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PROCEDURE - Information or indictment - Joinder or severance of counts

Tuesday, March 12, 2019 @ 8:35 AM  


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Appeal by Durant from his conviction, by jury, of two counts of first degree murder. Two women involved in the sex trade were found dead from blunt force trauma, 29 months apart in the Niagara Region. Both had used cocaine before their death. The blood of both victims was found in the appellant’s residence. The appellant’s ex-wife testified at trial that she had assisted the appellant hide the body of a woman he admitted to having hit over the head with a hammer in their garage, days before the first victim was found. The second victim was in the company of the appellant when she was last seen alive. The trial judge admitted the evidence on each count as evidence of a similar act on the other count and refused to order separate trials on each count. He also admitted 34 intercepted telephone calls in which the appellant participated. He refused to discharge a juror acquainted with the second victim’s step-mother. He did not leave manslaughter as an available verdict on the count relating to the first victim.

HELD: Appeal allowed; new and separate trials on each count were ordered. The trial judge erred in admitting the evidence on one count as evidence of a similar act on the other count. He further erred in failing to sever the counts to require a separate trial on each. The conduct being compared in the two counts did not reveal a unique trademark or signature required when offered as proof of identity. When the evidence of similar acts was removed from the analysis, the result should have been severance of the counts, not joinder. The trial judge erred in failing to discharge the juror because he failed to consider the importance of the appearance of fairness in deciding the suitability of the juror to continue. He erred in failing to leave manslaughter as an available verdict on the count relating to the first victim. The narrative given by the appellant’s ex-wife provided an air of reality to manslaughter as an available verdict. The trial judge did not err in admitting the intercepted private communications as evidence. The failure to listen contemporaneously, as required by the authorization, did not result in recording anything that should not have been recorded.

R. v. Durant, [2019] O.J. No. 556, Ontario Court of Appeal, D. Watt, G. Huscroft and G.T. Trotter JJ.A., February 4, 2019. Digest No. TLD-March112019005