Ontario Court of Justice

Date: 2024 10 2 Toronto

BETWEEN:

HIS MAJESTY THE KING

— AND —

JOAO GUIMARAES

Sentencing Judgment Re: Contempt of Court

Before Justice Brock Jones

Oral Decision Provided on September 25, 2024 Written Reasons Provided on October 2, 2024

Counsel: P. Zambonini....................................................................................... counsel for the Crown D. Sarikaya................................................................................... counsel for Mr. Guimaraes

Jones J.:

Introduction and Factual Overview

[1] A detailed review of the facts leading to the contempt citation is contained in my judgment finding Mr. Guimaraes in contempt of court. By way of summary, Mr. Guimaraes was called as a witness for the Crown at a preliminary inquiry on May 6, 2024. The Crown and defence agreed he had material evidence to provide. In the morning that day, Mr. Guimaraes refused to testify. He was represented by counsel, Mr. Sarikaya, who was present in the courtroom. I asked him to reconsider his position and deferred his testimony until the afternoon.

[2] When he was recalled as a witness, I directed him to be affirmed or sworn and informed him that he must answer questions. Again, he refused to testify. I cited Mr. Guimaraes in contempt. A contempt hearing was conducted on July 9, 2024, and on July 23, 2024, I issued my ruling rejecting his proposed defences to the citation and formally found him in contempt, R. v. Guimaraes, 2024 ONCJ 359. Somewhat unusually in these proceedings, at the contempt hearing, Mr. Guimaraes testified to explain his conduct at the preliminary hearing. During cross-examination, he answered all of Mr. Zambonini’s questions, including everything he otherwise intended to ask Mr. Guimaraes at the preliminary hearing.

[3] Mr. Guimaraes was in custody at the time of the preliminary hearing due to the firearms charges he was facing. He had been denied bail. On September 25, 2024, he was acquitted of all charges by Merenda J. of the Ontario Court of Justice.

[4] On September 25, 2024, I provided brief oral reasons for an appropriate sentence. These written reasons are provided to clarify my decision.

Background of Mr. Guimaraes

[5] Mr. Guimaraes is 23 years old and a permanent resident. He has no prior criminal record.

[6] In my decision finding him in contempt of court, I reviewed in detail the evidence about his background that was provided during the hearing. For this decision, by way of a summary, I can confidently state that he is an intelligent, promising young man with great rehabilitative potential. He has the love and support of his parents who attended the contempt proceedings.

[7] Mr. Guimaraes was always polite and respectful. He testified that he feared for his safety if he testified. While I did not accept this provided a basis to purge the contempt citation, I accept that his fear was genuine. While the existing case law makes clear this should not be recognized as a mitigating factor per se, it does place his refusal to testify in context. He was not attempting to thwart the course of the preliminary hearing or ensure that Mr. Gallie would not be committed to stand trial. That would be a significant aggravating factor. Mr. Zambonini fairly conceded Mr. Guimaraes’ evidence would have had no bearing on the case for committal at the conclusion of the preliminary hearing.

Sentencing For Contempt

[8] The purpose of criminal contempt is to punish conduct calculated to bring the administration of justice by the courts into disrepute: United Nurses of Alberta v. Attorney-General for Alberta (1992), 71 C.C.C. (3d) 225 (S.C.C.), per Sopinka J., dissenting, at p. 230. Sentencing in criminal contempt cases operates to “repair the depreciation of the authority of the court”: International Forest Products v. Kern, 2001 BCCA 48, 149 B.C.A.C. 18, at para. 20.

[9] Accordingly, the sentencing principles of greatest application are denunciation and deterrence, given the offence “is a very serious crime, which strikes at the heart of the administration of justice”: Omar at para. 22; R. v. Aragon, 2018 ONCA 124, at para. 1. General deterrence must be given great weight in particular and courts must emphasize there will be a “heavy price to be paid for the calculated refusal” to testify: see R. v. Jacob, 2008 MBCA 7, at paras. 26 and 32.

[10] Yet the fundamental principles of proportionality must be respected. The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender: section 718.1 of the Criminal Code. Both the principles of rehabilitation and restraint must be considered as well for a first-time offender such as Mr. Guimaraes.

