ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10935 (London)
DATE: 20121122

B E T W E E N:

HER MAJESTY THE QUEEN

Marten Dykstra, for the Crown

• and -

KEDAR ABDUL GUERRA

Richard Braiden, for Kedar Abdul Guerra

HEARD: October 22, 23, 24 and 25, 2012

Grace J. (ORALLY)

Reasons for Decision

A. Introduction

[1] On September 18, 2010, Mr. Guerra and his on again, off again female companion Natasha Rene Nickles were involved in a domestic dispute.

[2] After receiving a text message, Ms. Nickles’ concerned sister called the London Police Service. Police officers were dispatched to two London addresses: 155 Connaught Avenue, Unit 310 (the “apartment”) and White Oaks Mall.

[3] Police arrived at both locations and determined that Mr. Guerra and Ms. Nickles were not there.

[4] Nonetheless, events unfolded quickly. Within a short time, Ms. Nickles returned to 155 Connaught. Soon after, the police had retrieved cocaine from two sources: Ms. Nickles and a small safe which was delivered up by Kathy Lyttle, the occupant of 155 Connaught Avenue, Unit 312 (exhibit 3).

[5] By then the police had located Mr. Guerra a short distance away at the Oxbury Mall. He was arrested in relation to the domestic incident. As a result of the cocaine discovery, Mr. Guerra stands charged with possession of that substance for the purpose of trafficking contrary to s. 5 (3) (a) of the Controlled Drugs and Substances Act (the “ CDSA ”). [1]

[6] The nature and quantities of the substance are not in dispute. [2] Nor does the defence dispute the Crown’s allegation that the quantity of cocaine supports the conclusion its holding was for the purpose of trafficking. [3]

[7] The issue is whether the Crown has proven beyond a reasonable doubt that the cocaine was in the possession of Mr. Guerra. The Crown acknowledges he did not have the drug on his person at the time of the alleged offence. However, the Crown relies on other aspects of the definition of possession found in s. 4 (3) of the Criminal Code (the “ CC ”) [4] which the CDSA incorporates by reference. [5]

[8] Section 4 (3) of the CC reads in part:

For the purposes of this Act,

(a) A person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person…

B. The Evidence of Ms. Nickles – the Initial Version

[9] Mr. Dykstra acknowledged the Crown’s case was heavily reliant on the admittedly problematic evidence of Ms. Nickles.

[10] Given her prominence at trial, my analysis starts with her testimony.

[11] Ms. Nickles was interviewed by the police shortly after Mr. Guerra’s arrest with respect to that day’s events.

[12] The questions asked and answers given related to the domestic dispute and the cocaine alleged to have been in Mr. Guerra’s possession. According to Ms. Nickles, an argument started because of Mr. Guerra’s continuing relationship with another woman (Ms. Benoit).

[13] Ms. Nickles alleged that Mr. Guerra’s cell phone broke when he threw it against an apartment wall. An attempt to retrieve the contact list stored on the device necessitated a trip to White Oaks Mall. When that failed, Ms. Nickles alleged that they returned to their car (an Oldsmobile Aurora) where Mr. Guerra slapped her. That, in turn, caused Ms. Nickles to send a text to her sister who then called police.

[14] According to Ms. Nickles’ statement, she returned to 155 Connaught Avenue after dropping Mr. Guerra around the corner at the Oxbury Mall. She alleged that Mr. Guerra had given her a small quantity of cocaine before exiting the vehicle. When Ms. Nickles arrived at Connaught, she found police officers waiting.

[15] Ms. Nickles said she approached the officers, delivered the narcotic to one of them and told an officer she had overheard Mr. Guerra speaking to his cousin Keron Haynes while returning from White Oaks Mall. According to Ms. Nickles, Mr. Guerra had told Mr. Haynes to move a safe from his bedroom to Unit 312 next door.

