R. v. Hong, 2015 ONSC 2036

CITATION: R. v. Hong, 2015 ONSC 2036

COURT FILE NO.: 13325/13

DATE: 20150330

CORRIGENDA: 20150420

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TIN WAI HONG, MASON GILLARD-GATZA, NATHANIEL CAIN and RAPHAEL GUERRA

Defendants

Ronald Davidson and Lucas O’Neil, for the Crown

Michael Strathman for Tin Wai Hong

Stephen T. Lyon for Mason Gillard-Gatza

Anthony G. Bryant and Karen E. Symes for Nathanial Cain

David G. Bayliss for Raphael Guerra

HEARD: March 16 to 20, 2015

RULING ON APPLICATIONS TO EDIT the sTATEMENTS

of mason gillard-gatza and nathaniel cain

The text of the original endorsement has been corrected with the text of the corrigenda.

(released today’s date)

RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

BOSWELL j.

I. OVERVIEW

[1] Minden is usually a pretty quiet place. Not so on October 19, 2011. On that night, three males, masked and armed with a baseball bat, entered the home of local resident Justin McKelvey. Mr. McKelvey was reputedly involved in the local marijuana trade and word on the street was that he was sitting on a significant stash of money and pot. The Crown’s theory is that the invaders intended to rob Mr. McKelvey of his drugs and money and to murder him and any other unlucky witness(es). Mr. McKelvey was not alone in his home when the invaders entered. His friend, a young man named Ryan Kennedy, was with him. They had been watching hockey and playing videogames. When the ensuing attack ended, Mr. Kennedy was dead and Mr. McKelvey badly injured.

[2] The event was interrupted when a vehicle unexpectedly pulled into Mr. McKelvey’s driveway. The invaders fled, but separated. Mr. Gillard-Gatza and Mr. Hong were arrested in the early morning hours of October 20, 2011, still in the Minden area. Mr. Cain and Mr. Guerra were arrested some time later in Toronto. All were charged with first degree murder and attempted murder.

[3] Mr. Gillard-Gatza gave a videotaped statement to the police on October 20, 2011. Mr. Cain similarly gave a videotaped statement on November 1, 2011. Each of them gave detailed accounts of the home invasion and the roles that they – and their co-accused – played in the course of the invasion. The Crown intends to rely on the statements as part of its case in chief against Mr. Gillard-Gatza and Mr. Cain respectively. The statements have already been ruled voluntary and admissible.

[4] The blows that killed Mr. Kennedy appear to have been inflicted by a baseball bat. Three of the four accused went inside the McKelvey residence. It is common ground that Mr. Guerra, the driver, never entered the home. A central factual issue in this trial will be who, among the other three accused, wielded the bat and delivered the fatal blows. Mr. Gillard-Gatza said, in his statement to the police, that it was Mr. Cain. Mr. Cain said it was Mr. Gillard-Gatza. He also described Mr. Hong striking Mr. Kennedy in the jaw with a pellet gun.

[5] In this application, Mr. Gillard-Gatza’s co-accused all seek to have portions of his statement redacted on the basis of relevance (or the lack thereof) and prejudice. Similarly, Mr. Cain’s co-accused seek to have his statement redacted on the same bases. The Crown opposes most of the requested edits, asserting that the probative value of most of the impugned passages outweighs any prejudicial impact they may have. They also argue that the requested edits will remove important context and interfere with the flow of the narratives. A number of requested edits are consented to and I will address those in the course of this ruling. For now, I intend to review the general legal framework governing this application, then I will review the requested edits on a one-by-one basis. There are a great many proposed redactions. I do not intend to give extensive reasons with respect to each proposed edit, but in each case I will indicate the passage in issue, my disposition, and, in succinct form, the basis for my ruling.

II. THE LEGAL FRAMEWORK

Joint Trials

[6] The Crown alleges that the four accused participated together in a common plan, or joint venture, to commit the charged offences. The general practice, when accused persons are alleged to have acted in concert to commit an offence, is that they are tried together: R. v. Savoury, 2005 CanLII 25884 (ON CA), [2005] O.J. No. 3112 (C.A.).

[7] There are a number of policy reasons that support joint trials. Multiple trials are expensive and not an efficient use of scarce judicial resources. They require witnesses to testify multiple times, often with respect to very difficult subject-matter. They also create a risk of inconsistent verdicts, especially in the face of antagonistic defences. A trial is, at its heart, a truth-finding exercise. There is a general consensus in the jurisprudence that the full truth about an incident is more likely to emerge if each of the alleged accused are present and accounted for on a single occasion: see R. v. Crawford and Creighton, [1995] 1 S.C.R. No. 858. The presumption of a joint trial is, accordingly, fortified where there are, as here, antagonistic defences in play.

Fair Trials

[8] In Canada, every accused person – whether tried individually our jointly with others – is constitutionally guaranteed the right to a fair trial. Inherent in that right are certain protections, including the right to make full answer and defence and the right to be shielded from unfairly prejudicial evidence: R. v. Suzack, (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.), at para. 111. That said, an accused who is tried jointly with others cannot expect – and is not entitled, as part of the constitutional right of trial fairness – to the exact same trial he or she might have had if tried alone: Suzack, as above, para. 111.

[9] The right to be tried fairly does not entitle an accused person to a perfect trial, nor one of impeccable fairness. The right is to a trial that is fundamentally fair: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, para. 193.

The Threat to Fundamental Fairness

[10] This application directly engages the fair trial rights of all four accused persons. The challenge to those rights comes from the potentially prejudicial impact of the admission into evidence of the statements of Mr. Gillard-Gatza and Mr. Cain.

[11] Out-of-court utterances, tendered in court as proof of their contents, are prima facie inadmissible by operation of the general rule excluding hearsay statements: R. v. Khelawon, 2006 SCC 57, at paras. 34-35. Concerns about reliability and an inability to test the declarant’s assertions through contemporaneous cross-examination underlie the rule against hearsay evidence.

[12] There are many exceptions to the general exclusionary rule. One well-established exception involves the out-of-court statements of accused persons. An accused person’s own utterances are admitted, notwithstanding their hearsay character, as a function of the adversary process: R. v. Evans, [1995] 3 S.C.R. 653. In other words, it does not lie in the mouth of an accused person to complain about the lack of reliability of his or her own statements, nor about the absence of contemporaneous cross-examination on such statements.

[13] All this is to say that Mr. Gillard-Gatza’s statement to the police is admissible in evidence against Mr. Gillard-Gatza, just as Mr. Cain’s statement to the police is admissible against Mr. Cain. But neither statement is admissible evidence against any other accused person. The law is clear that in a joint trial, “a statement made by one of several accused, not in furtherance of any common design and not adopted by any other accused, is admissible only in relation to its maker, even if it mentions something said or done by another accused”: R. v Largie, 2010 ONCA 548, at para. 85; R. v. Suzack, as above, at para. 117.

[14] In this case, the jury can and will be provided with a clear instruction that any out-of-court statement of an accused person is admissible in evidence only against the maker of the statement and may not be taken into account when the jury considers the case against any of the other accused. The concern, as clearly articulated by all defence counsel, is that the statements of Mr. Gillard-Gatza and Mr. Cain contain very significant references to what other accused persons purportedly said or did. The potential for prejudice is obvious.

[15] In some cases, the prejudice created by the introduction of the statement of one accused to the fair trial right of another accused is so profound that only a severance of accused persons will attenuate it. But severance is not the norm, nor is it sought in this case. Instead, as Watt J.A. observed in R. v. Largie, as above, at para. 89, potential prejudice is generally managed and attenuated through clear and appropriately timed jury instructions:

To balance the competing interests of co-accused in a joint trial, the authorities conclude that a carefully crafted jury instruction about the permitted and prohibited use of evidence of limited admissibility is the best way to achieve that balance: Suzack at para. 114. Absent alteration of the paradigm of trial by jury, constitutionally guaranteed in cases such as this, we proceed on the basis that juries accept and follow judicial instructions: Suzack, at para. 128; R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 692-93.

[16] Jury instructions are not an easy or complete answer to every instance of prejudice. Inevitably, and in spite of clear instructions from the bench, there often remain lingering concerns that the jury may make impermissible use of the content of a statement, when considering the Crown’s case against an accused who was not the statement-maker.

[17] One additional method of attenuating prejudice, often resorted to, is the careful editing of an accused’s statement. The editing exercise is largely achieved through the court’s discretion to exclude evidence where its prejudicial impact will exceed its probative value to the live issues in the proceeding. Editing, or redaction, can go a long way to ensuring that the jury will not be exposed to evidence whose probity is overborne by the prejudice it will cause to either the statement-maker or his co-accused.

Guidelines for Editing

[18] Guiding principles have developed in the jurisprudence to aid in the editing exercise: see R. v. Grewell, 2000 BCSC 1451; R. v. Jacobson, [2004] O.J. No. 932; R. v. Chretien, [2009] O.J. No. 811; R. v. Minoose, 2010 ONSC 7175. The applicable principles were summarized neatly by Ferguson J. in R. v Jacobson, as above, at para. 4, as follows:

(a) Editing of a statement may at times be necessary because of the inclusion of irrelevant or unnecessarily prejudicial evidence but such editing must not affect the tenor of a relevant statement;

(b) Edited statements must be free from unnecessary prejudice, but the remaining portions must retain their proper meaning;

(c) The jury should have as much as possible of a statement said to constitute an admission in order to place it into context for the purpose of determining its truth;

(d) Even though substantively irrelevant, contextual evidentiary relevance may allow admission;

(e) The extent of the admissibility of that contextual evidence and probative value must still, however, be weighed and balanced against its prejudicial effect;

[19] Recently, Kane J. reviewed the same principles in R. v. Minoose, as above, at para’s 26-36. He supplemented Ferguson J.’s enumerated list with the following additional principles:

(f) In balancing probative value against prejudicial effect, the court can consider whether the evidence adds much to the proof of the same issue by other expected evidence; and,

(g) The names of other accused will not be deleted if that would mar the flow of language and arouse the suspicion and speculation of the jury.

[20] In a moment I will commence a review of the specific redactions sought by the parties. Prior to doing so, it may be useful to briefly reflect upon the meaning of the terms “probative value” and “prejudice”.

Probity

[21] To have any probative value at all, evidence must first be logically relevant to a live issue in the proceedings. But that is not to say that relevance and probity are the same. Relevance was defined by Watt J.A. in R. v. Candir, 2009 ONCA 915, at para. 47 as follows:

Relevance is not an inherent characteristic of an item of evidence. Relevance exists as a relation between an item of evidence and a proposition of fact that the party adducing the evidence seeks to prove or disprove by the introduction of the evidence. Relevance is relative, not absolute, a function of and dependent on the circumstances of the case in which it is offered, including, but not only, the positions of the parties: R. v. Pilon (2009), 2009 ONCA 248, 243 C.C.C. (3d) 109 (Ont. C.A.), at para. 33.

[22] Evidence that is not relevant cannot have probative value. Relevant evidence may, however, vary in terms of its probative strength. When considering the probative value of evidence, the court must consider the degree of relevance it has to the facts in issue and the strength of the inferences that can be drawn from it: R. v. Handy, 2002 SCC 56, at para. 26.

Prejudice

[23] Prejudice to an accused person is generally described in two categories: moral prejudice and reasoning prejudice: see, for instance, R. v. Handy, as above. Moral prejudice describes the risk that the jury might wrongly convict based on a finding that the accused is a bad person who is deserving of punishment. Reasoning prejudice describes the risk that the jury may become distracted or confused by the evidence, or that they may use evidence for a reason other than its permitted purpose, or that a disproportionate amount of time, effort and resources may be directed at the evidence, relative to its value in the trial.

[24] With these general guidelines in mind, I will proceed to an assessment of the requested edits.

