ONTARIO COURT OF JUSTICE

CITATION: R. v. Guimaraes, 2024 ONCJ 359

DATE: 2024 07 23

Toronto

BETWEEN:

HIS MAJESTY THE KING

— AND —

JOAO GUIMARAES

JUDGMENT RE: CONTEMPT OF COURT

Before Justice Brock Jones

Heard on May 6, 29, and July 9, 2024

Written Reasons Provided on July 23, 2024

P. Zambonini....................................................................................... counsel for the Crown

D. Sarikaya................................................................................... counsel for Mr. Guimaraes

Jones J.:

Introduction and Factual Overview

[1] On March 23, 2023, Jorge Astudillo was shot in the back by an unknown suspect. He suffered life-altering injuries. Following a police investigation, Jordan Gallie was identified as the man responsible. He was charged with a variety of offences, including aggravated assault (Criminal Code section 268) and discharging a firearm with intent to wound, maim, disfigure or endanger the life of another person (Criminal Code section 244(1)).

[2] A preliminary inquiry commenced on May 6, 2024. The Crown called Joao Guimaraes to testify in the morning. He was represented by counsel, Mr. Sarikaya, and had been for quite some time.

[3] When asked by the court clerk to affirm or be sworn on a holy book of his choice, Mr. Guimaraes told me, as the presiding judge, he was refusing to testify.

[4] I explained to Mr. Guimaraes the protections he was entitled to under section 13 of the Charter of Rights and Freedoms and section 5 of the Canada Evidence Act. Mr. Sarikaya indicated that his client was fully aware of his rights. I cautioned Mr. Guimaraes that there might be penal consequences for making such a decision. I asked him to reconsider after we took the lunch break.

[5] In the afternoon, he was called to the witness stand again. I directed him to be affirmed or sworn and informed him that he must answer questions. He responded that he still refused to testify.

[6] Mr. Sarikaya did not dispute his client had material evidence to provide at the preliminary hearing.

[7] Mr. Guimaraes’ testimony was not required for the Crown to meet the test for committal. He was not present at the time of the shooting. Instead, he was present when a search warrant was executed on a subsequent date, and a firearm was recovered from an apartment where he was present. His anticipated testimony would have been to explain if he had knowledge and control of the firearm, which the Crown alleges was the firearm used on March 23, 2023.

[8] I cited Mr. Guimaraes in contempt. A hearing was conducted on July 9, 2024.

[9] At the contempt hearing, Mr. Guimaraes testified and, in cross-examination, ultimately agreed to answer the questions Mr. Zambonini originally intended to ask him at the preliminary hearing.

[10] Following arguments, I reserved judgment. These are my written reasons.

Testimony of Mr. Guimaraes

[11] Mr. Guimaraes is 23 years old and a permanent resident. He was born in Brazil and immigrated to Canada when he was 12.

[12] He lived in downtown Toronto for most of his life in Canada. He dropped out of high school and began “running with the wrong crowd.” He has some grade 11 credits. He has been sporadically employed in different positions, including at restaurants and in construction.

[13] He is currently detained and housed in the general population at the Toronto South Detention Centre (“TSDC”). He explained that he refused to testify because he feared for his safety. While he was not explicitly threatened, if “word got around” that he testified against another inmate, his safety would be at risk.

[14] His cell door is often open, and anyone can walk in to confront him. Even if he were placed in protective custody at the jail, his understanding is that he would not always be safe. There is, unfortunately, no way to be truly secure from violence while at the TSDC. He provided examples of being in the showers or participating in the admittance and discharge procedures. Inmates are routinely in the presence of other inmates, including in the large bullpen.

[15] Had he been out of custody at the preliminary hearing, he “likely” would have testified. By contrast, in custody, he can’t separate himself from potential threats. He is always at risk.

[16] In cross-examination, he agreed that he had never been threatened regarding his testimony. Instead, the culture in jail drove his decision. The “code” is that you do not testify, and there are no exceptions. The consequences could be very serious.

[17] He also agreed that no one knew, as far as he was aware, that he was a witness in Mr. Gallie’s preliminary hearing (other than, presumably, Mr. Gallie.)

