Court File and Parties

Ontario Court of Justice

Date: 2020-11-26

Court File No.: Brampton 20-5683

Between:

Her Majesty the Queen

— and —

Jason Kerr

Before: Justice P.T. O'Marra

Heard on: November 17, 2020

Reasons for Judgment released on: November 26, 2020

Counsel

A. Mavridis — counsel for the Crown

C. Zeeh — counsel for the accused Jason Kerr

Reasons for Judgment

O'Marra, P.T., J.:

Introduction

[1] These are my reasons for judgment in the trial of Jason Kerr. The trial started on November 17, 2020 and concluded the same day. For clarity, this trial was conducted with the assistance of the Zoom platform. Mr. Kerr was in custody but in isolation due to Covid-19 exposure while at the Maplehurst Detention Facility. Mr. Kerr was unable to be transported to the courthouse for his trial. However, Maplehurst arranged for Mr. Kerr to be present and participate in his trial through the Zoom platform. I want to express my gratitude to the Superintendent and the Deputy Superintendent of Maplehurst for their assistance in ensuring that Mr. Kerr was present for his trial, through this medium.

Overview

[2] Mr. Kerr was charged on Friday, June 19, 2020, that he failed to comply with a Probation Order (x2); failed to comply with a Release Order; failed to comply with an undertaking; failed to comply with a Weapons Prohibition Order; and uttered a death threat to Paul Pytel.

[3] The following facts were not in dispute.

[4] On June 17, 2020, Mr. Kerr was released from custody on a Release Order issued by a Justice of the Peace, in Brantford. The proposed and accepted surety for Mr. Kerr's release was Mr. Pytel.

[5] On June 18 and 19, 2020, Mr. Kerr was subject to a sundry of court orders and conditions, which he is presently charged with breaching. He was also the benefactor of a scheme to perpetrate a fraud on the court in Brantford to secure his release on June 17, 2020. The principle participant in the conspiracy was Mr. Pytel, the Crown's main protagonist in this trial. Mr. Kerr had never met Mr. Pytel before his bail hearing. Through a 3rd party, or a friend, Mr. Pytel was paid $2000 to present himself and lie under oath to the court as a surety for Mr. Kerr.

[6] The day after Mr. Kerr was released and ordered to reside with Mr. Pytel at his Brampton apartment, Mr. Kerr and Mr. Pytel returned to Mr. Kerr's former residence in Brantford by taxi. While the taxi waited for one to two hours, Mr. Pytel loaded his personal belongings into the taxi, and they returned to Brampton.

The Allegations

[7] Mr. Pytel alleged that while they both consumed drugs and alcohol, Mr. Kerr reached into a black hockey/duffel bag and produced a shot gun and shot gun ammunition. Mr. Kerr stated that he needed to hide the shot gun and ammunition. It was alleged that Mr. Pytel agreed to help him and together they wrapped up the shot gun "pieces" and the ammunition in a t-shirt and placed it in the drop ceiling of the closet in Mr. Pytel's bedroom. Mr. Pytel alleged that Mr. Kerr said to him that if he told anyone about the hidden shotgun that he would kill Mr. Pytel.

Additional Facts

[8] Early the next morning after Mr. Kerr went out for coffee, Mr. Pytel called the police to advise that he was the surety for Mr. Kerr, and that Mr. Kerr was not abiding by his conditions and that Mr. Kerr had a shotgun in his home. While he was on the phone to the police, Mr. Kerr returned and entered into Mr. Pytel's residence.

The Weapons

[9] The police attended and secured Mr. Pytel's residence which was only occupied by Mr. Kerr at the time, and successfully applied for a search warrant. The police executed the search warrant and found the following in the drop ceiling in the closet of Mr. Pytel's bedroom:

• A black expandable baton
• Four (4) Samurai swords
• Five (5) shotgun shells
• A silver barrel
• A pump and silver loading chamber from a Remington Aims Co. shotgun

[10] Mr. Kerr surrendered to the police and was arrested.

[11] The loading chamber, the shotgun shells and the silver barrel were wrapped in a white t-shirt with green frog tape. The shotgun was inoperable. There was no forensic testing on any of the items that were seized.

[12] An agreed statement of fact with appendices was filed and marked as exhibit #1. Appendix A sets out a series of photographs of Mr. Kerr's apartment, the drop ceiling where the items were found, and the items splayed out.