III. THE EDITS:

[25] To put the editing exercise into context, it is important to appreciate the parties’ theories of the case, at least insofar as they are apparent at this early stage of the proceedings.

[26] The charges are first degree murder and attempted murder. The Crown asserts that there was a common plan, knowingly participated in by each of the accused, to attend at Mr. McKelvey’s home in Minden, rob and murder him, and eliminate any witnesses.

[27] The Crown relies on two alternative routes to first degree murder: (1) that this was a planned and deliberate murder (Criminal Code, s. 231(2)); or (2) that Mr. Kennedy was killed during the commission of a forcible confinement (s. 231(5)). The alleged modes of participation will, I expect, become clearer as the evidentiary record unfolds. To be culpable for constructive first degree murder (s. 231(5)), however, the accused must be found to have played an essential, integral and substantial part of the killing.

[28] As alternatives to first degree murder, the offences of second degree murder and manslaughter remain on the table. One available route to second degree murder is the common purpose doctrine found at s. 21(2) of the Criminal Code. Party liability for murder under that provision requires a finding that the accused who was a party to a common unlawful purpose had actual knowledge that a murder would be a probable consequence of carrying out that common unlawful purpose: R. v. Young, 2009 ONCA 549, at para. 6, leave to appeal to the Supreme Court refused (March 11, 2010, Doc. 33427). Party liability for manslaughter under s. 21(2) requires only that a reasonable person would have foreseen a risk of harm to the occupants of Mr. McKelvey’s home as a result of carrying out the common unlawful purpose.

[29] Identity is not in issue. When arraigned, two of the accused – Mr. Hong and Mr. Gillard-Gatza, offered guilty pleas to manslaughter, which the Crown rejected.[^1] Mr. Cain does not dispute that he was one of the three males who entered the McKelvey residence. Mr. Guerra does not dispute that he drove the three intruders to Minden. The theories of the defence are not clearly laid out as yet, but it is apparent that with the possible exception of Mr. Guerra, a common defence theory will be that this was a robbery gone wrong. It is important to recognize that a rejected guilty plea to manslaughter is not conclusive proof of the essential elements of the charge of manslaughter. The plea, as an admission, is one factor the jury may consider, but it remains incumbent upon the Crown to prove each of the essential elements of the offences, and/or any lesser and included offences, to the reasonable doubt standard: R. v. Dobson, [1985] O.J. No. 32.

[30] I set out the basic theories of the case in an effort to frame the live issues – at least insofar as they appear from the present vantage point. Those theories and the positions of the parties are a necessary reference point for assessing relevance, probity and prejudice.

[31] In Appendices “A” and “B”, I have set out the edits counsel have requested to the statements of Mr. Gillard-Gatza and Mr. Cain. In each instance I have provided a reference point, a short synopsis, and my ruling, having regard to the legal framework discussed above.

[32] There remains one editing issue that is a little different from the others and I will address it now.

The Cup Wiping Segment

[33] Mr. Cain’s interview with the police on November 1, 2011 was videotaped, as most formal interviews of suspects are nowadays. A typical practice – and the one followed in this instance – involves one officer conducting the interview, while another officer monitors the interview on a closed circuit television screen in a separate room. Commonly, as the interview nears its end, the interviewing officer will step out of the interview room to liaise with the monitor about the form and substance of the interview. The videotape continues to roll while the interviewer is out of the room.

[34] Mr. Cain seeks to edit out about two minutes of footage near the end of his videotaped interview[^2]. The footage captures activity he engaged in during a brief period of time when the interviewing officer was out of the interview room, presumably speaking to the monitor.

[35] Mr. Cain is observed on video, on at least three distinct occasions, using a tissue to wipe down the rim of a disposable coffee cup he had been drinking from during the course of the interview. The interview room is small. Its only furnishings consist of a table in one corner with two chairs. After the interviewer left the room, Mr. Cain got off his chair and sat on the floor for some time with his back against the wall. At about 2:22:50 into the recording, he got up and moved back to his chair. He is observed eating a chocolate candy, then using a tissue to wipe the rim of his coffee cup. He then drank from the cup again, which apparently motivated him to wipe the cup again. He then placed the tissue inside the cup and, using a second tissue, wiped the rim of the cup a little more thoroughly. He then placed the second tissue inside the cup and, moments later, returned to the floor where he sat until the officer returned to the room.

[36] Mr. Cain argues that the cup wiping segment has no probative value to any live issue in the proceedings, but is highly prejudicial to him. He asks that the scene be redacted in its entirety.

[37] The Crown opposes any editing of the cup wiping conduct, asserting that the conduct is highly probative of Mr. Cain’s general credibility and reliability.

[38] The brief reasons that follow explain why I agree with Mr. Cain’s position and find that the video-recording should be edited by removing the cup wiping segment in its entirety. Absent further submissions from counsel as to the parameters of editing, my view is that the period from 2:22:50 to 2:24:58 should be redacted.

[39] The conduct of Mr. Cain, captured on videotape, falls within a broad category of evidence described generally as evidence of “post-offence conduct”. Such a characterization says little about the specific characteristics of the evidence itself, save to observe that it involves conduct that occurred at some point after the commission of the charged offences.

[40] Post-offence conduct evidence is circumstantial evidence that may, in some circumstances, be relevant to the culpability of an accused person. It is not fundamentally different than other kinds of circumstantial evidence: R. v. White, 2011 SCC 113, at para. 31. Its admissibility is governed by the same basic principles of admissibility that govern any other type of evidence.

[41] To be admissible in a criminal trial, evidence – including post-offence conduct evidence – must be (i) relevant; (ii) material; and (iii) not subject to a specific exclusionary rule: R. v. Candir, as above, at para. 46.

[42] As Watt J.A. observed in R. v. Candir, as above, at para. 48, “[t]he threshold for relevance is not high. To determine whether an item of evidence is relevant, a judge must decide whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence of a material fact more probable than it would be otherwise.”

[43] Materiality is a legal concept inextricably intertwined with relevance. The requirement of materiality focuses the relevance inquiry on matters that are live issues in the proceeding. “What is material is determined by the governing substantive and procedural law and the allegations contained in the indictment”: R. v. Candir, as above, at para. 49.

[44] Relevant and material evidence may yet be excluded as a result of the operation of a particular exclusionary rule. Exclusionary rules come in all shapes and sizes. It is sufficient, for the purposes of this ruling, to focus on the specific exclusionary rule identified by counsel as applicable in this instance. Specifically, as part of its inherent “gatekeeping function”, the court has a discretion to exclude evidence that is otherwise relevant and material, where the probative value of the evidence is outweighed by the prejudicial impact it will have on the interests of one or more accused, or on the trial process itself. This discretion to exclude otherwise logically relevant and material evidence is sometimes characterized as an assessment of the legal relevance of the evidence. Legal relevance involves a cost benefit analysis; a determination of whether the evidence, though logically relevant to a live issue, is “worth the candle”. Evidence may be excluded on this basis if (1) its prejudicial impact will surpass its probative value; (2) it will involve an inordinate amount of time, not commensurate with its value; or (3) it is misleading in that its effect on the tier of fact is out of proportion to its reliability: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at para. 18

[45] To assess the admissibility of the cup wiping evidence, it is necessary to first identify the live issue to which it is directed, then to consider whether the evidence, even if relevant, is worth the price of admission.

[46] It is crucial to this application, in my view, to take notice of what is not in issue. Significantly, identity is not a live issue. Mr. Cain admits that he was one of the three intruders who entered the McKelvey residence on the night of October 19, 2011. He admits that he has at least some level of criminal culpability.

[47] What remains a live issue, as I noted above, is which of the three intruders wielded the bat and struck the fatal blows. More generally, though Mr. Cain has confessed to some level of participation in criminal activity, his level of culpability remains a live issue.

[48] Mr. Cain was asked during his interview whether he held the bat. At first he denied that he had held it, but eventually he said he did touch it, but only just to move it, in a manner he referred to as “organizing” things. As his story evolved, the interviewer challenged him by suggesting that a reasonable observer might conclude that he said he touched the bat only because of a fear that the police were going to find his DNA on it. He denied that was the case. He also said that he and the other intruders were wearing gloves throughout the incident. The Crown concedes that Mr. Cain’s DNA was not found on the bat.

[49] Depending on the circumstances, post-offence conduct may be relevant, and have probative value, with respect to an accused person’s level of culpability: R. v. White, as above, at para. 42. Where, however, an accused has admitted the actus reus of an offence, much of that person’s post-offence conduct will be irrelevant to determining the level of his or her culpability: White, para. 41. Likewise, where conduct is equally consistent with different levels of culpability, it will be of no assistance in determining which of those levels has been established: R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, para. 43; R. v. Rogerson, 2014 ONCA 366, para. 45.

[50] The Crown conceded that Mr. Cain’s post-offence conduct – the wiping of the coffee cup – is not relevant to the issue of whether he held the bat. Mr. Cain has admitted that, at least at some point, he held the bat. His actions in wiping the cup are not probative of whether he struck Mr. Kennedy with the bat.

[51] The Crown further conceded that the conduct in issue is not probative of Mr. Cain’s level of culpability. Nevertheless the Crown went on to submit that the conduct in issue is highly relevant to the credibility and reliability of Mr. Cain’s statement to the police. Specifically, Mr. Cain’s position with the interviewing officer was that he was being 100% truthful in his statement. Part of his statement involved a denial that he swung the bat.

[52] This trial – insofar as it relates to Mr. Cain at least - is really only about Mr. Cain’s level of culpability. If the jury wholly accepts Mr. Cain’s description of events inside the residence, they will have accepted that he did not strike Mr. Kennedy with the bat. Such a finding may be very significant in terms of their ultimate conclusions about Mr. Cain’s level of culpability. On the other hand, if they reject Mr. Cain’s statement as not credible and/or reliable, then this rejection may be one link in a chain of reasoning about his level of culpability. To be clear, however, and in accordance with the principles expressed in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, the Crown must still lead sufficient evidence upon which the jury can conclude that Mr. Cain swung the bat, or on some other basis, that he has an elevated level of culpability (i.e. beyond manslaughter).

[53] Ultimately, as the Crown expressed in argument, the principle live issue to which the evidence relates is the general credibility of Mr. Cain. I accept that the videotaped conduct, the cup wiping, is relevant to Mr. Cain’s general credibility. The next step is to conduct a cost benefit analysis. And this is where I conclude that the evidence must be excluded.

[54] The conduct exhibited by Mr. Cain while the interviewer was out of the room is remarkable. It stands in stark contrast to the position he took with the interviewer – that he was entirely truthful and forthcoming in his statement. It is just the type of conduct that may cause a trier of fact to sit up a little straighter and take notice. And this is the real potential mischief from Mr. Bryant’s point of view: it is just the type of evidence that jurors may assign more weight than is warranted, or that may cause a trier of fact to “jump too quickly from post-offence conduct to an inference of guilt”: R. v. White, 2011 SCC 13, per Rothstein J. at para. 23.

[55] It is, of course, possible to provide the jury with a limiting instruction about the purpose for which the jury may legitimately consider the cup wiping conduct. In other words, that it is limited to an assessment of Mr. Cain’s general credibility. It is also possible to provide the jury with a caution about the danger of jumping too quickly to an inference of guilt. In my view, however, instructions will be an insufficient remedy in this particular instance, given that the prejudicial impact of the evidence so substantially outweighs its probative value.

[56] The probity of the conduct evidence is, as I alluded to above, modest. Mr. Cain admits he was one of the intruders and he admits he touched the bat. At its highest and best, the evidence is relevant to the general credibility of Mr. Cain and whether the jury will believe he was being truthful about his level of involvement in the offences.