[16] She alleged the safe contained approximately seven ounces of cocaine and $10,000 in cash. Ms. Nickles said she gave the police a key ring containing keys to the Oldsmobile Aurora she was driving and to the safe. She alleged that all of the items found in the safe belonged to Mr. Guerra and that he was the only one who had access to it.

C. The Evidence of Ms. Nickles at the Preliminary Inquiry and at Trial

[17] Both at the preliminary inquiry and when first examined at trial, Ms. Nickles recanted her testimony concerning Mr. Guerra’s connection to the substance.

[18] At the preliminary hearing, Ms. Nickles gave a very different version of events on a range of subjects. She said she threw Mr. Guerra’s cell phone. Mr. Guerra had been dropped at a home behind Fanshawe College, not Oxbury Mall. Mr. Guerra had given her nothing. She had not seen Mr. Guerra with drugs. She denied recollecting telling the police about a safe and denied seeing Mr. Guerra with one.

[19] Ms. Nickles’ testimony at trial commenced on the second day. Initially she alleged a police officer demanded that she open her purse and found crack cocaine. With respect to her statement, Ms. Nickles suggested the police were “basically telling me what to say” and that later efforts to correct that version of events were rebuffed.

[20] She said that the statement given to the police was untruthful except with respect to the ownership of the Oldsmobile Aurora and the identity of the occupant of Unit 312. Ms. Nickles maintained she was so angry after the domestic incident that she concocted the rest of her story in order to get Mr. Guerra into trouble. She specifically denied that Mr. Guerra had given her any quantity of cocaine to hold for him. She pointed to the fact that Mr. Guerra had a long and short-term roommate and said she did not know how the package of cocaine made its way into her purse.

D. The Second Version at Trial

[21] After undertaking an inquiry pursuant to s. 9 (2) of the Canada Evidence Act, the Crown indicated an intention to proceed with an application pursuant to R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740. Due to logistical difficulties, I granted Mr. Dykstra’s request for an early adjournment of the second day of trial. The KGB voir dire commenced the next day.

[22] The landscape changed again late that morning. It came to the Crown’s attention that Ms. Nickles wished to change the testimony she had given the previous day.

[23] That is precisely what Ms. Nickles did when she returned to the witness stand early that afternoon.

[24] During the third day of trial, Ms. Nickles adopted most of the statement she made on September 18, 2010. She provided details concerning the couple’s argument, the trip to White Oaks Mall, an assault and a resulting text to her sister.

[25] She described two telephone calls during the return trip: the first involving Mr. Guerra and a person she assumed was Mr. Haynes concerning the movement of a safe and the second involving Mr. Guerra and his other female friend (Ms. Benoit).

[26] Ms. Nickles testified that Mr. Guerra had, in fact, given her a quantity of crack cocaine before exiting the vehicle at the Food Basics store at Oxbury Mall.

[27] Ms. Nickles said she returned to 155 Connaught Avenue and, without a request, delivered the cocaine to an officer in attendance. She confirmed telling the police that she believed a safe belonging to Mr. Guerra had been moved to Unit 312 and saying it contained approximately seven ounces of narcotics and $10,000 in cash.

[28] Ms. Nickles identified exhibit 3 as the safe ordinarily kept in Mr. Guerra’s apartment and testified that she watched the police open it using a key from a ring that included keys to the Oldsmobile Aurora. She said she believed Mr. Guerra owned the items found within the safe and that the motor vehicle was his although registered in Ms. Benoit’s name.

[29] Before concluding, Mr. Dykstra asked Ms. Nickles to explain her changing evidence. She testified that while she had maintained a relationship with Mr. Guerra, she was fearful. Ms. Nickles alleged that she had been encouraged to “take the rap for everything”. She said that threats had been directed at her, at her seventeen month old daughter and Ms. Nickles’ father if the version of events given on September 18, 2010 was repeated.

[30] In cross-examination, Mr. Braiden made full use of some fertile ground. An inconsistency within otherwise consistent versions of events was identified and explored: did the slap that precipitated the text to Ms. Nickles’ sister occur in the car as she told the police or in White Oaks Mall as she said at trial? Ms. Nickles testified that her trial testimony was accurate and her statement to the police inaccurate on that point.