[18] After consulting with his lawyer, he agreed to answer the questions Mr. Zambonini would have asked him at the preliminary hearing. In his mind, there was an essential distinction between testifying against Mr. Gallie at his proceeding versus testifying for his benefit in this proceeding. Mr. Zambonini explained that a transcript of the questioning would inevitably be provided to Mr. Gallie as it constitutes disclosure in that case. Thus, Mr. Gallie would become aware of his testimony. Mr. Guimaraes still believed there was an important distinction between the two hearings.

Law of Contempt and Analysis

[19] Contempt of court refers to conduct “where a person, whether a party to a proceeding or not, does any act which may tend to hinder the course of justice or show disrespect to the court’s authority”: see the judgment of Chief Justice Dickson in B.C.G.E.U. v. British Columbia (Attorney General), 1988 3 (SCC), at para. 35.

[20] The Ontario Court of Appeal held in R. v. Carter that the essential elements of the offence consist of “interference with, or calculation to interfere with, due administration of justice”: [1993] O.J. No. 3135. The court clarified the test for criminal contempt in the subsequent case of R. v. Glasner (1994), 1994 3444 (ON CA), 93 C.C.C. (3d) 226 (Ont. C.A.). The court held that the actus reus of criminal contempt is conduct that seriously interferes with or obstructs the administration of justice or causes a serious risk of interference or obstruction. The fault requirement “calls for deliberate or intentional conduct, or conduct which demonstrates indifference… akin to recklessness”: p. 244; see also R. v. DaFonte, 2016 ONCA 532, at para. 17.

[21] When a witness refuses to be sworn or affirmed or refuses to answer questions after being sworn or affirmed, such conduct represents contempt in facie. It has been held that a provincial court judge, including one presiding over a preliminary inquiry, has jurisdiction to hear and decide the case: see R. v. Seecharran, 2016 ONSC 7642, at para. 43; R. v. B.K., [1995] 4. S.C.R. 186, 1995 45.

[22] The contemnor must be provided procedural fairness and an opportunity to “show cause” when he should not be held in contempt. Following my contempt citation, Mr. Guimaraes was presumed innocent. The court’s contempt power is discretionary, and its routine use should be discouraged: see Carey v. Laiken, 2015 SCC 17, at paras. 36-37. An alleged contemnor may have an explanation or reasonable excuse, have been acting in good faith, or have made an honest mistake. In those circumstances, the court may decline to make a finding of contempt.[^1] As the Court of Appeal in Dafonte states, “[a] court hearing a contempt charge must consider the accused’s explanation, including an apology, and then determine on all of the evidence whether the case has been made out beyond a reasonable doubt”: see para. 28.

[23] However, it is not a defence that the contemnor’s conduct in violation of the court's order was done for his own best interests or the interests of others. Nor is it a defence that the contemnor did not intend to prejudice the proceeding: see The Law of Contempt in Canada, 3rd Edition (Thomson Reuters, Toronto, 2023), Chapter 11, section 3, pages 318-321 for a review of these authorities.

[24] Mr. Sarikaya argued that a judge presiding over a preliminary inquiry does not have jurisdiction to find a witness in contempt for refusing to testify. He cited the Alberta Court of Appeal’s decision in R. v. Bubley, [1976] A.J. No. 553, at para. 10, leave to appeal to the Supreme Court of Canada refused. The Quebec Superior Court followed the decision in R. v. Marsden, [1977] Q.J. No. 190, at paras. 21 and 28), and the Ontario Court of Justice did so in R. v. Vuong, [1996] O.J. No. 1104, at paras. 10-14.

[25] He disputes that Justice Code’s decision in Seecharran is binding upon me. Rather, he takes the position that there is no measured analysis of the issue in the case, and the conclusion cannot be supported. While Justice Code did rely upon the Supreme Court of Canada’s decision in B.K., that was a decision which addressed an accused who uttered abusive language to the presiding judge at a preliminary hearing. The Supreme Court’s ruling was focused on this behaviour, as the provincial court judge did not find the appellant in contempt for refusing to testify: see para. 14.