[57] On the other side of the scale is the prejudicial impact of the statement. In my view, its prejudice can be expressed in four main categories:

(a) The risk that the jury may use the evidence improperly. This is not evidence that supports an inference about the manner in which Mr. Cain used the bat;

(b) The risk that the jury will assign unwarranted weight to the evidence. It is striking that, shortly after the interviewing officer left the room, and on the heels of a discussion about DNA, Mr. Cain can be observed wiping the lip of his coffee cup. The inevitable inference is that he was attempting to wipe his DNA from the cup. There is a risk that the jury may conclude that trying to destroy evidence is just the sort of thing a guilty person would do. But it must be recalled that Mr. Cain admits he has at least some level of culpability. If identity was a live issue, the cup wiping would certainly be very compelling evidence. But in view of the admissions, the probative value of the evidence is markedly reduced. I fear, however, that the reduction may be lost on the jurors, even with a limiting instruction, given the compelling nature of the conduct. The evidence has a great deal of “show” but little substance. There is a real risk that the jury may leap to an inference that he must be guilty of more than he admitted to;

(c) The risk of speculation. Mr. Cain has admitted being involved in the offences. He has admitted that he assisted in the taping (confining) of Mr. Kennedy. What he has not conceded is that he swung the bat, though he admitted touching it. His admission to touching the bat would explain the presence of his DNA on it, had any been found. His admission means that the presence of his DNA – again, had any been found – would not say anything about whether he swung the bat, or whether he struck anyone with it. All this is to say that it is not at all clear why Mr. Cain was attempting to wipe off his DNA, if that is in fact what he was attempting to do. The jury will be left to speculate about why he might still be trying to wipe away his DNA. An invitation to speculate is, of course, improper: see R. v. Figueroa, 2008 ONCA 106; and,

(d) Moral prejudice. Destroying evidence, or attempting to do so, is disreputable conduct. It carries with it the risk of impermissible propensity reasoning; the risk that the jury will conclude that Mr. Cain is a bad person deserving of punishment.

[58] The probative value of the cup wiping conduct is minimal. The potential prejudice is significant. Though that prejudice could be somewhat attenuated with both a cautionary instruction and a limiting instruction, on balance, I have concluded that the better course of action would be to exclude it altogether.

[59] Before ending, I should address several other issues that arose in connection with the argument surrounding the videotaped conduct of Mr. Cain.

[60] First, the Crown sought a ruling that the videotaped conduct was voluntary.

[61] In my view, there is no reason for the Crown to seek such a ruling for two reasons:

(a) The segment of the tape in dispute is not part of Mr. Cain’s statement per se. Rather, as will have been apparent from my foregoing reasons, I view it as post-offence conduct. It happened to be videotaped, but that does not change its character. As such, the voluntariness rule has no application;

(b) Even if I am wrong, the voluntariness of the statement has already been ruled upon by Brown J. The present proceedings are a retrial. Brown J. presided at the first trial which came to an unexpected, premature conclusion when one of the defence counsel experienced a serious health crisis. All counsel agree that the rulings of Brown J., including those relating to the voluntariness of the statements of Mr. Cain and Mr. Gillard-Gatza, remain binding, in accordance with s. 653.1 of the Criminal Code.

[62] Mr. Cain’s counsel argued that the Crown ought to be estopped from seeking a voluntariness ruling in relation to the conduct of Mr. Cain given that a voluntariness application was already brought and that issue was not addressed by the Crown. Mr. Bryant relied on the express wording of s. 653.1, which provides as follows:

In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made — or could have been made — before the stage at which the evidence on the merits is presented.

[63] More specifically, Mr. Bryant asserted that the phrase, “or could have been made”, creates an estoppel that prevents the Crown from bringing an expanded voluntariness application because it could have been made earlier.

[64] Mr. Bryant’s argument is essentially one of issue estoppel. The philosophical basis for such an argument is that it would be an abuse of process for parties to attempt to relitigate issues already litigated between them in a prior proceeding, or which could have been litigated given the exercise of reasonable diligence: see Reddy v. Oshawa Flying Club, [1992] O.J. No. 1337 (O.C.G.D.). The principle is designed to foster finality and avoid a multiplicity of proceedings.

[65] There are three reasons why I am not persuaded by Mr. Bryant’s submissions:

(a) As I noted above, the Crown need not establish voluntariness as a prerequisite to the admissibility of the videotaped conduct of Mr. Cain;

(b) The proceedings before Brown J. were not concluded. Indeed, they had only just commenced before a mistrial was ordered. The principle of issue estoppel does not arise in the circumstances. Concerns for finality are not in play; and,

(c) I am not satisfied that s. 653.1 of the Criminal Code incorporates the principles of issue estoppel through the language, “or could have been made”. That said, since it is not necessary for me to analyze s. 653.1 to fully dispose of this issue, I leave such an analysis to another day.

[66] Again, what follows in Appendices “A” and “B” are my rulings with respect to the balance of the requested edits.

Boswell J.

Released: April 20, 2015

APPENDIX “A”

Requested Edits to the Statement of Mr. Gillard-Gatza made October 20, 2011[^3]

(1)

Reference:

Page 10, lines 18-19

Synopsis:

The interview of Mr. Gillard-Gatza was conducted by OPP D/C Bruce Murray. Early on in the interview, he asked Mr. Gillard-Gatza where his cell phone was. Mr. Gillard-Gatza responded, “Good question. I don’t know. It was with my stuff in the car and the guys drove away and left us.”

Mr. Cain asserts that the assertion that “the guys (meaning Mr. Cain and Mr. Guerra) drove away and left us” is nothing but conjecture on the part of Mr. Gillard-Gatza.

Ruling:

In my view, there is nothing materially prejudicial in this statement. It expresses Mr. Gillard-Gatza’s state of mind and assists in explaining why he then spent the night wandering in the bush. It will become clear, as the trial evidence unfolds, that after the home invasion was interrupted, Mr. Gillard-Gatza and Mr. Hong got separated from Mr. Cain and Mr. Guerra. The latter two eventually headed back to Toronto on their own. Mr. Gillard-Gatza’s state of mind may very well be that they were abandoned by Mr. Gain and Mr. Guerra and that state of mind may, at least in part, inform his motivation to make his statement. There is no basis, in my view, to redact this statement.

(2)

Reference:

Page 11, lines 21-22

Synopsis:

Describing Mr. Cain and Mr. Guerra, Mr. Gillard-Gatza said “the other guy was black, I don’t know his name and there was a driver and I don’t know his name either.”

Mr. Guerra asks that this statement be redacted on the basis that it unfairly implicates him in a plan.

Ruling:

Mr. Guerra’s position is a nuanced one. He does not dispute that he was one of four individuals who travelled together in one car from Toronto to Minden on the night of October 19, 2011. He does not dispute that the car was his, or that he was the driver. Unlike his co-accused, however, Mr. Guerra did not go inside the McKelvey residence. He remained with his car at all material times. While the actus reus of participation in an unlawful enterprise may be made out, Mr. Guerra’s position is that the Crown has not and cannot make out the necessary mens rea to support a finding of culpability for any offence on Mr. Guerra’s part. In other words, he takes the position that, absent the statements of Mr. Gillard-Gatza and Mr. Cain, there is little evidence from which any trier of fact could safely or confidently draw an inference that he had the necessary state of mind for any offence, whether it be robbery, manslaughter or murder.

Mr. Guerra seeks, in the circumstances, to redact any portions of the statements of Mr. Gillard-Gatza and Mr. Cain that implicate him in a “plan” or that directly or indirectly impute any particular state of mind to Mr. Guerra. As I set out above, the statements of Mr. Gillard-Gatza and Mr. Cain are not admissible against anyone other than the statement-makers. Mr. Guerra is, understandably, concerned about the prejudice that may inure to him from statements – inadmissible against him – that implicate him in a plan, or impute a culpable mens rea to him. This prejudice, he submits, is particularly acute given that he is not able to cross-examine the statement-makers.

While I am sympathetic to Mr. Guerra’s concerns, I do not believe that this particular impugned utterance is prejudicial, given the context in which it arose.

Mr. Gillard-Gatza was asked by D/C Murray “…who’d you come up with?”

He answered, “an Asian guy…the other guy was black…and there was a driver and I don’t know his name either.”

There is no dispute that the driver was Mr. Guerra. Nothing in this particular passage goes beyond identifying Mr. Guerra as one of the persons – in particular the driver – who accompanied Mr. Gillard-Gatza to Minden. None of this is disputed. None of it is prejudicial, at least in the context of trial fairness.

There is no need to redact it. Indeed redacting it will leave a hole in the description given by Mr. Gillard-Gatza about who he came up to Minden with.

(3)

Reference:

Page 14, lines 2-7

Synopsis:

In this passage, Mr. Gillard-Gatza described everyone wearing black and putting on rubber gloves. He said he had the tape, Mr. Cain had the bat and Mr. Hong was doing nothing. He gave a very brief description of what happened when the three males entered the McKelvey residence.

Mr. Cain and Mr. Guerra wish to remove this passage on the basis that it unfairly implicates each of them. By “unfairly” I mean it implicates them in the commission of the offences by way of evidence that is clearly inadmissible against either of them.

Ruling:

Mr. Guerra’s position with respect to this passage is not, in my view, well-founded. He objects to the fact that Mr. Gillard-Gatza used the word “we”, as in “we all dressed in black wearing gloves”, thereby implicating Mr. Guerra in the plan. But it is apparent that, in this passage at least, the word “we” refers to the three males who entered the McKelvey residence.

Mr. Cain’s objection is based on the fact that Mr. Gillard-Gatza said it was Mr. Cain who wielded the bat and hit Mr. Kennedy “a couple of times”.

As will become apparent through the course of this ruling, Mr. Cain raises this same objection with respect to any points in Mr. Gillard-Gatza’s statement where he attributes words or conduct to Mr. Cain.

Mr. Gillard-Gatza’s statement is not admissible as part of the Crown’s case against Mr. Cain. But to understand Mr. Gillard-Gatza’s statement it is absolutely necessary to appreciate what he said he did and what he said the others in the house did. In other words, his admitted conduct has to be considered in the context of the overall event. What he says others did or did not do helps to contextualize what he says he did himself: see R. v. Chretien, as above, at para. 44. Mr. Cain’s counsel is obviously on solid ground when he expresses concern about an inability to cross-examine on the statement. This concern is somewhat attenuated by the fact that Mr. Cain has also given a statement in which his version of events – the who, what, when, where and how of the invasion – is well detailed.

I am not prepared to edit this passage. The probative value of the complete narrative exceeds the prejudicial impact to Mr. Cain, particularly where a clear limiting instruction will be provided.

The jury will be provided with a clear and timely instruction about the limited use of the out-of-court statements of accused persons. I also intend to instruct the jury, in the final charge, as to the case against each individual defendant – reminding them of what evidence is admissible against each, and what evidence must not be taken into account with respect to each accused.

(4)

Reference:

Page 14, lines 13-16

Synopsis:

In this passage, Mr. Gillard-Gatza was asked by D/C Murray, “were did you go after you left?” He said “…we were supposed to go to the car…and the car wasn’t there….so we ran through some trail…”

Mr. Guerra again expresses the concern that this passage implicates him in a nefarious plan.

Ruling:

Again, while I appreciate Mr. Guerra’s concerns, I am not persuaded that this passage creates any material prejudice to him.

In my view, it is all but axiomatic that the accused were going to return to the car. Mr. Guerra had a GPS navigation device in his car that the police seized. It provides details of the movements of the vehicle – and the timing of those movements – on the night of October 19, 2011. There is no dispute that Mr. Guerra drove up to Minden to the vicinity of the McKelvey residence, then waited nearby, then attended near the residence again, then drove around for some time in the general vicinity, then left and returned to Toronto. The inference that Mr. Guerra dropped off his co-accused and then waited to collect them, is so strong as to be all but unavoidable.