[31] Mr. Braiden explored other areas. For example, if fearful of Mr. Guerra, why was Ms. Nickles found inside the apartment in October and December, 2011? Why was he allowed to stay with her in Sarnia during the trial? With respect to an ongoing relationship Ms. Nickles testified “I wanted to try it out. Like, we have a kid together.”

[32] Why, one asks, did Ms. Nickles change her testimony again? One would like to believe that the moral and legal importance of telling the truth played a role: that the significance of an oath resonated. However, Ms. Benoit’s name appeared again. According to Ms. Nickles simmering tension boiled over on the second day of trial and a confrontation ensued.

[33] That carried over to the third day when Ms. Nickles testified “Look today, he brought her too.” In fact, Ms. Nickles was so uncomfortable in her presence that I asked Ms. Benoit to withdraw from the courtroom while Ms. Nickles testified.

[34] The reality is that the first and final versions of events were told in the aftermath of arguments directly or indirectly involving Ms. Benoit.

[35] Sandwiched between their telling was a longer period of apparent calm when Ms. Nickles claimed her accusations to be false.

E. The Surrendered Cocaine

[36] That takes me to the quantity of crack cocaine Ms. Nickles voluntarily handed over to the police.

[37] As noted, according to Ms. Nickles, Mr. Guerra gave her the drug to safeguard. According to her other testimony that occurred:

a. Despite the fact Mr. Guerra was aware the police had been at the apartment;

b. Despite the fact Mr. Guerra was so concerned about the police that he instructed his cousin (Keron Haynes) to move the safe to Unit 312;

c. Despite the fact Mr. Guerra and Ms. Nickles had been involved in a heated, prolonged and at times violent confrontation;

d. Despite the fact Mr. Guerra exited the vehicle at a location the police were not and Ms. Nickles was travelling to a location where the police had been and, at a minimum, were thought likely to return.

[38] While Ms. Nickles explanation is, notwithstanding those observations, possible, it does not reach any higher level. In fact, it seems unlikely.

[39] I am not satisfied beyond a reasonable doubt that the cocaine in Ms. Nickles possession belonged to Mr. Guerra, that Ms. Nickles was holding it on his behalf or for his use or benefit.

F. The Safe and its Contents

[40] I turn to the safe and its contents.

[41] As noted, Ms. Nickles provided information to the police that led to the recovery of the safe. She supplied the key which permitted access. That resulted in the discovery of five packages containing 145.4 grams (approximately 5.13 ounces) of cocaine and other items including jewelry, keys, Canadian, U.S. and Trinidadian cash and a canvas folder containing Mr. Guerra’s social insurance card and statement of live birth.

[42] As also noted, according to Ms. Nickles the safe was ordinarily in Mr. Guerra’s bedroom, he owned the contents (including the jewelry) and was the only person she had seen access it.

[43] Some of Ms. Nickles evidence was supported.

[44] Sergeant Stephen Cochrane testified earlier in the trial. He was one of the first officers to arrive in response to the initial call to the police. He described walking through the apartment looking for Mr. Guerra and Ms. Nickles. He said he looked in the closet of a bedroom seemingly occupied by a man and a woman. Sergeant Cochrane saw a beige shoe box sized safe with key and keypad entry on the top shelf.

[45] Sergeant Cochrane also testified attending outside Unit 312 an hour or so later. In time a safe was recovered from that unit by Constable Muxlow. Sergeant Cochrane recognized it as being the one he had seen in the apartment.

[46] The tenant in Unit 312, Kathy Lyttle, also gave evidence. She said that a man she knew as Sean came to her apartment at approximately 1:30 p.m. on September 18, 2010. She said Sean was an occupant of Unit 310. After some discussion, another man she had seen in Sean’s company but did not know brought a safe to her apartment and indicated that it would be picked up later. Shortly thereafter the police attended. In time the conversation moved from weapons to a “box”. After receiving permission from Sean, she gave the item to Constable Muxlow. That item was the safe she had recently received.

