When a person is charged with multiple offences, there are rules about how many trials should take place. Issues with respect to single trials with multiple counts can be very complicated and require a great deal of analysis. It can be preferable to have one trial per count, but there are many situations where that is not the case.
Section 591 of the Criminal Code of Canada outlines the rules that help to determine how many trials will take place. Section 591 does not apply to the charge of Murder. The Crown initially decides how many counts there will be and how they wish to proceed. It is generally up to the defence to ask the Court to apply Section 591 and separate counts where it is proper to do so.
Section 591 of the Criminal Code of Canada:
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 counts shall 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.
One of the leading cases interpreting Section 591 is the Supreme Court of Canada case, R. v. Last, 2009 SCC 45.
 Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed when deciding whether to sever or not. The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to the accused 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.
The Supreme Court of Canada outlined a number of factors to be considered when deciding matters under Section 591. The factors provided are not the only considerations, but should help to guide the analysis.
Non-Exhaustive List of Factors to be Considered:
- 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
the existence of antagonistic defences as between co‑accused persons
Any other relevant factor should be considered at this stage of the analysis. Recent Manitoba case law has upheld this analysis as correct in cases involving joining or severing counts.