As Kane J. observed in R. v. Minoose, as above at para. 29, “In balancing probative value against prejudicial effect, the Court can consider whether the evidence adds much to the proof of the same issue by other expected evidence”. This principle cuts both ways of course. Redundant evidence may be less probative. But if the jury is going to have the evidence anyway, it is also less prejudicial. With respect to the passage in issue, my view is that it creates virtually no prejudice, but is clearly part of the narrative flow of Mr. Gillard-Gatza’s statement and probative of his state of mind in terms of his plan once he exited the McKelvey residence.

In the result, I find no basis to redact it.

(5)

Reference:

Page 15, lines 11-13

Synopsis:

D/C Murray told Mr. Gillard-Gatza that he doesn’t think he’s a bad kid, but that he got himself tied in with some people who are maybe a little more experienced “in this stuff” than he is.

Mr. Cain and Mr. Hong ask that this passage be redacted on the basis that it casts them as disreputable and experienced in home invasions. The Crown does not oppose the requested edit.

Ruling:

I agree that the statement of D/C Murray is gratuitous, unnecessary for the narrative, and does nothing more than blacken the character of the co-accused.

The entire passage, commencing, “now Mason…” and ending, “at this stuff than you.” is to be redacted.

(6)

Reference:

Page 18, line 13 to page 19, line 5

Synopsis:

D/C Murray asked, “okay what conversation was going on in the car? Who set this up? Who’s idea was it? Tin, okay. What conversation did you overhear in the car?”

Mr. Gillard-Gatza went on to describe the conversation involving an expectation that there was between $10,000 and $20,000 in the McKelvey residence, plus forty pounds of pot.

All three co-accused object to this evidence being before the jury in this format. They assert that it is not probative of any live issue and not admissible against any of them, while at the same time being highly prejudicial.

Ruling:

This passage is, in my view, relevant to and probative of the details of the plan – of the common unlawful venture that Mr. Gillard-Gatza was engaged in.

Moreover, the conversations detailed by Mr. Gillard-Gatza, if the jury concludes that the utterances were made, may be admissible in evidence against each of the accused pursuant to the co-conspirators’ exception to the hearsay rule. Provided the jury determines, to the reasonable doubt standard, that there was a joint plan to commit an offence (which is conceded by at least 3 accused), and the utterances were made during the course of and in furtherance of the object(s) of the plan, then the utterances are admissible against any accused whom the jury concludes was probably a member of the joint plan: see R. v. Mapara, 2005 SCC 23; R. v. Puddicombe, 2013 ONCA 506.

It is, in the circumstances, appropriate that the jury hear this passage.

(7)

Reference:

Page 22, line 21-24

Synopsis:

D/C Murray asked Mr. Gillard-Gatza what he heard the other guys talking about in the car. Rather than give details of the purported plan, he said, “all sorts of shit um just girls and other things they’ve done and everything”.

All three co-accused seek a redaction on the basis that the passage is inferentially inadmissible propensity evidence.

Ruling:

I agree with the submission of the co-accused. The co-conspirators’ exception to the hearsay rule will not be engaged with respect to this passage because it doesn’t refer to statements made in furtherance of the objects of any common plan. Instead it tends to blacken the character of the co-accused by inferring that they’ve “done other things”, presumably nefarious in nature, though lacking in detail.

It is not necessary for the flow of the narrative and will be redacted in its entirety.

(8)

Reference:

Page 23, lines 19-23 and page 24, lines 3-7

Synopsis:

In this passage, Mr. Gillard-Gatza stated that Mr. Hong was effectively the “mastermind” and everyone had distinct jobs, which he went on to identify.

All co-accused object to the passage in at least some measure – generally reflective of those parts of the passage that implicate them directly. For instance, Mr. Hong objects to being characterized as the only one who knew what they were about to do. Mr. Cain objects to being identified as the one with the bat. Mr. Guerra objects to being the “fourth guy” and identified as the “driver waiting for us”.

Ruling:

Again, while I understand the nature of the objections, in my view, the probative value of the passage outweighs its prejudice.

As his statement went on, Mr. Gillard-Gatza gave an increasingly detailed account of what happened in terms of the commission of the offences. His descriptions are highly probative. It is necessary, to understand his statement and to contextualize what he admitted he did, to appreciate what he said everyone else did.

A clear jury instruction will be required, obviously, but in my view, the jury will appreciate that this is Mr. Gillard-Gatza’s version of events and may be used only against him.

(9)

Reference:

Page 24, line 20 to page 25, line 5

Synopsis:

Mr. Gillard-Gatza described, in this passage, where Mr. Guerra parked and waited. Mr. Guerra is, again, concerned about being implicated in a plan. Moreover, he views Mr. Gillard-Gatza’s utterance as speculative in this instance.

Ruling:

Here again, the GPS device is going to provide the same evidence in terms of the movements of Mr. Guerra’s vehicle. It will corroborate what Mr. Gillard-Gatza is saying. The prejudice to Mr. Guerra is, in my view, very low. The probative value, in the meantime, is significant. The passage continues to detail Mr. Gillard-Gatza’s understanding of the plan, at least from his point of view.

Mr. Cain objects to Mr. Gillard-Gatza indicating that after Mr. Gillard-Gatza parked, they all put on their masks and gloves. This is minimally prejudicial and significantly probative against Mr. Gillard-Gatza. Any prejudice will be adequately ameliorated through an appropriate and timely jury instruction.

(10)

Reference:

Page 27, lines 12-26

Synopsis:

During the course of his statement, Mr. Gillard-Gatza gave four distinct accounts of the events as they unfolded inside the McKelvey residence: pages 13-14, then 24-30, then 44-46, and finally pages 77-97. Each retelling included additional details.

At page 27, he was in the midst of describing, for the second time, what happened after the 3 intruders entered the home. In this impugned passage, he described, in some detail, Mr. Cain striking Mr. Kennedy with a baseball bat and then with the butt end of a gun. Mr. Cain is, of course, concerned about the prejudice inuring to him in the face of this evidence, which is not admissible against him.

Ruling:

For reasons expressed above (see passage 3), this passage should not, in my view, be redacted. It is important for the jury to put into context Mr. Gillard-Gatza’s statements about what he did and about what he said others did. Only in the full context will the jury understand his version of how events unfolded and only then will they be in the best position to determine whether they accept his admission about what his particular role was.

Again, any prejudice to Mr. Cain will be satisfactorily ameliorated with a timely and clear jury instruction.

(11)

Reference:

Page 28, lines 25-26

Synopsis:

In this passage, Mr. Gillard-Gatza described events unfolding as the intruders made their escape from the McKelvey residence. He said Mr. Cain “grabbed the dope and put it in a bag.” He said Mr. Hong then “grabbed the bag and we started running…”

Mr. Cain objects to this passage on the same basis as many other passages: that it is inadmissible evidence that describes his purported participation.

Ruling:

I note again, as I did above, that Mr. Gillard-Gatza opposes any redaction of his account of events as they unfolded, in his recollection. His counsel stressed that his entire version is important for the jury to hear and appreciate so that they will be able to make the best assessment of his credibility and reliability. For reasons I have expressed above, I agree.

Moreover, this passage is an important part of the narrative as it explains how Mr. Hong and Mr. Cain happened to be in possession of a bag of marijuana – which is significant in terms of the course of events leading up to their arrest.

(12)

Reference:

Page 35, line 9 to page 36 line 17

Synopsis:

D/C Murray asked Mr. Gillard-Gatza if he was ever told “who these guys were at this house”. Mr. Gillard-Gatza explained that Mr. Hong had a buddy who used to buy pot from them and that’s where Mr. Hong got “the whole layout”. Mr. Gillard-Gatza went on to express concern for his safety as a result of giving a statement to the police.

Mr. Hong submits that this passage is not probative of any live issue in the case. He asserts that it is prejudicial to him by virtue of the inference that Mr. Gillard-Gatza is afraid of a reprisal from Mr. Hong.

Ruling:

Lines 9 through 16 on page 35 are probative of Mr. Gillard-Gatza’s understanding of the relationship between involved parties and his understanding of the overall plan.

The passage from line 17 on page 35 through to line 7 on page 36 involves Mr. Gillard-Gatza explaining something he apparently heard about Mr. Hong’s “buddy” turning himself in to the police for unknown reasons. This passage is not relevant to any live issue in this proceeding and accordingly lacks probative value. It is unnecessary for the narrative and should be redacted.

Lines 8 through 17 on page 36 comprise the passage Mr. Hong is particularly concerned about, given that it suggests Mr. Gillard-Gatza is afraid of Mr. Hong. The Crown considers it significant in terms of Mr. Gillard-Gatza’s motivation to make a statement. In my view, it is amply clear from the balance of the statement that Mr. Gillard-Gatza is upset and afraid about what his future will hold. His motivation(s) become apparent elsewhere in the narrative. As such, this passage is not significantly probative of any live issue. There is a potential prejudice to Mr. Hong, and possibly the other accused, arising because of the expressed fear of reprisal. The statement should be edited to redact lines 8 through to the first three words on line 17 (ending in “aware of that”). As edited, the statement will now end at line 16 on page 35 (where Mr. Gillard-Gatza says “no”) and pick up again partway through line 17 on page 36 (beginning with D/C Murray’s question, “what can you tell me about these two guys…”).

(13)

Reference:

Page 38, lines 15-27

Synopsis:

This passage is part of an ongoing discussion between D/C Murray and Mr. Gillard-Gatza about what Mr. Gillard-Gatza understood he was to gain by participating in the offences. Mr. Gillard-Gatza explained that he owed Mr. Hong $600 for marijuana and he was trying to clear that off.

Mr. Hong is concerned, understandably, with the bad character aspect of this passage, which portrays him as a dope dealer.

Ruling:

This passage is highly probative of Mr. Gillard-Gatza’s motivations; his connection to Mr. Hong; and his understanding of what he was to gain from the offences.

While there is an obvious reference to Mr. Hong dealing pot, the prejudice is lessened somewhat by the fact that there will be evidence from the arresting officers that Mr. Hong and Mr. Gillard-Gatza were found in possession of a bag of marijuana. The entire enterprise appears largely to have been based on the notion of stealing money and drugs.

This passage should not, in my view, be redacted. In addition to an instruction regarding the limited use of the statement(s) of one accused in a joint trial, the jury will also be cautioned about propensity evidence and the manner in which it must not be used.

(14)

Reference:

Page 41 lines 4-13

Synopsis:

D/C Murray asked Mr. Gillard-Gatza if the “other guys” had “done this before”. Mr. Gillard-Gatza answered that he believed so, though they didn’t say anything specific.

All defence counsel seek to have this passage redacted on the basis that it is not probative of any issue regarding Mr. Gillard-Gatza, and serves only to blacken the character of the co-accused, based, apparently, on a good deal of speculation on Mr. Gillard-Gatza’s part.

Ruling:

It is my view that where D/C Murray made comments about the “experience” or “hardcore” nature of the co-accused, those comments should be redacted, given that they have no probative value, but attract a certain level of prejudice by virtue of the fact that they tend to invite propensity reasoning. The passage in issue here, similarly, may risk inviting propensity reasoning. But having said that, it has probative value with respect to the issue of culpability for murder under s. 21(2) of the Criminal Code. Mr. Gillard-Gatza’s state of mind is an essential element, obviously, to culpability for murder. What he knew of the past experience of his co-accused and their propensities may be very important to determining whether he knew that it was probable that one of his co-accused would commit murder in the course of some other common, unlawful venture. In other words, it is relevant to and probative of the issue of foreseeability.

I am satisfied that, with an appropriate limiting instruction, the probative value of this passage outweighs its prejudicial impact.