[47] As a result of the testimony I have summarized and the physical items marked as exhibits, I am satisfied of the following facts:

a. That Mr. Guerra was a – and perhaps the – tenant at Unit 310, 155 Connaught Avenue;

b. That on the day in question Mr. Guerra shared the apartment with Shorlan Campbell and Keron Haynes;

c. That Mr. Campbell was the person Ms. Lyttle knew as “Sean”;

d. That a safe was removed from the top shelf of the closet in the bedroom Mr. Guerra shared with Ms. Nickles and taken to Unit 312;

e. That a key to the safe was located on the key ring that included keys to a white Oldsmobile Aurora;

f. That car was, for all practical purposes, Mr. Guerra’s;

g. That Mr. Guerra periodically accessed the safe using a key;

h. Some of the contents of the safe belonged to Mr. Guerra. The obvious items are the social insurance card and the certificate of live birth.

[48] What about the cocaine?

[49] As noted, all of the evidence directly linking Mr. Guerra to the substance came from Ms. Nickles’ initial statement to the police and her testimony on the third day of trial. Of course, Ms. Nickels provided evidence exonerating Mr. Guerra at the preliminary inquiry and on the second day of trial.

[50] It is trite to say that a trier of fact may believe all, none or some of a witness’ evidence. [6]

[51] The Crown maintains that Ms. Nickles told the truth to the police and ultimately at trial. Mr. Braiden urges me to conclude that no weight can be placed on anything that witness says.

[52] I am left in an unenviable position. For two reasons I know that Ms. Nickles lies: versions one and four are complete contradictions of versions two and three. Secondly, she has admitted lying. However, how do I conclude whether Ms. Nickles tells the truth when she is angry with Mr. Guerra (which spawned the first and last accounts on which the Crown relies) or when her relationship with Mr. Guerra stands on more solid footing (when the second and third stories were told)?

[53] Of course, the possibility also exists that each version is partly truthful and untruthful. After allowing for inaccuracy even in a truthful version, the permutations and combinations grow. [7]

[54] The reality is this: I am left in a position where Ms. Nickles twisted and turned so many times I do not feel able to accept any of her assertions – in any direction – absent independent evidence or inferences flowing reasonably and logically from the facts it establishes.

[55] Aside from Ms. Nickles’ testimony, the evidence against Mr. Guerra is circumstantial. In order to find guilt in such a case, I must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that Mr. Guerra is guilty of the offence charged. [8]

[56] After considering all of the evidence I am not satisfied beyond a reasonable doubt that the cocaine found in the safe belonged to Mr. Guerra. I reach that conclusion for these reasons:

1. Two other individuals (Shorlan Campbell and Keron Haynes) shared the apartment and were in it after Mr. Guerra, Ms. Nickles and later the police left;

2. Mr. Campbell and Mr. Haynes were active participants in arranging for the safe to be moved to Ms. Lyttle’s unit. Mr. Haynes delivered it there;

3. Ms. Nickles acknowledged that she did not know how many keys to the safe existed. Indeed, the small key forming part of exhibit 7 may have been one;

4. In any event, at the front of the safe is a numbered keypad. None of the witnesses knew whether the keypad could be or had been used to open the safe;

5. It is, therefore, not clear whether the safe had been opened by Mr. Campbell and/or Mr. Haynes. That possibility is not remote or fanciful but real. It is entirely possible that the cocaine belonged to one of them and was placed in the safe after Mr. Guerra’s departure and prior to its transport;

6. Furthermore, I cannot completely discount the possibility the cocaine belonged to Ms. Nickles. I recognize she denied using cocaine – ever. However, she has not exactly earned the court’s trust. The key used by the police to open the safe was in Ms. Nickles’ possession. If Ms. Nickles had possession of a key to the safe in times of turmoil, it is entirely possible she also had possession in more harmonious times;

