stated intention; he remains free to control his defence, as the case unfolds, in a manner he deems appropriate. [ 63 ] Justice Deschamps emphasized that such a stated intention to testify is a factor to be given significant weight when balancing it against the others: [27] While an accused’s provisional intention with respect to testifying is certainly a consideration which should be given significant weight, it is but one factor to be balanced with all the others.

An accused’s stated and objectively justifiable intention to testify on some but not all counts is not necessarily determinative of a severance application. It can be counterbalanced by other circumstances that the judge finds may prevent the accused from testifying, or be outweighed by factors that demonstrate that the interests of justice require a joint trial. [ 64 ] In R. v. Moore , 2020 ONCA 827 , the unanimous court discussed severance when an accused asserts that he wants to testify on one set of charges but not another (citations omitted):

[10] Decisions on applications for severance, whether of counts or accused, involve the exercise of discretion. Orders for severance donot issue as of right. To engage the discretion, the trial judge must be satisfied that the "interests of justice" require severance. Beyondthat, s. 591(3)(

a) does not reveal the factors or considerations of which the trial judge must take account… [11] The phrase "the interests of justice" acknowledges and seeks to balance an accused person's interest in being tried on the evidenceproperly admissible against them on the one hand, and society's interest that justice be done in a reasonably efficient and cost effectivemanner on the other…The "interests of justice" are not commensurate with the "interests of the accused", or the accused's perception ofthe fairest trial possible. [12] Over time, the authorities have poured content into the phrase "the interests of justice".

They have done so by designating severalfactors as worthy of cognizance in deciding where "the interests of justice" settle in the factual intricacies of individual cases. But thosesame authorities have underscored that no single factor is dispositive of the severance decision… [13] Among the factors the authorities have identified as relevant to determination of the severance issue, two are invoked here as ofimportance.

Each warrants brief consideration. [14] First, the desire to testify on some but not all counts. [15] As a general rule, the asserted desire of an accused to testify on one or more of several counts, but not on others, is accordedsubstantial weight. But it must be more than a barren assertion. There must be some objective reality to it grounded in the evidencereasonably anticipated at trial. This factor is not dispositive.

Others may overpower it, such as whether there is any significantdisproportion in the strength of the Crown's case as between or among the various counts… [16] Second, across counts use of evidence. [17] Severance and the admissibility of evidence across counts are different issues with different burdens of proof. One is a rule ofpleading, the other a rule of evidence. Severance has to do with the propriety of joinder of counts for different offences in the samecharging document. Severance requires that the accused demonstrate, on a balance of probabilities, that it is required by the interests ofjustice.

In contrast, the admissibility of evidence across counts requires the Crown to show, on a balance of probabilities, that theevidence should be admitted by exception to the rule excluding evidence of misconduct extrinsic to that charged in the individual count.Severance is often denied in cases in which evidence on each count is admissible across other counts.

But it does not follow thatseverance is guaranteed absent across counts application of the evidence… [65] The court in Moore reiterated that an accused’s assertion that he intends to testify in relation to one charge but not another is asignificant consideration, but is not dispositive: [45] The stated intention of an accused to testify on some counts but not others in a multicount indictment is a factor that is "givensignificant weight, it is but one factor to be balanced with all the others": Last, at para. 27. It is not dispositive.

It is not a "get a separatetrial card" which, when played, wins the hand. [66] Nonetheless, in Last, the court said that an objectively justifiable stated intention to testify on one set of counts and not another,might not constitute a significant factor if an accused’s decision to testify would likely be the same in relation to both counts: [30] I conclude that although Mr.

Last’s intention to testify on one set of counts and not the other was objectively justifiable, it didnot constitute, in this case, a significant factor in view of the likelihood that his decision whether or not to testify would be the same inrelation to both sets of counts. [67] In R. v.

Steele, 2006 BCCA 114, Huddart J.A., for the court, upheld the trial judge’s decision to deny severance, even thoughthe accused had expressed an intention to testify in relation to certain allegations but not others because there would be little prejudice tothe accused: [15] On the record I can find no injustice in the trial judge’s decision.

While the expression by counsel of a defendant’s desire totestify is a factor to be given substantial weight, as the trial judge recognized, that expression of desire in and of itself will not alwaysoutweigh all the other factors when a trial judge comes to decide what is in the interests of justice. Much will depend on the prejudice tothe accused. [16] In this case, the only prejudice suggested was that he might have been acquitted on Count 4 were he to offer an explanationfor the presence of his thumbprints on the rear window frame. The issue was identity on all counts.

There was no significantdisproportion in the strength of the Crown’s case on Count 4 relative to the other counts. The evidence of the neighbour, including herdescriptions of the three young people she observed on 21 October and the car in which they departed was circumstantial evidencerelevant to the 30 October counts. So was the evidence of the thumbprints, whatever might have been the result of a separate trial onCount 4. Effectiveness of limiting jury instructions [68] The Crown suggests in this case that a limiting jury instruction would be sufficient to address any potential prejudice to Mr.Monteith.

They rely on R. v. Corbett, (SCC), [1988] 1 S.C.R. 670, where Dickson C.J.C. stated: 37. The balance struck by the combination of the Canada Evidence Act, s. 12, and the requirement for a clear direction fromthe judge is admirably summed up in the following passage from the judgment of Martin J.A. in R. v. Davison, DeRosie andMacArthur (1974), (ON CA), 20 C.C.C. (2d) 424 (Ont. C.

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