(15)

Reference:

Page 43, lines 19-28

Synopsis:

At a number of points during the interview, D/C Murray told Mr. Gillard-Gatza that he thought Mr. Gillard-Gatza was not a bad kid, but that he got mixed up with some bad people. In this passage, D/C Murray – in answer to Mr. Gillard-Gatza’s question about whether he is going to go to jail for 25 years – explained that Mr. Gillard-Gatza was under arrest for first degree murder and that it will ultimately be up to the courts what happens to him. He added, “I think you seem like not a bad kid, you were just getting your life back together and you know you got mixed up and some guys are little more hardcore than you are so it’s something that you’re gonna have to deal with okay.”

Mr. Cain asks that the entire passage from lines 19-28 be redacted on the basis that it is just D/C Murray’s opinion and that it includes a reference that one might reasonably conclude blackens the character of the co-accused. Mr. Hong seeks only to redact the reference to “some guys are a little more hardcore”.

Ruling:

Mr. Gillard-Gatza asked D/C Murray if he knew what was going to happen. D/C Murray provided an honest answer. There is nothing, in my view, prejudicial in the first part of the response. It has some probative value in terms of informing Mr. Gillard-Gatza’s motivation to give a statement.

The reference to Mr. Gillard-Gatza being a good kid who got mixed up with some more hardcore guys is merely D/C Murray’s opinion. Whether it is even an honestly held one is not known. The reference to the co-accused being more hardcore is gratuitous. Neither of these references have anything but very slight probative value, but may serve to prejudice the co-accused.

The reference italicized in my synopsis above should be redacted.

(16)

Reference:

Page 44, lines 19-25

Synopsis:

This is yet another passage where Mr. Gillard-Gatza described Mr. Cain hitting Mr. Kennedy.

Mr. Cain seeks to have the reference redacted, as it implicates him as the intruder who wielded the bat and, inferentially, struck the fatal blows. Again, this is not admissible evidence against Mr. Cain; it is a crucial aspect of the case; and Mr. Cain is not able to cross-examine on the statement.

As I mentioned above, Mr. Gillard-Gatza opposes any redaction of his descriptions of events as they transpired – from his point of view – inside the McKelvey residence.

Ruling:

For reasons I have set out earlier (see passage 3), I am not prepared to redact this passage. It is highly probative of Mr. Gillard-Gatza’s involvement and his level of culpability. It is necessary, to fully understand and appreciate his statement – and to weigh its credibility and reliability – to hear his explanation about what he did, in the context of what everyone else did (according to him).

(17)

Reference:

Page 45, line 12 to page 46, line 6

Synopsis:

This passage is a continuation of Mr. Gillard-Gatza’s description – now with a little more detail – about what transpired during the home invasion. It implicates Mr. Hong and Mr. Cain, though through evidence not admissible against either one. Mr. Cain seeks its redaction.

Ruling:

For reasons previously set out, I am not prepared to compel the redaction of this passage.

One of the routes to first degree murder relied up by the Crown is constructive first degree murder – that the murder occurred during the commission of a forcible confinement. In this passage, Mr. Gillard-Gatza describes tying up Mr. Kennedy and says Mr. Kennedy was resisting, at which time “buddy hit him in the head with the gun and he stopped.” This passage may be crucially important in the context of Mr. Gillard-Gatza’s culpability for constructive first degree murder. Its probative value exceeds its prejudicial impact on Mr. Cain and/or Mr. Hong, which can be attenuated through a clear jury instruction.

(18)

Reference:

Page 46, lines 18-22

Synopsis:

Mr. Gillard-Gatza was asked by D/C Murray, “did you guys have gloves on the whole time you were in there?” Mr. Gillard-Gatza said he had gloves on “pretty well like the whole drive up”. He went on to say “we masked up, we put all this stuff on.”

Mr. Guerra is concerned that the reference to “we” implicates him in the plan, and he asks that the passage be redacted to include only the answer “yes we had gloves on”.

Ruling:

When this passage is viewed in the context of the overall statement, it appears to me that Mr. Gillard-Gatza was really speaking of the three males who intruded into the McKelvey home. There is very little, if any, prejudice to Mr. Guerra arising from this passage.

The reference to “we masked up, we put all this stuff on” is important to Mr. Gillard-Gatza’s narrative and probative of his particular role. My view is that the probative value outweighs any minimal prejudice and so the passage should not be redacted.

(19)

Reference:

Page 60, line 16 to page 61, line 11

Synopsis:

In this passage, Mr. Gillard-Gatza described Mr. Cain talking about having children with different mothers. D/C Murray made an offside joke about that not being unusual in Scarborough. Mr. Gillard-Gatza went on to say Scarborough is a “shit hole” and that he wants out.

Mr. Cain seeks to redact this passage on the basis that it is probative of nothing and tends to discredit him.

Ruling:

I agree with Mr. Cain’s position. The Crown did not oppose it save for perhaps the first two lines of the passage. I am of the view that the entire passage should be redacted, commencing with the line, “and he was talking about having kids he had a couple kids” on page 60 and ending at the middle of line 11 on page 61, after the words “work but...”.

There is no material probity to any conversation about Mr. Cain’s kids, nor about Scarborough in general. The statement will flow better if the entire passage is removed. What will be left is a relatively seamless discussion about Mr. Cain’s identifying features.

(20)

Reference:

Page 65, lines 7-12

Synopsis:

Mr. Gillard-Gatza described his role in the offences as including taping the occupants of the house to confine them. In this impugned passage, he described being advised on the ride up to Minden that he was going to have to do the taping. He said that Mr. Hong originally thought the driver was going to tape, but then the driver said he didn’t want to.

Mr. Guerra objects to the passage on the basis that, again, it attributes a state of mind to him; one that may implicate him in a plan by way of evidence that is otherwise inadmissible against him.

Ruling:

In this instance, I agree that the passage should be redacted. Mr. Gillard-Gatza’s understanding of his role, and the role he accepted, are obviously highly probative. But his purported evidence about the states of mind of Mr. Hong and/or Mr. Guerra would not be admissible even if he elected to testify at trial. Moreover, the fact that the driver may have changed his mind is not probative of Mr. Gillard-Gatza’s liability and unnecessary, in my view, for a fulsome appreciation of the narrative.

There is only limited prejudice to Mr. Guerra created by the statement, but sufficient to overcome the very minimal, if any, probative value of the passage.

In the result, the entire passage should come out, as should D/C Murray’s answer, “yeah” at line 6 on page 65. The statement will flow better if it links Mr. Gillard-Gatza’s answer at line 5, “he’s like yeah you’re gonna have to tape him” with D/C Murray’s next question, at line 13, “yeah okay now the car you went up in…”

(21)

Reference:

Page 71, lines 3-19

Synopsis:

This is another passage objected to by Mr. Guerra for reasons similar to the immediately preceding reference. Here, Mr. Gillard-Gatza described putting a duffel bag in the car. The duffel bag had a bat and tape in it. Mr. Gillard-Gatza said he took those things out of it and left his change of clothes in the bag, along with his house keys. He said the bag stayed in the car.

Ruling:

This passage is probative for a number of reasons. First, it supports the conclusion that Mr. Gillard-Gatza had control of the bag. Second, that he had a plan to change clothes. Third, that he planned to return to the car.

The passage incidentally engages Mr. Guerra as the driver and one might – if this was admissible evidence against Mr. Guerra – infer from it that the driver was an integral part of the overall plan. But the jury will be advised that this is not admissible evidence against Mr. Guerra and may only be taken into account in deciding the case against Mr. Gillard-Gatza.

Mr. Bayliss and Mr. Bryant, as part of their general submissions on editing, expressed the view that limiting instructions are often insufficient to eliminate or attenuate prejudice. Both referred to fairly recent research literature that supports the hypothesis that jurors have a much lower understanding of legal instructions than we give them credit for: for instance, see Marie Comiskey’s paper, Initiating Dialogue About Jury Comprehension of Legal Concepts: Can the “Stagnant Pool” Be Revitalized? (2010), 35 Queen’s L.J. 625. While it may be true that juror comprehension is not as sound as we may believe, the fact is that there is very limited available research on the issue in Canada. For now the law remains that jurors are deemed to understand and properly apply legal instructions from the bench: see R. v. Corbett, (1988), 1988 CanLII 80 (SCC), 41 C.C.C. (3d) 385 at para. 38; R. v. Suzack, as above, at para. 128; R. v. Araya, 2015 SCC 11 at para. 52.

As Doherty J.A. held in Suzack, at para. 128, “Like any limiting instruction, there is a risk that the jury will not abide by it. As long as we maintain trial by jury, however, courts must proceed on the basis that juries accept and follow the instructions given to them by the trial judge…” This statement reflects the law as it presently stands in Ontario. Of course in specific instances, a trial judge may conclude that a limiting instruction is inadequate to the task. But that is not the case with respect to the passage in issue here. In my view, a limiting instruction will be sufficient. In the result, I decline to order redaction of the impugned passage.

(22)

Reference:

Page 73, lines 8-11

Synopsis:

Preceding this short passage, Mr. Gillard-Gatza explained that he left his cell phone in the duffel bag he had discussed just moments earlier in his statement. In the impugned portion he said that he left the bag in the back of the car. He said, “we were supposed to come back and they were gone like.” D/C Morris added his view that [Mr. Cain and Mr. Guerra] left them “high and dry” and “don’t give a rat’s ass about you”.

Mr. Guerra expressed concern about the reference to the car, on the same basis as his other objections. Mr. Cain expressed concern about the “rat’s ass” comment on the basis that it was speculation, hyperbole and discredits the co-accused.

Ruling:

Mr. Gillard-Gatza clearly understood that he was to return to the car after the invasion. That much is more than clear in the record and, for reasons I have already stated, I think this passage is minimally prejudicial to Mr. Guerra.

D/C Murray’s gratuitous comment about the others not giving a “rat’s ass” about him is not highly probative of any live issue. That said, the Crown’s position is that it may inform why Mr. Gillard-Gatza continued to provide ever-increasing details of the home invasion. The “rat’s ass” comment was made more than once. This reference is tied into further comments by D/C Murray later on – at page 76 – where Mr. Gillard-Gatza said he did not want to be a “rat”. D/C Murray encouraged him to abandon that concern because his co-accused “didn’t give a rat’s ass about him.”

I agree that D/C Murray’s comments may serve to inform or explain the ongoing and increasingly detailed accounts given by Mr. Gillard-Gatza. They will be of assistance to anyone viewing the statement in understanding the dynamic of the interview, which in turn is of some significance to the matters of credibility and reliability.

While probity isn’t high, I do not consider the comments materially prejudicial. The jurors will appreciate D/C Murray’s comments are part of his interviewing technique and not meant to be hard fact.

I am not persuaded that the passage should be redacted.

(23)

Reference:

Page 75, lines 2-9

Synopsis:

This passage is more or less the same issue as the previous two impugned passages. Here Mr. Gillard-Gatza described Mr. Hong leaving his change of clothes in the car as well.

Mr. Guerra seeks redaction for reasons set out previously.

Ruling:

I am not prepared to redact this passage, for reasons expressed above. It is minimally prejudicial to Mr. Guerra. Any prejudice can be adequately addressed through a clear jury instruction.

I concede that the probative value of this passage in terms of the case against Mr. Gillard-Gatza is not high, but it does support a finding about his understanding about the plan for the participants to all change clothing after the offences were committed. The probative value, though modest, is sufficient to outweigh any prejudice.

(24)

Reference:

Page 76, line 11 to Page 77, line 6

Synopsis:

This passage is a lengthier version of the “rat’s ass” exchange. Mr. Gillard-Gatza expressed that he didn’t want to be a “rat”. D/C Murray expressed the opinion that “these guys”, meaning Messrs. Cain and Guerra, left him “high and dry”, by way of encouraging him to carry on with the disclosure. Indeed, he carried on and gave further details.

Ruling:

For the reasons expressed above, with respect to passage (22), I am not satisfied that this passage should be redacted.