[13] Further additional facts include that on June 18, 2020, Mr. Pytel called the police on five (5) occasions regarding Mr. Kerr. Mr. Pytel's first call was at 5:16 pm during which time he complained to the police that Mr. Kerr was breaching his release conditions. Two police officers attended Mr. Pytel's residence. Both men were located inside the residence. No charges were laid. Mr. Pytel's final call was placed at 9:52 pm only to complain about the two police officers that previously attended earlier in the evening.

The Trial Evidence

[14] The Crown called two witnesses: Javindar Kahipple, a taxi driver and Mr. Pytel. Mr. Kerr did not testify nor called any evidence.

Javindar Kahipple's Evidence

[15] Mr. Kahipple was a taxi driver from Milton. After Mr. Kerr was released from Maplehurst, he was hired by Mr. Kerr to drive him and Mr. Pytel from Brampton to Brantford. The purpose of the trip was for Mr. Kerr to retrieve his personal belongings from his mother's house in Brantford and to move in with Mr. Pytel in order to fulfill the residency condition of his Release Order.

[16] Initially, Mr. Kahipple testified that he only drove one person to Brantford, Mr. Kerr. He stated that he waited outside approximately one to two hours while Mr. Kerr gathered his belongings. Mr. Kahipple observed that Mr. Kerr brought the following items out of the residence: A bicycle, large black sports bag, construction hat, dirty laundry and clothes, 3 or 4 large sized pictures, roofing tools, and one or two old computers. Some of the items were left behind on the road. Mr. Kahipple drove Mr. Kerr to a gas station to use the ATM to withdraw money.

[17] In cross-examination, Mr. Kahipple testified that he thought that he drove Mr. Kerr to Brantford on two occasions. He testified that one occasion was in the afternoon and the second time was in the morning. But never specified the dates. Initially he maintained that on both trips Mr. Kerr was alone. However, later in his cross examination he conceded that a second person attended to the residence in Brantford to pick up his belongings.

[18] Mr. Kahipple did hear Mr. Kerr call his mother and asked where she was as he was bringing her flowers. He said that he did not know Mr. Kerr before these trips and was not aware of Mr. Kerr's or the other individual's drug use.

Paul Pytel's Evidence

[19] Mr. Pytel testified that due to the pandemic he was laid off from his position as a custodian with the school board. Mr. Pytel confirmed his extensive criminal record that contained 13 convictions. His last conviction was in 2011.

[20] Mr. Pytel testified that on June 17, 2020 he attended Mr. Kerr's bail hearing in Brantford. He admitted that he lied to the court that he knew Mr. Kerr. In fact, he never met Mr. Kerr before the bail hearing. Mr. Pytel was hired by a friend and paid $2000 to act as Mr. Kerr's surety. Mr. Pytel lied to the court about not being in possession of any weapons. What's more, Mr. Pytel had an expandable baton and several samurai swords hidden in the ceiling of his bedroom closet.

[21] The evening of June 17, 2020, Mr. Kerr attended Mr. Pytel's residence with a back pack that contained drug paraphernalia and crystal methamphetamine.

[22] The next morning on June 18, 2020, Mr. Kerr hired a taxi and both he and Mr. Pytel attended Mr. Kerr's residence in Brantford. Mr. Pytel testified that he watched Mr. Kerr remove several items from his residence such as clothes, tools, laptops, and a bicycle. He recalled that Mr. Kerr brought out a hockey bag and two or three backpacks. Mr. Pytel was not aware of the contents inside the bags.

[23] He estimated that he waited in the taxi for approximately two hours for Mr. Kerr. Afterwards, they attended an ATM where Mr. Kerr withdrew the balance of the fee that was owed to him for acting as his surety. Mr. Pytel testified that he received some money from Mr. Kerr the prior evening.

[24] Mr. Pytel testified that they returned to his apartment in Brampton later in the afternoon and started drinking and taking drugs.

[25] According to Mr. Pytel, at approximately 9:00 pm while Mr. Kerr was seated on a couch, he reached into his black duffel bag (that same bag that he saw Mr. Kerr remove from his residence), brought out a disassembled shotgun and a Ziplock bag that contained 6 blue and red shotgun shells. Mr. Pytel testified that Mr. Kerr stated that he wanted to hide the shotgun somewhere in his apartment. At this point, both men put on gloves and masks and placed the disassembled shotgun and the shells on the bed. Mr. Pytel claimed that he was fascinated with the shotgun. He placed the items in one of Mr. Pytel's t-shirts and wrapped the t-shirt with green painting/frog tape. Then he hid the shotgun in the drop ceiling of his bedroom closet. According to Mr. Pytel, Mr. Kerr threatened that if Mr. Pytel told anyone about the shotgun that he would kill him. Mr. Pytel testified that he took the threat seriously and was afraid.

