Joinder and Severance

There is no limit on the number of counts that may be joined together in the same indictment or information, except in the case of murder. Section 589 of the Code provides that no count may be joined to a murder charge unless it arose out of the same transaction. Otherwise, provided the various counts have at least some connection in time and place, they may be tried together. It is important to note that joining the counts together does not make the evidence of one count admissible on any other count, unless the evidence meets the standard of similar fact evidence. Indeed, a trial Judge now has the discretion to permit the joinder of offences together even if the offences are a mixture of indictable and summary conviction offences. Summary conviction offences should not be joined with indictable offences unless the trial of the indictable offence is to take place in Provincial Court.

Joinder and severance relate both to the counts and to the accused. In other words, the court is given discretion to join or sever counts or to join or sever accused persons. In some instances a separate trial is preferable. For example, where a joint trial would deprive one accused of the benefit of the evidence of his co-accused , the court may order separate trials. On a joint trial one accused does not have the power to force the other accused to take the witness stand, even if the evidence of that co-accused would be beneficial. But on a separate trial the co-accused may be subpoenaed to testify, thereby ensuring the benefit. In fact, it has been held to be inappropriate for a trial Judge to refuse an application for severance by concluding that the co-accused’s evidence would not be credible.

In any event the general principle is that jointly charged accused will be jointly tried. The onus therefore is upon the applicant to demonstrate that it is in “the interests of Justice” to sever either the accused or the counts in an indictment. The Crown has a duty not to overload an indictment with unnecessary counts or particulars. An accused is entitled to a manageable and fair trial that will be understandable to members of the jury. Thus, the trial Judge, exercising her power to sever, will often solve an overloaded indictment.

2022 Criminal Trial Strategies - Patrick J Ducharme

The above is the an excerpt of Patrick J Ducharme’s book, Criminal Trial Strategies, available at Amazon or in bulk through MedicaLegal Publishing.

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