(25)

Reference:

Page 77, line 25 to page 78, line 11

Synopsis:

In this passage D/C Murray asked Mr. Gillard-Gatza what did the black guy (Mr. Cain) take from the house. Mr. Gillard-Gatza suggested that perhaps he took some pot, then explained that he ran straight to the car and he and his buddy “peeled off”.

Mr. Cain seeks to redact this passage on the basis that it has no probative value to the case against Mr. Gillard-Gatza and otherwise directly implicates Mr. Cain through inadmissible evidence against him.

Ruling:

This is yet another passage where Mr. Gillard-Gatza described his actions in the context of the actions of the other involved parties. It has less probative value to the live issues than does Mr. Gillard-Gatza’s description of events inside the home when the killing occurred. But it remains a part of his overall narrative of the commission of the offences and has probative value for all the reasons I have previously expressed.

Its prejudice is minimal and overborne by its probity. I am not persuaded that it should be redacted.

(26)

Reference:

Page 79, lines 5-10

Synopsis:

Pages 77-90 of Mr. Gillard-Gatza’s statement contain perhaps the most detailed description of events as they unfolded immediately before, during and after the home invasion. This iteration of his description of events, like the previous iterations, includes descriptions about what others – most notably Mr. Cain and Mr. Hong – did, as well as what he did himself.

Again, Mr. Cain seeks to redact any references to his purported participation on the basis that he is implicated by inadmissible evidence and he will have no opportunity to cross-examine on the statement.

Ruling:

For reasons expressed above (see passage 3), it is my view that this passage should not be redacted. Again, in brief, I believe it is necessary, to understand Mr. Gillard-Gatza’s admission, that the jury hear what he says he did in the context of what others did.

(27)

Reference:

Page 80, lines 4-14

Synopsis:

In this passage, Mr. Gillard-Gatza described the movements of Mr. Guerra’s car immediately prior to the invasion.

Mr. Guerra objects to the passage on the basis that it may implicate him in a plan. In other words, it may provide circumstantial evidence of his state of mind by evidence that is inadmissible against him and otherwise absent in the balance of the evidentiary record.

Ruling:

The movements of Mr. Guerra’s car are detailed in the data that was extracted from his GPS device. That is to say, the substance of Mr. Gillard-Gatza’s statement will ultimately be before the jury through other, admissible evidence. In the result any prejudice to Mr. Guerra is minimal. This passage is, again, part of Mr. Gillard-Gatza’s narrative of the commission of the offences and, in my view, should remain, unredacted, for reasons I have previously expressed.

(28)

Reference:

Page 82, lines 6-10

Synopsis:

Further description of Mr. Cain striking Mr. Kennedy with the bat.

Ruling:

This will not be redacted, for reasons previously expressed.

(29)

Reference:

Page 83, lines 7-14

Synopsis:

In this passage, Mr. Gillard-Gatza described Mr. Cain throwing down the bat, picking up a rifle and striking Mr. Kennedy in the back of his head.

Ruling:

Again, I am not persuaded that this important part of Mr. Gillard-Gatza’s narrative should be redacted, notwithstanding the potential prejudice to Mr. Cain. I am satisfied that the potential for prejudice will be attenuated by a clear limiting instruction.

(30)

Reference:

Page 94, line 7 to page 95, line 3

Synopsis:

In this particularly interesting passage D/C Murray asked if there were any shots fired during the course of the home invasion and then whether any of the group of invaders had a gun. Mr. Gillard-Gatza said the only weapon was a bat. He said Mr. Hong has a “Ting” which he interpreted to mean a gun. He said he told Mr. Hong that he did not want to be involved if there was a gun. He said he had never seen Mr. Hong with a gun and confirmed that no gun was used in the commission of the offences.

Mr. Hong seeks a redaction of this passage on the basis that it paints him out to be the owner of a presumably illegal firearm.

Ruling:

This passage is prejudicial to Mr. Hong to be sure. But it is also highly probative of Mr. Gillard-Gatza’s state of mind. If the jury believes him when he said he didn’t want to do it if there were going to be guns, that may be very significant in their determination of his state of mind and of the matter of foreseeability.

The prejudice to Mr. Hong is real, but it can, in my view, be satisfactorily attenuated through a limiting instruction.

(31)

Reference:

Page 98, line 24

Synopsis:

D/C Murray offered Mr. Gillard-Gatza the opportunity to say something to the family of Mr. Kennedy. He said, “I’m sorry I didn’t stop this guy [i.e. Mr. Cain] from beating your son’s head in”.

Mr. Cain’s objection is that it implicates him, yet again, as the bat-wielder.

Ruling:

This is yet another example of Mr. Gillard-Gatza describing his role, in the context of what others did. He suggests here that his wrongdoing centred around the failure to stop another person from striking Mr. Kennedy. This remains an important passage given that Mr. Gillard-Gatza’s credibility and reliability will be a central issue in the trial. The prejudice to Mr. Cain is arguably slightly higher here due to the somewhat inflammatory language used by Mr. Gillard-Gatza. But in the end, I expect the jury to understand and follow my instruction about the limited use they may put this statement to. In the result, I decline to edit out this passage.

(32)

Reference:

Page 99, lines 16-20

Synopsis:

Once again, D/C Murray offered his opinion that Mr. Gillard-Gatza was not a bad guy and just got himself caught up with some bad people. All of the co-accused seek to redact this passage.

Ruling:

I agree with the defence position for reasons set out above at passage (5) above.

(33)

Reference:

Page 101, lines 13-14

Synopsis:

Here, Mr. Gillard-Gatza expressed concern about what he might tell his step-father about what happened: “what am I going to tell him like like my buddies killed some kid and I was there…”

Mr. Cain seeks to have this passage removed on the basis that, again, it attributes the killing to others, notably him.

Ruling:

Again, this is just another example of Mr. Gillard-Gatza describing the killing and minimizing his role in it. Whether he is believable and reliable is a central issue for the jury. They will be in the best position to make decisions when they hear his entire narrative in context.

Again, any modest prejudice to Mr. Cain will be addressed through a limiting instruction.

(34)

Reference:

Page 103, lines 10-14

Synopsis:

At this point, nearing the end of the interview, Mr. Gillard-Gatza described Mr. Hong getting injured. He described Mr. Cain swinging the bat and Mr. Hong getting struck by a deflection.

Ruling:

Mr. Cain seeks a redaction. Again, for reasons I have already set out repeatedly now, I am satisfied that the passage is probative, important to the narrative and only modestly prejudicial. Any prejudice will be attenuated through a limiting instruction.

(35)

Reference:

Page 104, line 8 to page 105, line 3

Synopsis:

In this passage, very near the end of the interview, D/C Murray indicated at several points his opinion – whether honestly held or not – that Mr. Gillard-Gatza was being honest.

Mr. Guerra objects to the officer’s opinions going before the jury.

Ruling:

I agree with Mr. Guerra. I do not think the officer’s opinion of the honesty of Mr. Gillard-Gatza is relevant, nor helpful. Indeed, he may not even have been truthful. Certainly it is not appropriate for one witness to opine on the veracity of another witness.

The issue, for me, is with respect to the appropriate editing. At lines 8-9, D/C Murray asked, “yeah okay anything else you can think of ta ta tell me I think you’ve been pretty honest with me but”

Mr. Gillard-Gatza goes on to explain that he has been 100% honest and that if he knew more he’d tell more.

In my view, Mr. Gillard-Gatza’s confirmation that he has given 100% truthful responses is significant in terms of the jury’s assessment of his credibility and reliability. In particular, there may be other evidence that either supports or discounts his version. In the circumstances, it is necessary to include the question of D/C Murray at lines 8-9 in order that Mr. Gillard-Gatza’s responses will be understandable. That said, D/C Murray’s comment at lines 19-20: “yeah I’ll give you at least a hand shake for being honest I know you’re you got yourself in a ton of shit” is gratuitous and unnecessary and should be removed”. The same goes for his comments found in the first three lines on page 105.

In order to make the editing more palatable, I order the following redaction: from line 19 on page 104 to line 5 on page 105, inclusive.

(36)

Reference:

Page 105, line 25 to page 106, line 9

Synopsis:

More comments from D/C Murray about Mr. Gillard-Gatza’s honesty.

Ruling:

For the reasons expressed above, the statement should be edited to remove the passage from the last line on page 105 (where Mr. Gillard-Gatza said, “and I guess yeah that in itself has a big part to do with it but…) to line 10 on page 106 (where Mr. Gillard-Gatza said “I know”).

APPENDIX “B”

Requested Edits to the Statement of Mr. Cain made November 1, 2011

(1)

Reference:

Page 3, line 72 to page 4, line 98

Synopsis:

Mr. Cain was interviewed by OPP Detective Sergeant Darren Miller. The interview took place on November 1, 2011 between just after midnight and 2:12 a.m.

Before Mr. Cain was brought into the interview room, D/Sgt. Miller made some comments on the record which included an apology to the family of Ryan Kennedy.

Ruling:

The Crown consents to Mr. Cain’s request that the apology be edited. I agree that there is zero probative value to it and it may evoke an emotional response.

The last two lines on page 1, commencing with the phrase, “I am just going to be uh stepping out…” to the end of the apology at line 8 on page 2 will be redacted.

(2)

References:

Page 4, lines 6-9; and Page 6, lines 4-15

Synopsis:

I am addressing these two passages together given their connectedness. Both passages involve D/Sgt. Miller asking Mr. Cain if he had spoken to a lawyer and Mr. Cain confirming that he had.

Mr. Cain objects to the passages on the basis that they have no probative value with respect to the case against him and at the same time create prejudice given the risk that the jury may improperly infer that he is more likely to be guilty because he spoke to a lawyer.

Ruling:

I agree with Mr. Cain’s submissions.

The Crown asserts that reliability is enhanced by virtue of the fact that Mr. Cain had spoken to a lawyer, but I am not persuaded by that assertion. Any probity, grounded in reliability, would be slight at best. There is a real risk of an improper inference being drawn, as raised by Mr. Cain. Moreover, as Moldaver J.A., as he then was, held in R. v. Sodhi, 2003 CanLII 52179 (ON CA), [2003] O.J. No. 3397, where references to consultations with counsel are made, “as a general rule, the better practice would be to excise them rather than to make them the subject of a limiting instruction.”

The Crown expressed concern that Mr. Cain may, at some point, elect to call evidence about a health condition he suffers from and perhaps even assert that it played a role in the statement he made, undermining its reliability. The Crown’s concerns in this regard are speculative at present. Should the scenario described by the Crown materialize, this particular edit may be revisited for relevance and probity.

In the meantime, both passages are to be redacted in full. For clarity, the passage on page 6 commences on line four with the words, “first of all the first things I check…” It ends at the end of line 15.

(3)

Reference:

Page 8, lines 23-24

Synopsis:

Mr. Cain said he knew he wasn’t getting bail for a while.

Ruling:

This passage will be redacted on consent.

(4)

Reference:

Page 13, line 20 to page 14, line 4

Synopsis:

D/Sgt. Miller asked Mr. Cain about his children. He mentioned having a son with a woman he was cohabiting with, as well as two daughters with another woman. D/Sgt. Miller asked him if he saw the two girls and he said their mother had been keeping them from him and he’d had to go to court to get access to them.

Ruling:

This passage will also be redacted, on consent.

(5)

Reference:

Page 16, lines 4-23

Synopsis:

This passage is further discussion about Mr. Cain’s access to his two daughters

Ruling:

Again, this passage will be redacted on consent. For clarity, the redaction will end on the last line of page 16, after the wording, “worse for sure okay…”

(6)

Reference:

Page 17, lines 7-12

Synopsis:

In this passage, near the beginning of the interview, D/Sgt. Miller took some time to make comments that one might reasonably consider encouraging in nature. By “encouraging”, I mean encouraging Mr. Cain to make a statement.