[26] With respect, I cannot accept this argument. Justice Code’s decision does consider this issue, even if it was not the central issue before the court, and I am bound to follow it by virtue of stare decisis. In Seecharan, the accused refused to testify at his mother’s preliminary hearing. The Crown did not ask the provincial court judge presiding over the preliminary hearing to cite him in contempt. Instead, it brought a charge of obstruction of justice against him at a future date. In the Superior Court of Justice, the accused brought an application to exclude his testimony at his mother’s preliminary hearing which the Crown intended to introduce at his own trial for obstruction of justice on the basis that it was taken in violation of his rights under section 13 of the Charter. The application was successful.

[27] Justice Code noted at the end of his decision that when this situation arises – that is, a witness refuses to testify at a preliminary hearing – the provincial court judge presiding over the hearing may cite the witness in contempt as a possible remedy: see para. 43. The remarks cannot be construed as pure obiter dicta and, therefore, form part of the decision I must follow. Furthermore, I agree with Justice Code’s interpretation of B.K. that a preliminary hearing justice has jurisdiction to find someone in contempt for any conduct that occurred “in the face” of the court. The case is not limited to the narrow set of facts he identifies. As a matter of law, I conclude I have jurisdiction to find Mr. Guimaraes in contempt for refusing to testify.[^2]

[28] In the alternative, Mr. Sarikaya submits that I should have relied upon section 545 of the Criminal Code instead of resorting to the power of contempt. I could have remanded Mr. Guimaraes into custody for eight days, which would have been a proportionate penalty. A preliminary hearing is not a trial, and his refusal to testify did not affect the outcome of the hearing in any event. Parliament limited the authority of preliminary hearing justices to the specific statutory provisions located in Part XVIII of the Criminal Code. The common law offence of contempt must not be allowed to “bleed” into the procedures of a preliminary hearing, as at its core it is meant to address the authority and dignity of a trial court.

[29] Again, I disagree. While I agree that resorting to section 545 was an option, I chose not to avail myself of it because Mr. Guimaraes was detained on other charges. He would have remained in custody for eight days (or more) despite any ruling I made under that provision. It would have had no practical effect, and I had no reason to believe it would have motivated him to testify. He was quite clear to me he had made his decision. The existence of this alternative mechanism by which to theoretically compel a witness to testify does not preclude the court’s reliance on its contempt power. It is a matter of discretion.

[30] Mr. Sarikaya asked me to consider exercising my residual discretion to purge the contempt citation or stay any finding I make. His client ultimately answered the questions the Crown intended to ask, and his belief about his personal safety concerns was truthful. While I accept Mr. Guimaraes was credible about his fear, I do not find this is a case to decline to make a contempt finding. Witnesses must know they are legally obligated to testify when compelled to attend court. To sanction defiance of that most fundamental pillar of our justice system is unacceptable.

[31] Furthermore, there is an important qualitative difference between Mr. Guimaraes answering the Crown’s questions during this hearing as opposed to the preliminary hearing for Mr. Gallie. During this hearing, he was not subject to contemporaneous cross-examination by Mr. Gallie’s counsel. That is a very important feature of testing a witness’ evidence, and will be a central factor to consider on any potential future application to admit the transcript of his testimony should he refuse to cooperate again at Mr. Gallie’s upcoming trial: see R. v. Bradshaw, 2017 SCC 35, at para. 40.

[32] I am not satisfied that Mr. Guimaraes’ explanation for not testifying constitutes any known defence to a citation for contempt, nor does it somehow render his conduct morally innocent. When he refused to testify, he knew what he was doing. It was a calculated choice.

[33] Finally, Mr. Sarikaya submitted that his client faced threats of harm if he testified such that I should view his decision as one made under duress. As he put it in his written submissions, “It is trite that for an inmate to give evidence against another inmate is an invitation to be harmed”: see defence written submissions at para. 27. His client testified that he feared retribution in custody due to the general culture that exists in jail but not due to any specific threat he received.

[34] A witness’ deliberate refusal to answer questions is well-established as contempt of court: see R. v. Omar, 2018 ONCA 599, at para. 23. In R. v. Johnston, [1976] O.J. No. 1144 (Ont. C.A.), the Ontario Court of Appeal held that a witness’ refusal to answer questions due to any “code” associated with jailhouse criminal culture is not a defence: see para. 7.