[26] Mr. Pytel testified that it was his idea to hide the shotgun in the ceiling as it was the same location where he had hidden other weapons such as an expandable baton and several swords.

[27] Mr. Pytel testified that early the next morning after Mr. Kerr went out to get a coffee, he decided to call the police about the shotgun. He testified that he was fearful of Mr. Kerr. When Mr. Pytel went outside to call the police, Mr. Kerr returned from the store and asked him what he was doing. Mr. Pytel lied and said that he was calling a friend. Mr. Pytel called the police and waited outside of his residence for the police to arrive.

[28] In cross examination, Mr. Pytel admitted that he only told the police that only the swords and the shotgun were in the ceiling and not his baton. In fact, Mr. Pytel assigned ownership of the baton to Mr. Kerr and told the police that he saw Mr. Kerr bring the baton out of the same bag as the shotgun.

[29] In cross examination, Mr. Pytel admitted that he also lied at Mr. Kerr's bail hearing about his knowledge regarding Mr. Kerr's criminal record. He agreed that he was only to act as a surety through that weekend until Monday, June 22. The plan was for Mr. Kerr to stay at his apartment for four (4) days, then find another surety that he could live with and return to Brantford to arrange a switch in the surety.

[30] Mr. Pytel admitted that he is an alcoholic and addicted to crack cocaine. He admitted that on the evening of June 18th, he consumed most of a 40 oz. bottle of vodka, smoked crack cocaine and shared in Mr. Kerr's crystal methamphetamine. Despite the heavy alcohol and drug consumption that evening, Mr. Pytel felt that the he had a good recollection of the evening. However, Mr. Pytel had no memory of calling the police on five (5) occasions that same evening. He stated that he did recall speaking with two police officers but did not remember that he complained about Mr. Kerr threatening him with a baseball bat. He also did not recall admitting to the police later that he fabricated that allegation. In cross-examination, Mr. Pytel conceded that Mr. Kerr did not violate any of his terms of his release that day.

[31] In cross examination, Mr. Pytel contradicted Mr. Kahipple's statement that Mr. Kahipple never met Mr. Kerr before he drove him to Brantford and back. Mr. Pytel described Mr. Kahipple as a friend of the Kerr family. That was the reason Mr. Kahipple agreed to drive Mr. Kerr and Mr. Pytel to Brantford and remained for approximately two hours as he gave Mr. Kerr a favorable taxi rate.

[32] In cross examination, Mr. Pytel admitted that he was mistaken when he stated that both the shotgun and ammunition were wrapped in a t-shirt but rather in a towel.

[33] Mr. Pytel denied counsel's assertion that the shot gun and the ammunition were actually his.

Positions of the Parties

[34] The Crown argues that Mr. Pytel's evidence should be believed despite his complexities and human frailties. On the whole, it was submitted that the evidence the crown presented is proof beyond a reasonable doubt. That Mr. Kerr did threaten Mr. Pytel's life. That the previous day, he was in possession of an inoperable shotgun and live ammunition. That he left the residence without his surety the morning of June 19.

[35] On the other hand, the defence submitted that Mr. Pytel's evidence should leave me with considerable doubt. That Mr. Pytel's motive to call the police was in order to divest himself of his surety responsibilities by telling the police that the shot gun and shells hidden in the ceiling were Mr. Kerr's.

The Law

General Principles

[36] As mentioned in the introduction, Mr. Kerr is charged with six criminal offences under the Criminal Code of Canada, R.S.C., 1985, c. C-46. As such, Mr. Kerr is presumed to be innocent unless and until the Crown has proven his guilt beyond a reasonable doubt. The presumption of innocence is a cornerstone of our criminal justice system, originally embedded in our common law tradition and now guaranteed as a fundamental legal right under our constitution.

[37] As Justice Malloy recently wrote in R. v. Nyznik, 2017 ONSC 4392:

The presumption of innocence, and along with it the standard of proof beyond a reasonable doubt, are important safeguards to ensure that no innocent person is convicted of an offence and deprived of his liberty. Without these protections, there would be a serious risk of wrongful convictions -- an outcome that cannot be accepted in a free and democratic society.

The concept of proof beyond a reasonable doubt is not an easy one to define. It is clearly more rigorous than the balance of probabilities standard applied in civil cases. The balance of probabilities requires the party bearing the onus to establish that the proposition they advance is "more likely than not" -- i.e. better than 50/50. In R. v. Lifchus, the Supreme Court of Canada held that the following definition would be an appropriate instruction for a criminal jury:

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

This instruction, commonly referred to as "the W. (D.) Instruction, with very little modification, is now the standard instruction on reasonable doubt given to criminal juries throughout Canada. The same standard is applied by judges sitting without a jury on criminal trials. The bottom line is that probable or likely guilt is insufficient. If all I can say is that the defendants in this case are likely guilty, I must acquit. It would not be safe to convict someone of a criminal offence with only that degree of confidence. Before I can find the defendants guilty, I must be sure that they committed the offence charged.