One of the comments he made was about what an amazing job the investigators had done and what an amazing group of detectives worked on the case.

Mr. Cain wants these references redacted on the basis that they are not probative and reflect only D/Sgt. Miller’s self-serving opinions. It will ultimately be for the jury to determine whether the case against Mr. Cain has been proven to the reasonable doubt standard.

Ruling:

I agree with Mr. Cain’s position.

The Crown asserts that D/Sgt. Miller’s comments are part of a technique designed to encourage the subject of the interview to speak freely. They are relevant, it is submitted, because they, at least in part, inform Mr. Cain’s motivation to make a statement.

This is an example of D/Sgt. Miller embellishing the strength of the case built by investigators. Sometimes, an accused person will argue that particular interviewing techniques, such as overstating the strength of the position of the police, undermine the reliability of a statement given in the face of such techniques. That is not the case here. If it were, then of course this passage would be highly relevant. As it stands, however, the opinions of the interviewing officer have very little probative value in my view. Mr. Cain’s motivations are revealed as the interview goes on. In the meantime, the risk of prejudice is clear: the jury may place unwarranted weight on D/Sgt. Miller’s remarks to the detriment of all accused.

This passage is to be redacted commencing with the phrase, “um but I’ll tell you…” in line 6 and ending with “…happening is is uh” at the beginning of line 14 on page 17. The passage, as edited, will now flow from “…this is a very serious matter okay - - - I think it’s fair for everyone to get the opportunity to tell their side of the story…”

(7)

Reference:

Page 17, lines 22-23

Synopsis:

While encouraging Mr. Cain to make a statement, D/Sgt. Miller suggested they “…strip away the fact that you might have some affiliations with gangs…”

Ruling:

There is no assertion in this case that any of the accused are involved in gangs, or that the offences were in any way gang-related.

This passage will be redacted, on consent.

(8)

Reference:

Page 21, lines 13-14

Synopsis:

D/Sgt. Miller described the “fight or flight” response and suggested to Mr. Cain, “…which I’m I’m sure you’ve you’ve had some dangerous situations in your life…”

Ruling:

This phrase carries with it a risk of inviting impermissible propensity reasoning and will be redacted on consent.

(9)

Reference:

Page 23, lines 16-18; page 24, lines 22-23

Synopsis:

These passages, again impugned by Mr. Cain, involve D/Sgt. Miller expressing further opinions about the investigation and the strength of the case the police put together:

Page 23: “there was mistakes made from the beginning and after right well we pick up a lot of those…”

Page 24: “…they’ve done a the the officers have done an amazing job here okay.”

Ruling:

These passages are to be redacted, for the reasons set out under passage (6) above. In short, they have little, if any, probative value, but are prejudicial because they carry with them the risk that the jury may attribute some weight to the officer’s view, which of course should be accorded no weight at all. The skill of the investigating officers and the quality of their work on this investigation are ultimately arguments that Crown counsel may make in closing submissions.

(10)

Reference:

Page 25, lines 10-15

Synopsis:

As I indicated above with respect to the application to edit Mr. Gillard-Gatza’s statement, Mr. Guerra takes the general position that any references to his involvement in a plan or joint venture should be redacted. Obviously Mr. Cain’s statement is not admissible in evidence against Mr. Guerra. Mr. Guerra will essentially concede that he drove the three co-accused to Minden on the night in question and waited for them. Later he and Mr. Cain spent some time looking for Mr. Gillard-Gatza and Mr. Hong, without success, and they returned to Toronto without the latter two. Mr. Guerra will not concede, however, and will ultimately advance the position, that the Crown has failed to prove his mens rea for any offence beyond a reasonable doubt. In the circumstances, any reference in any out-of-court utterance of a co-accused that implicates him in a joint plan, is highly prejudicial to him and, in his submission, should be redacted.

In this particular passage, Mr. Cain told D/Sgt. Miller that he called Mr. Guerra and told him, “…this is what’s going down if you’re down I’ll give you half of what I’m getting…whatever these guys need a ride are you down and he’s like yeah I’m down…”

Mr. Guerra objects to this passage on the basis that it is inadmissible against him and attributes to him a state of mind, to wit, a willingness to participate a “what’s going down” for a half-share in Mr. Cain’s stake.

Ruling:

In this instance, I agree with Mr. Guerra’s submissions. This is not like many of the instances referred to above, where comments about Mr. Guerra’s role said little, if anything, more than what his GPS device would demonstrate.

In this instance, Mr. Cain is directly implicating Mr. Guerra in the joint venture. Essentially he says he told Mr. Guerra what the plan was and if Mr. Guerra agreed to participate in it, he’d share ½ of Mr. Cain’s profit. This is highly prejudicial to Mr. Guerra and unnecessary either for the narrative or for its probity with respect to any live issues affecting Mr. Cain.

The connection between Mr. Cain and Mr. Guerra is of some significance, but in my view, it is enough to include the passage, “…all you gotta do is call a driver and so I called my friend which is Raph…and I said Raph like you know like I need a drive…”

In my view, whatever limited probative value the impugned passage has, it is outweighed by its prejudice to Mr. Guerra and the specific passage set out above in italics should be redacted.

(11)

Reference:

Page 28, lines 11-15

Synopsis:

During his statement, Mr. Cain provided incremental disclosure of the particulars of the offences – at least from his point of view. At this relatively early part of the interview, he described leaving the McKelvey residence in a rush and said he stopped to catch his breath and call for the driver. At that point, Mr. Gillard-Gatza and Mr. Hong ran off, he said. After the driver (Mr. Guerra) picked him up, they spent some time looking for the others, without success.

Mr. Guerra asks that this passage be redacted, for reasons I have already set out previously.

Ruling:

In this instance, I am satisfied that the probative value of the passage outweighs any prejudice to Mr. Guerra. This passage is an important part of Mr. Cain’s narrative of what happened after the three intruders exited the house.

Any prejudice to Mr. Guerra is significantly reduced given that there will be cell phone records that support the call from Mr. Cain to Mr. Guerra, and GPS data that will demonstrate the timing and movement of Mr. Guerra’s vehicle. In other words, the substance of Mr. Cain’s comments will come out through admissible evidence in any event.

I am not prepared, in the circumstances, to redact this passage.

(12)

Reference:

Page 28, lines 20-24

Synopsis:

Mr. Cain detailed a discussion purportedly between him and Mr. Guerra in the car as they were looking for Mr. Hong and Mr. Gillard-Gatza after the offences were committed.

Ruling:

Mr. Guerra initially sought to edit this passage. Mr. Cain opposed the editing. His reference to “…fuck it yo these guys messed up…” is, he argues, important to his defence.

In the face of Mr. Cain’s submissions, Mr. Guerra resiled from his editing request and the passage will remain intact.

(13)

Reference:

Page 49, lines 5-11

Synopsis:

This passage contains further references to gang affiliations.

Mr. Cain asks that it be removed to address a risk of propensity reasoning.

Ruling:

The Crown consents to the redaction of the phrase “…strip away gang affiliations…” in line 5, and that phrase will be removed, on consent.

The Crown opposes the redaction of the balance of the passage, where Mr. Cain repeatedly denies that there was any gang involved. The Crown argues that this information is important to the jury’s appreciation that these offences weren’t gang-initiated, but rather where initiated by someone connected to Mr. McKelvey through the drug trade in Minden.

In my view, D/Sgt. Miller’s comment, “strip away gang affiliations” must be redacted because it is highly prejudicial and has zero probative value. Crown counsel agrees with this redaction. The balance of references to gangs is entirely derivative of D/Sgt. Miller’s comment and should also be redacted. Leaving it in, after redacting D/Sgt. Miller’s comment, leaves a narrative that makes little sense and is gratuitously prejudicial. The jury should never be under the impression that this was a gang-initiated event. There is an adequate evidentiary foundation elsewhere to explain the connections between involved parties and to explain how the plan was initiated.

In the result, the entire passage should be redacted.

(14)

Reference:

Page 43, lines 12-16

Synopsis:

This is another passage that Mr. Guerra says unfairly implicates him in a joint plan. D/Sgt. Miller asked, “but how what was the plan like cuz there was obviously gonna be four of you involved?” Mr. Cain answered, “yeah”.

Ruling:

The Crown argues that this passage is probative because it goes to Mr. Cain’s reliability. On that basis, I consider the probative value low. The level of prejudice to Mr. Guerra is debatable. On the one hand, Mr. Cain may be saying little more than that there were four of them who went up to Minden. That will not be a contested issue in this trial. On the other hand, the question was specific: were there four of them involved in the plan? It is for the Crown to prove – through admissible evidence against him – that Mr. Guerra was part of a joint plan.

On balance, I consider the prejudice to Mr. Guerra to outweigh the probative value of the reference to the plan involving four people.

The passage should be redacted so that what remains is as follows:

D/SGT. MILLER: but how what was the plan?

D/SGT. MILLER: what was the deal made before cuz I’m sure you guys would hash out the plan as far as who’s gonna get what and all that?

(15)

Reference:

Page 44, lines 4-9

Synopsis:

As the conversation about the plan carried on, Mr. Cain said the split of the proceeds from the offence (money and drugs) was to be three ways. Mr. Cain would then be responsible for splitting his share with the driver.

Mr. Guerra, for reasons already explained above, seeks to redact the passage.

Ruling:

In light of my rulings with respect to passages 10 and 14, it reasonably follows that I would be concerned about Mr. Cain’s reference to a split of his share with Mr. Guerra.

The problem with this particular passage, is that it is highly probative of the overall plan, the motive for the offences, and how any proceeds of the offences were to be divided amongst the co-conspirators. As I set out above, one of the fundamental principles applicable to the editing exercise is that while edited statements must be free from unnecessary prejudice, the remaining portions must retain their proper meaning. In my view, the impugned passage cannot be edited in such a way as to address the prejudice to Mr. Guerra, while at the same time retaining the proper meaning of the passage.

In particular, I cannot reasonably redact references to Mr. Cain splitting with the driver, because all that would be left is his indication that proceeds were to be split three ways. That, in the final analysis, is not what Mr. Cain said.

In the result, I decline to edit this passage. On balance, the probative value together with the need to retain the proper meaning of the passage, outweigh the prejudice to Mr. Guerra. I will address the prejudice, again, through the use of a limiting instruction.

(16)

Reference:

Page 47, lines 5-7

Synopsis:

D/Sgt. Miller specifically questioned Mr. Cain about the driver. He asked about the description of the car and asked if the driver went inside. Mr. Cain said, “he was just outside waiting for us” and confirmed that Mr. Guerra was never in the house. D/Sgt. Miller then asked, “he was basically the wheelman is that fair to say?” Mr. Cain replied, “that’s all yes”.

Mr. Guerra is concerned specifically about the phrase “wheelman”, even though he is does not take objection to the use of the term, “driver”.

Ruling:

I do not consider there to be a meaningful difference between the terms “driver” and “wheelman”. That Mr. Guerra drove there, waiting, and then drove back is not going to be a contested issue in this case. His mens rea is what is in issue. This utterance says nothing about his mens rea in my view.

It remains part of the narrative as to what Mr. Cain’s role was, in the context of the roles of others and, as such, has probative value to the Crown’s case against him.

I find no basis on which to redact this passage.

(17)

Reference:

Page 66, line 16 to page 67, line 17

Synopsis:

In this passage, D/Sgt. Miller asked specifically, “what was the plan with Raph (Mr. Guerra)?” Mr. Cain outlined where Mr. Guerra was to wait and that he was to call for a pick up when they were done.

Mr. Guerra objected to this passage for reasons I have expressed above. Mr. Cain took the position that no editing should occur, on the basis that these passages are significant to his defence.

Ruling:

Mr. Bayliss, on behalf of Mr. Guerra, conceded that his request cannot succeed in the face of Mr. Cain’s objection and so the request to redact this passage was abandoned.