[35] Very recently, in R. v. Jogiyat, 2024 ONSC 3143, Campbell J. sentenced a 22 year old accused for contempt of court. Mr. Jogiyat testified at his murder trial voluntarily. He admitted to being present at the scene of the fatal shooting but denied he was responsible for killing the victim. He refused to answer questions that might tend to identify the other parties involved despite candidly admitting he knew their identities.

[36] Mr. Jogiyat explained that if he answered the questions, he would eventually be killed or seriously harmed for being a “rat.” He also informed Justice Campbell that he was worried about his family's safety: see paras. 2-3. Despite Mr. Jogiyat’s reasons for refusing to testify, Justice Campbell found him in contempt and did not depart from the standard sentencing range: see para. 29.

[37] At common law, duress is an available defence to any offence short of murder. Section 17 of the Criminal Code restricts the availability of the defence for certain other offences, none of which apply here. It must be shown that the accused’s will was overborne by threats of death or serious personal injury such that the accused was not acting voluntarily. The accused must present "some evidence" on the necessary elements of the defence. Only then does the burden move to the Crown to prove beyond a reasonable doubt that the accused is not acting under duress: see R. v. Ruzic, 2001 SCC 24, at para. 100.

[38] The elements of the defence may be summarized as follows from R. v. Ryan, 2013 SCC 3, at paras. 43-53:

(1) The accused must be subject to a “threat of death or serious physical injury” and believe that the threat will be carried out;

(2) “A close temporal connection between the threat and the harm threatened” must exist. The close connection “between the threat and its execution must be such that the accused loses the ability to act voluntarily”;

(3) On an objective standard, no “safe avenue of escape” existed or any “reasonable opportunity to render the threat ineffective,” and

(4) There must be “proportionality between the threat and the criminal act to be executed.”

[39] Even if Mr. Guimaraes genuinely feared that anyone who testifies while they are in jail might be subject to personal violence, his decision to refuse to testify at the preliminary hearing fails to meet the criteria for the defence of duress. No temporal connection existed between that fear and the decision not to testify because there was no specific threat. There was also always a “safe avenue of escape” – he could have raised his concerns either directly to the police himself or through his lawyer. The police might have been able to investigate the source of any threat and take steps to neutralize that concern. In addition, witness protection options exist. This case involves exactly what the Court of Appeal in Johnston ruled was not a defence to a contempt citation: see para. 7.

[40] The decision of a witness to refuse to testify cuts to the very heart of the justice system. The damage inflicted on the administration of justice should this defence be permitted to take hold in these circumstances would be irreparable. No “proportionality” exists between the harm threatened and the harm caused for the defence to be successful. Our justice system cannot function if in-custody witnesses refuse to testify with impunity based solely on their personal beliefs of vague and intangible threats to their safety.

Conclusion

[41] Mr. Guimaraes’ reasons for failing to testify at Mr. Gallie’s preliminary hearing and his subsequent decision to answer the Crown’s questions at this contempt hearing may be considered at the sentencing phase. But they do not change the nature of his original conduct nor provide a “reasonable excuse” for refusing to testify.[^3] I find him in contempt.

Released: July 23, 2024

Signed: Justice Brock Jones

[^1]: My emphasis added. The Canadian Judicial Council cautions against the use of contempt proceedings unless “the conduct is such that the ability of the court to administer justice properly is significantly impaired”: see Guidelines on the Use of Contempt Powers, CJC, May 2001, at page. 4 (available online: https://cjc-ccm.ca/cmslib/general/Contempt_Powers_2001_with_Header.pdf)

[^2]: Justice Doorly of the Ontario Court of Justice also held that a preliminary inquiry judge has jurisdiction to find a witness in contempt for refusing to testify in R. v. J.C., unreported, June 28, 2021.

[^3]: One example of a lawful reason not to testify was discussed in R. v. Larsen (1974), 1974 1463 (ON CA), 19 C.C.C. (2d) 574 (Ont. C.A.). The accused was a student who refused to attend court because he had a scheduled school trip. That trip was planned well before he was served with a subpoena. He explained his predicament to the constable serving him and believed he was excused from attending. As the authors of The Law of Contempt in Canada explain, the key lesson from this case is that a “justifiable reason” must be one demonstrating that the “accused lacked the necessary mens rea to frustrate the course of justice”: see Chapter 6, section 6.8, at page 189.