[38] Using this analysis, I must be certain that Mr. Kerr, and in course of the evening was in possession of ammunition, threatened to kill Mr. Pytel and left the residence and therefore breached four court orders.

[39] Trials more often than not involve an assessment of the credibility and reliability of the witnesses.

[40] Assessing credibility is not a science. Often times it is difficult for a court to articulate with precision the complex intermingling of impressions that emerge after observing and listening to witnesses and attempting to reconcile the various versions of the events.

[41] It is clear that what is required is that my reasons show that I have seized the substance of the issue or issues and that I have directed my mind to the decisive question of whether evidence presented, including the evidence as a whole, raises a reasonable doubt as to Mr. Kerr's guilt.

[42] If the evidence is contradictory or confusing, I have to deal with these contradictions.

[43] This does not necessarily mean that I must reconcile every fragility in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out.

[44] However, I must at least recognize the most helpful factors when assessing credibility which includes the following:

1. The consistency of a witness' evidence within itself.
2. The consistency of a witness' evidence with other witnesses.
3. The consistency of a witness' evidence in the overall picture that evolved at trial.
4. The objectivity of a witness' evidence.
5. The frankness of a witness.
6. Was the witness clear and consistent in his or her description of the events?
7. Was there a tendency to overstate?

[45] I can believe none or some of a witness' evidence. (See: R v R.E.M., 2008 SCC 51, at para. 65). I am entitled to accept parts of a witness's evidence and reject other parts. As well, I can attribute different weight to different parts of the evidence that the court has accepted. (See: R. v. Howe, para. 44.)

[46] The Crown's case rises or falls on the credibility and reliability of Mr. Pytel evidence. Mr. Pytel fits the definition of a Vetrovec witness and should be regarded as an unsavory witness. If, a jury had been hearing the case, I have no doubt it would be incumbent on the court to issue the jury a Vetrovec warning. In my view, due to Mr. Pytel's lengthy criminal record, his ongoing criminal lifestyle and his involvement as a party in hiding a shotgun, albeit an inoperable shotgun with live ammunition, Mr. Pytel clearly falls into this category.

Vetrovec Witness

[47] Although there is no legal requirement that there be corroboration, it would be dangerous to convict solely on the basis of the testimony of an unsavoury witness. However, there is no legal requirement that the evidence of any witness, including an unsavoury witness, be corroborated by other evidence. As stated by Justice Watt in R. v. Pelletier, 2012 ONCA 566 at para. 64:

First, as a matter of general principle, the evidence of a single witness is sufficient to support a conviction of any offence other than treason, perjury or procuring a feigned marriage: R. v. Khela, 2009 SCC 4, at para. 2.

[48] Justice Watt stated in the same decision, at paragraph 68, that:

After considering the totality of the evidence, a trier of fact is entitled to believe the evidence of a disreputable witness, even on disputed facts that are not otherwise confirmed, if the trier is satisfied that the witness, despite his or her frailties or shortcomings is truthful.

[49] The decision whether to give a Vetrovec warning is discretionary and attracts deference on appellate review: R. v. Brooks, 2000 SCC 11, paras. 2-3. However, in certain circumstances a Vetrovec warning will be mandatory: R. v. Bevan, at para. 34.

[50] As was held in Brooks, there are two primary factors that the trial judge will assess in determining whether a Vetrovec warning is necessary:

In summary, two main factors are relevant when deciding whether a Vetrovec warning is necessary: the witness's credibility, and the importance of the witness's testimony to the Crown's case. No specific threshold need be met on either factor before a warning becomes necessary. Instead, where the witness is absolutely essential to the Crown's case, more moderate credibility problems will warrant a warning. Where the witness has overwhelming credibility problems, a warning may be necessary even if the Crown's case is a strong one without the witness's evidence. In short, the factors should not be looked to independently of one another but in combination.

[51] As such, the trial judge will have to undertake an assessment into the importance of the witnesses' testimony to the Crown's case, and the more important a witness is to the Crown's case, the greater the need for the trial judge to give a Vetrovec warning.