[11] When a contempt proceeding occurs in a summary manner, the maximum penalty for refusing to testify is five years. The standard range of sentencing for a witness who refuses to testify in a trial is between fifteen months and three years: see R. v. McLellan, 2016 ONSC 3397, at paras. 12-15. [1]

[12] In R. v. Omar, the appellant testified at his murder trial. He had previously given a statement to an undercover officer wherein he admitted to committing the murder. At the trial, he testified this statement was false and that the real murderer told him what happened. He refused to divulge the name of the true murderer when questioned. He testified that he was afraid he and his family would be in danger if it became known that he cooperated with the justice system.

[13] The trial judge imposed a three-year sentence for contempt. The Court of Appeal upheld the sentence, relying in part on the Supreme Court of Canada’s decision in R. v. Arradi, 2003 SCC 23. In that decision Justice Arbour wrote at paras. 34-35:

The refusal by a witness — even if he or she is the accused — to answer the questions put to him or her is an affront to the authority of the court, and it must be remedied in the court in such a way that the jury itself understands that compliance with the relevant law is not optional and understands the consequences for anyone who violates his or her oath.

When the appellant decided to testify, he swore to tell the whole truth. Despite the judge’s numerous warnings, he refused to answer the questions put to him. The judge had to preserve the authority of the court, and citing the appellant for contempt was an appropriate method of achieving that end.

[14] Mr. Guimaraes is a young man. Yet so too was Mr. Omar, who was only 24 years old. When sentencing Mr. Omar, the trial judge wrote the following at para. 49 of her sentencing decision (reported at 2017 ONSC 1833):

A person who refuses to testify, or refuses to answer particular questions put to him while testifying, is making a calculated decision to do so. Typically, and in this case, that person will have access to legal advice before making that decision. Such advice will include information about the likely punishment that will be meted out if the individual persists in defying the court’s order. Thus, for this particular offence, the sentences imposed in prior cases have a very direct impact on influencing others not to engage in similar behaviour. If the courts are seen to be lenient in their sentencing for contempt of court, we can expect witnesses to do a cost/benefit analysis in determining whether or not to comply with the judge’s order to answer the questions asked and to decide against compliance. Accordingly, I remain of the view that deterrence, both general and specific, is a very important factor in sentencing for contempt of court.

[15] Similarly, in R. v. Yegin, 2010 ONCA 238, the Ontario Court of Appeal upheld a three year sentence for a man who refused to testify at a murder trial. The Court held at para. 2 that:

The justice system depends on witnesses who testify as required. The justice system’s response to those who prefer to remain aligned with their criminal cohorts rather than do their duty as citizens must be firm and direct – significant jail terms above and beyond whatever other period of incarceration the individual is, or might be, facing for his own participation in the relevant events must be imposed.

[16] The contempt in this case occurred during a preliminary hearing, and the course of the proceeding was not affected by Mr. Guimaraes’ refusal to testify. Mr. Gallie was still committed to stand trial on the basis of the rest of the evidence presented by the Crown. Furthermore, Mr. Guimaraes was subpoenaed as a Crown witness and refused to answer questions, which the trial judge in Omar held was less serious than an accused person choosing to testify at his trial and then refusing to answer questions: see para. 36.

[17] I agree with Mr. Sarikaya that the penalty for contempt should be carefully tailored to the circumstances of the case before the court. Refusing to testify at a preliminary hearing is qualitatively very different than refusing to testify at a trial. The Crown has other means by which to introduce the evidence of a witness who refuses to testify at a preliminary hearing, such as reliance upon section 540(7) of the Criminal Code to introduce the witness’ prior statement into evidence. That is a far lower burden to clear than a formal hearsay application at a trial.

[18] Mr. Guimaraes was not a witness to the shooting that formed the basis of the charges for the preliminary hearing. At most, his testimony would have helped the Crown establish that the firearm located in another person’s apartment on a different date was not his, thus bolstering the strength of the argument that it was in the possession of Mr. Gallie. Mr. Gallie’s DNA was located on the firearm, and he was also present at the apartment at the time the search warrant was executed.

[19] I do not mean to overstate the significance of these differences. Refusing to testify is always an extremely serious form of contempt. But the act of contempt must be placed in its appropriate context. This context includes the nature of the proceeding and the importance of the witness’s testimony to the ultimate issue to be decided.