7. That causes me to return to the items of jewelry found within the safe. Ms. Nickles vehemently denied that any of the pieces were hers. She alleged she could not afford them and that the items were of a type Mr. Guerra wore. I am not in a position to assess those allegations. I simply note that during cross-examination Constable Amy Muxlow fairly and properly agreed with Mr. Braiden that the jewelry – a heart shaped pendent with flowers was specifically mentioned – appeared to appeal to women rather than men;

8. While I have no doubt there was a conversation via cell phone between an occupant of the Aurora and an occupant of the apartment during the return trip from White Oaks Mall concerning the safe, I am not in a position to conclude who participated or what was said.

[57] It follows that while I am highly suspicious, I am not satisfied beyond a reasonable doubt that Mr. Guerra had knowledge that cocaine was in the safe or that he had control of it. [9]

[58] Accordingly, I find the accused not guilty of the charge set forth in the indictment and acquit him.

[59] Before leaving this case I wish to add a few words about the commencement of the second day of trial on October 23 rd . Mr. Guerra had been significantly late on day one and was again. The Crown requested a bench warrant. I indicated I would not deal with that request until 11 a.m.

[60] Shortly before then Mr. Guerra arrived. Mr. Braiden relayed what he had been told – that Mr. Guerra had caught an express bus from Toronto that morning which arrived late. Mr. Guerra then took over. He told me the bus had left Toronto at 9 a.m. and been delayed. At the time I hoped Mr. Guerra was simply mistaken about the departure time since it was not humanly possible for Mr. Guerra to be addressing the court at 1046 a.m. if the bus carrying him did not leave Toronto until 9.

[61] The matter of Mr. Guerra’s tardiness should have ended there. Trial commenced on schedule from that day on. However, while testifying during the third day of trial Ms. Nickles’ testimony included mention of Mr. Guerra’s whereabouts the previous morning. She said Mr. Guerra and his mother stayed in Sarnia where Ms. Nickles resides, that they departed by car at 9 a.m. and were late arriving in London. While I have been unable to accept much of Ms. Nickles’ evidence, the distance between Sarnia and London, the 9 a.m. departure and Mr. Guerra’s arrival time in this court on October 23 rd make it clear Mr. Guerra misled me.

[62] While the temptation to sanction Mr. Guerra’s conduct is strong, I will limit myself today to the comments I have just made.

[63] My thanks to all others for their assistance in this case.

Justice A. W. Grace

Delivered Orally: November 22, 2012

COURT FILE NO.: 10935 (London)
DATE: 20121122

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – KEDAR ABDUL GUERRA REASONS FOR JUDGMENT Grace J.

Delivered Orally: November 22, 2012

[^1]: S.C. 1996, c. 19 as amended. It is alleged that Mr. Guerra possessed cocaine for the purpose of trafficking contrary to s. 5 (2) of the CDSA.
[^2]: The Certificate of Analysis of the substance located in the safe was made exhibit 1 and the Certificate of Analysis of the substance in the possession of Ms. Nickles exhibit 8.
[^3]: The report of D-C Michael Pottruff was introduced into evidence on consent as exhibit 2.
[^4]: R.S.C. 1985, c. C-46.
[^5]: Supra, note 1, s. 2 (1).
[^6]: See R. v. De Rojas, 2012 ONSC 3227 (S.C.J.) at para. 78 and the cases cited there.
[^7]: R. v. G. (M.) (1995), 1994 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.).
[^8]: R. v. De Rojas, supra note 6 at para. 86; R. v. Khestlova, 2012 ONSC 6030 (S.C.J.).
[^9]: R. v. Savoy, 1996 2001 (Ont. C.A.). The facts of this case are in contrast with those in R. v. Charlton, 1992 367 (B.C.C.A.) and R. v. Emes (2001), 2001 3973 (ON CA), 157 C.C.C. (3d) 124 (Ont. C.A.).