[52] A trial judge is required to touch upon four elements during the warning to the jury, which were set out in the Ontario Court of Appeal decision of R. v. Sauvé as follows:

(1) drawing the attention of the jury to the testimonial evidence requiring special scrutiny;

(2) explaining why this evidence is subject to special scrutiny;

(3) cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and

(4) that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused.

Corroborative Evidence

[53] With respect to the fourth element mentioned above, specifically the instruction to the jury that they should look for evidence from another source to demonstrate that the impugned witness is telling the truth, the jury is effectively being required to review the other evidence for "corroborative evidence" in support of the impugned Crown witness. In order for such evidence to be considered corroborative of the Vetrovec witness, the evidence is subject to two preconditions; (i) independence and (ii) materiality.

Credibility Finding

[54] As I stated at the outset of my judgement, the only issue for the court to decide is whether or not I accept Mr. Pytel's evidence or am I left in a state of reasonable doubt by it. There is little doubt that Mr. Pytel's evidence is essential to the Crown's case and his credibility is paramount.

[55] Almost all of Mr. Pytel's evidence was not supported by extrinsic confirmatory evidence. Beyond his presence in the taxi to Brantford and back to Brampton, there was very little evidence from Mr. Kahipple that confirmed Mr. Pytel's story. Neither the fact that both Mr. Kahipple and Mr. Pytel observed a black hockey/duffle bad in Mr. Kerr's possession, nor the stop at an ATM to withdraw cash for Mr. Pytel's payment can be considered overwhelming confirmatory evidence. In my view, Mr. Kahipple was a less than honest witness regarding his relationship with Mr. Kerr. I do not believe that he was a truthful witness. He was inconsistent regarding the number of passengers that he drove to Brantford. It seemed incredulous that Mr. Kahipple would drive Mr. Kerr to Brantford and wait for him for close to two hours, unless he had a pre-existing and trusting relationship with Mr. Kerr. Therefore, I found Mr. Kahipple was not able to provide independent and material evidence that confirmed Mr. Pytel's testimony, other than on peripheral matters such as stopping at an ATM, the length of time they waited for Mr. Kerr and the hodgepodge of personal effects Mr. Kerr removed from his mother's residence that day. As a result, I find that Mr. Pytel's claimed observation that the shotgun retrieved from the same black bag was not as probative as the Crown suggested.

[56] I approached Mr. Pytel's evidence with extreme caution recognizing that he has made prior inconsistent statements on material matters, including inconsistent statements under oath at this trial and outright perjured statements at Mr. Kerr's bail hearing. I recognized that Mr. Pytel's record was somewhat dated. However, the most compelling reason his testimony was unreliable and unsafe, was the enormous amount of alcohol that he consumed while mixing crack cocaine and crystal methamphetamine, that evening.

[57] It is an accepted reality of criminal trials that evidence will frequently come before the courts from criminals, accomplices and ne'er-do-wells. Those are the individuals who frequent the company of lawbreakers. It may well be that someone who has committed terrible criminal acts may present as a credible, reformed and well-motived witness. (See: R. v. Lee, 2014 ONCJ 634, para. 25) Mr. Pytel does not fall within this category. I have no way of knowing whether any of Mr. Pytel's evidence is true. I have to reject it in its entirety.

[58] I did take into consideration that Mr. Pytel did not appear to display any particular contempt for Mr. Kerr and did not present as vindictive. However, given the unrepentant criminal perjury of Mr. Pytel in a previous proceeding, the lack of confirmatory evidence, contradictions that he told the police, his memory lapses due to alcohol and drug abuse that evening, the evidence of Mr. Pytel is not sufficient to sustain a criminal prosecution.

[59] One may wonder: Why did Mr. Pytel call the police and direct them to the location of the prohibited ammunition and weapons? The defence suggested that Mr. Pytel had a motive to fabricate a story that he was threatened by Mr. Kerr and that the shotgun and ammunition found in ceiling was Mr. Kerr's. It was suggested that his motive was to set up Mr. Kerr and then he would be relieved of his surety responsibilities. The defence suggested that since the police failed or refused to charge and remove Mr. Kerr from his apartment on an earlier occasion, Mr. Pytel was motivated to concoct a story that the actual hidden shotgun was Mr. Kerr's. I am not really in a position to speculate about Mr. Pytel's motivation as I have already found Mr. Pytel an unreliable and untrustworthy witness.

[60] As stated, there was no other evidence before me implicating Mr. Kerr in any crime. The burden of proof is on the Crown to prove the charges beyond a reasonable doubt. That burden has not been met. There was insufficient evidence before me to find Mr. Kerr guilty. Mr. Kerr is acquitted of all charges.

Released: November 26, 2020

Justice P.T. O'Marra