[20] In R. v. J.C. (unreported) [2], a decision of Doorly J. of the Ontario Court of Justice, the contemnor was initially charged with murder when he was 17, as a young person. An adult, Raheem Moseley, was also charged with that murder. At the preliminary hearing for Mr. Moseley, J.C. was called as a Crown witness. He was an adult at the time. He refused to answer questions. He had a lawyer and was given an opportunity to speak to him privately before being recalled as a witness. He was then cautioned by the court about the consequences of refusing to testify.

[21] J.C. was present at the time of the murder and had vital evidence to provide. Arguably, he could have identified the shooter as himself or Mr. Moseley. Justice Doorly sentenced him to 15 months of custody for contempt of court. She noted he was a young man with great rehabilitative potential who had excelled while in a youth custody facility. Notwithstanding the importance of deterrence and denunciation in cases of contempt of court, the “promising turns” J.C.’s life was starting to take had to be considered as well. [3]

[22] In another analogous case, a more significant penalty was imposed. In Jacob, the Manitoba Court of Appeal reduced the trial judge’s sentence of three years to two years for a 19-year-old witness who refused to testify. The contemnor had parental responsibilities and was regularly employed prior to being incarcerated. At the conclusion of the trial, despite Jacob’s refusal to testify, there was a conviction against the accused. Jacob was not an eye-witness to the offence, but still had important evidence to provide: see paras. 31-33.

Conclusion

[23] There is no escaping the fundamental truth that lies at the heart of this contempt proceeding. I can do no better than rely upon Mr. Zambonini’s written submissions where he stated the matter eloquently as follows:

The requirement that all witnesses who are subpoenaed to testify do so is fundamental to the operation of our justice system. Without witnesses, there can be no justice. [4]

[24] Nevertheless, Mr. Guimaraes’ evidence was of limited value in the preliminary hearing. He had far less important evidence to provide than in the other cases I have cited, and his evidence had no bearing on the test for committal. On July 9, 2024, at the contempt hearing, he answered Mr. Zambonini’s questions that he would have otherwise been asked when called to testify at Mr. Gallie’s preliminary hearing. He was detained on a warrant of remand for the contempt citation from May 6, 2024, to September 25, 2024. [5] In light of Merenda J.’s acquittal on the firearms charges he was facing, all of this pre-sentence custody can be applied to this matter. I find this more than sufficient to hold him accountable for this act of contempt in these unique circumstances.

[25] Furthermore, he served this time at the TSDC in difficult conditions that are widely recognized by sentencing courts to constitute a significant mitigator factor: see R. v. Shaikh and Tanoli, 2024 ONSC 774, at paras. 73-81, where Justice Molloy reviews the recent jurisprudence addressing remand credit at the TSDC. This was Mr. Guimaraes’ first time in jail and no doubt the toll of this experience has made a lasting impression upon him.

[26] This was an exceptional case, with some very mitigating circumstances. I, therefore, note 40 days pre-sentence custody, credited for 60 days (see Criminal Code section 719.3(1)), and impose a suspended sentence with six months of probation.

Released: October 2, 2024 Signed: Justice Brock Jones

[1] Justice Aitkin held this range was commonly applied when the witness refused to testify in a murder trial. While the contempt in this case occurred during a preliminary hearing for offense other than murder, in my view that does not meaningfully diminish the moral culpability of Mr. Guimaraes. The allegations involved a man being shot in the back. It is an extremely serious matter.

[2] I provided counsel with a copy of Doorly J.’s decision. I am using the contemnor’s initials because he was charged as a young person with murder and ultimately acquitted. While he was found guilty of contempt as an adult, to use his full name would identify him as part of the murder case as well, and the YCJA section 110 publication ban in that case remains in effect permanently.

[3] Doorly J. also noted J.C. spent 18 months in custody on the murder charge as a young person and was ultimately acquitted. This was a factor to consider, even if the time spent in pre-trial detention could not be directly apportioned to the sentencing for the contempt conviction: see para. 83.

[4] Crown’s written submissions, para. 7.

[5] In Omar, the Court of Appeal held that pre-trial custody for unrelated charges cannot be applied to a sentence for contempt of court.