(18)

Reference:

Page 81, lines 2-11

Synopsis:

At this point in the interview, Mr. Cain was providing details of the events inside the McKelvey residence. He said he was kneeling on Mr. Kennedy while Mr. Gillard-Gatza was trying to restrain him with duct tape. He said he called Mr. Hong for help and Mr. Hong came and kicked Mr. Kennedy in the face.

Mr. Hong seeks to exclude this passage on the basis that it does not advance the case against Mr. Cain, but prejudices Mr. Hong. Mr. Cain’s position is that this passage should remain as part of his narrative.

Ruling:

I do not agree with Mr. Hong’s position that this evidence does not advance the case against Mr. Cain. The Crown relies on constructive first degree murder as one route to culpability. In particular, that the murder occurred in the course of an unlawful confinement. A live issue will be whether the murder and the unlawful confinement were linked together both causally and temporally, such that they comprise a single transaction. In addition, it will be necessary for the Crown to establish that, with each accused, his conduct was an essential, substantial and integral part of the killing. This passage, is in my view, highly probative.

The prejudice to Mr. Hong is apparent, but can be attenuated through a limiting instruction.

(19)

Reference:

Page 82, Line 18 to Page 83, line 7

Synopsis:

This passage is a continuation of the exchange that was addressed at passage (18) above.

Ruling:

For the reasons expressed at passage (18) above, I am not prepared to redact the passage in issue.

I will add that, with respect to both passages (18) and (19), it is also important, for the jury’s assessment of Mr. Cain’s credibility and reliability, that they understand fully what he says his role was in the context of the roles of all others.

Again, prejudice to Mr. Hong will be addressed through a limiting instruction.

(20)

Reference:

Page 88, lines 16-25

Synopsis:

This is more of Mr. Cain’s description of events as they unfolded inside the McKelvey residence. At this particular point, Mr. Cain said that Mr. Hong went outside to look for the marijuana and then he came back inside and began to repeatedly punch Mr. McKelvey.

Mr. Hong objects on the basis of the prejudice that will inure to him.

Ruling:

Again, this is an essential part of Mr. Cain’s narrative. Moreover, this passage details an attack on Mr. McKelvey. Mr. McKelvey will be a Crown witness and is expected to provide similar details about Mr. Hong’s attack on him after coming back inside the house. The fact that this same evidence will be adduced in a manner admissible against Mr. Hong (1) tends to reduce the prejudicial impact of Mr. Cain’s comments; and (2) tends to corroborate Mr. Cain, which is a significant factor for Mr. Cain’s defence.

I decline to edit any part of this passage.

(21)

References:

(a) Page 89, lines 15-18;

(b) Page 90, line 7

(c) Page 91, line 8 to page 92 line 5;

(d) Page 94, lines 25 and 26;

(e) Page 95, lines 2, 4, and 8-15

Synopsis:

I will address these numerous passages, all objected to by Mr. Hong, together as one objection because the bases for the objection and for my ruling are similar.

Mr. Cain continued, for some time, to describe Mr. Hong’s attack on Mr. McKelvey. He said that as Mr. Hong was punching Mr. McKelvey, Mr. Kennedy appeared to be regaining consciousness. He said Mr. Hong called out for Mr. Gillard-Gatza to “hit him”, but Mr. Gillard-Gatza appeared reluctant to do so. Mr. Cain explained that he had a pellet gun in his hand and Mr. Hong came and took it from him and struck Mr. Kennedy in the head with it. What is particularly objectionable to Mr. Hong is that Mr. Cain repeatedly used the word “overkill” to describe Mr. Hong’s conduct. Specifically, he suggested that Mr. Hong had already found the marijuana and anything beyond that was unnecessary (overkill). He specifically described the repeated punching of Mr. McKelvey as “overkill” and went on to describe the further attack on Mr. Kennedy as “overkill”. On occasions, D/Sgt. Miller parroted the word back to him.

Mr. Hong objects to this inadmissible evidence about his role in the offences, and in particular, objects to the inflammatory term, “overkill”.

Ruling:

This ruling will be consistent with others I have made, above. This entire passage, while undoubtedly prejudicial to Mr. Hong, is highly probative. It is an essential part of Mr. Cain’s narrative about what he did, in the context of what other’s did.

The “overkill” comments are particularly probative of Mr. Cain’s state of mind and what he understood the plan to be. Mr. Cain objects to any redaction of his use of the word, “overkill” but takes no position on the redaction of instances where D/Sgt. Miller the term. In my view, the limited use of the term by D/Sgt. Miller adds nothing significant to the prejudice to Mr. Hong.

This is an important part of Mr. Cain’s narrative. I decline to redact any part of it. Its probative value outweighs any prejudice to Mr. Hong. Again, prejudice to Mr. Hong will be addressed through a limiting instruction.

(22)

Reference:

Page 99, lines 18-27

Synopsis:

This is another instance where Mr. Cain described the manner in which he contacted Mr. Guerra to come and pick him up after he left the McKelvey residence.

Mr. Guerra objects to this passage because it tends to attribute a particular state of mind to him; one that may support a finding that he was part of a criminal joint venture. Mr. Cain is opposed to the proposed editing.

Ruling:

I have already canvassed above the fact that Mr. Cain’s evidence in this respect may well be corroborated by phone and GPS records. The prejudice to Mr. Guerra is significantly reduced in the result. Moreover, this particular passage is part of a larger section of the interview where Mr. Cain was describing his health and the impact of this incident on his health. It may be an important part of his defence.

On balance, the probative value of the passage exceeds the prejudice it may cause to Mr. Guerra. Again, a limiting instruction will be provided.

(23)

Reference:

Page 100, line 19 to page 102, line 9

Synopsis:

This is a large passage that involves two telephone calls Mr. Cain said he had with Mr. Guerra on October 20, 2011. The calls were essentially about whether they should return to the Minden area to look for Mr. Gillard-Gatza and Mr. Hong. Further, whether they had been ripped off by the others.

Mr. Bayliss argues that this passage is not significantly probative in terms of the case against Mr. Cain because what’s really important is what went on inside the McKelvey residence the night before. It is clearly prejudicial to Mr. Guerra because it implicates him in the plan.

Mr. Cain does not object to the requested redactions, but the Crown does object.

Ruling:

The Crown’s position is that this passage – and the phone calls between Cain and Guerra – is post-offence conduct that may assist the jury in assessing the credibility of Mr. Cain. He said he had two calls with Mr. Guerra. He mentioned the approximate times of the calls. One is supported in the cell phone records, but not the other.

In theory, everything said by Mr. Cain may be considered in the overall assessment of his credibility, including the comments he made about his phone conversations with Mr. Guerra on October 20, 2011. In my view, if the relevance of those phone conversations is limited to the issue of general credibility, then their probative value is slight. The passage does little to advance the case against Mr. Cain and is entirely inadmissible against Mr. Guerra.

On balance, I find that the prejudice to Mr. Guerra outweighs the probative value of the passage, if any, and order that it be redacted in its entirety.

(24)

Reference:

Page 105, lines 13-17; page 106 lines 11-18

Synopsis:

D/Sgt. Miller asked Mr. Cain whether his nickname was Squints. He said, “Squits, huh, wow.” D/Sgt. Miller asked him, “what’s your nickname?”. He said “I don’t know, they call me the Mayor that’s an old title. D/Sgt. Miller confirmed it’s “Mayor of Teasdale”.

Mr. Cain objects to this passage on the basis that there is some prejudice to Mr. Cain in the reference to him being called the Mayor of Teasdale.

Ruling:

I confess I am not clear on exactly what inherent prejudice there is in the title, “Mayor of Teasdale”. D/Sgt. Miller went on to make some lighthearted comments about requiring a new election, which will be redacted on consent. These comprise line 18 on page 105 to line 10 on page 106, inclusive.

There is some probative value to the impugned passage, as the jury may find that Mr. Cain, in his responses, was trying initially to distance himself from the nickname “Squints”.

I am unable to conclude that there is any prejudice to Mr. Cain in these passages, so the balance of the disputed references on pages 105 and 106 will remain. The only part to be redacted is as indicated above.

(25)

Reference:

Page 107 line 30 to page 109, line 24

Synopsis:

In this lengthy passage, Mr. Cain asked how D/Sgt. Miller knew his nickname was “Squints”. There followed a long passage of entirely irrelevant and potentially prejudicial discourse, all of which is to be redacted on consent, save for a comment by Mr. Cain to the effect that “I always find myself doing some dumb shit you know.” The Crown seeks to maintain this utterance as part of the statement. Mr. Cain seeks its redaction.

Ruling:

I agree with Mr. Cain in this instance. The entire passage beginning at line 30 on page 107 to the end of the wording, “that came out you wanted to know” in line 24 on page 107 is to be redacted.

The comment in dispute is an integral part of the passage being redacted. To extract it and keep it in the transcript would be dangerous. The Crown argued that the “dumb shit” referenced by Mr. Cain may refer to the invasion in Minden. In my view, that is not a reasonable interpretation. The “dumb shit” he was referring to was a YouTube video he had been discussing with D/Sgt. Miller.

Even if he was referring to Minden, the fact that he referred to it as “dumb shit” in no way assists in determining his particular level of culpability.

(26)

Reference:

Page 111, lines 12-16

Synopsis:

Here, D/Sgt. Miller expressed to Mr. Cain that he looks at him as a human being and “not as a big bad gang banger”.

Ruling:

This passage is to be redacted, on consent.

(27)

Reference:

Page 122, lines 1-5

Synopsis:

Obviously a central issue in this case is who, of the three intruders, wielded the bat and struck Mr. Kennedy. Mr. Cain at first said he did not touch the bat, but then he said he did touch it, but only to move it to “organize things”.

D/Sgt. Miller posed to him that the only reason he said that was because he was worried about the fact the police might find his DNA on the bat. D/Sgt. Miller put that to him twice. He responded, “no”.

Mr. Cain submits that D/Sgt. Miller’s comments are effectively Crown argument and are inappropriate.

Ruling:

In my view, this passage is not prejudicial to Mr. Cain. The fact is, his answer about whether he held the bat evolved. D/Sgt. Miller’s question/suggestion about the DNA is a fair question and one the jury will have to grapple with. He denied that he gave a self-serving answer in order to cover off the possibility that his DNA would be found on the bat.

This is a critical area in terms of the live issues in the case. I see no prejudice to Mr. Cain and decline to edit the passage.

(28)

Reference:

Page 153, line 24

Synopsis:

D/Sgt. Miller asked Mr. Cain what, if anything he would like to say to Mr. Hong. He replied, amongst other things, “it doesn’t matter how big and gangster you think you are but we’re all human…”

Mr. Hong objects to the phrase “big and gangster”.

Ruling:

I do not consider the phrase significantly prejudicial to Mr. Hong because it’s simply a turn of phrase used by Mr. Cain. Still, it is a somewhat inflammatory turn of phrase. Considering, as I do, that the phrase has virtually no probative value, I order that it be redacted.

For clarity, line 24 shall be redacted in its entirety, beginning “it doesn’t matter” and ending “you are but”, such that Mr. Cain’s answer will now begin with “we’re all human…”

(29)

Reference:

Page 147, lines 10-16; lines 16-17; and lines 18-19

Synopsis:

Nearing the end of the interview, D/Sgt. Miller told Mr. Cain he didn’t feel bad for him, but told him he respected him for “manning up”.

D/Sgt. Miller went on to say, “I don’t know the kid I I didn’t know him but uh he didn’t deserve that.” Mr. Cain responded “no he didn’t” and D/Sgt. Miller added, “and and I can’t feel sorry for anybody but him and his family.”

The only portion in dispute is D/Sgt. Miller’s comment, “I don’t know the kid I I didn’t know him but uh he didn’t deserve that” and Mr. Cain’s agreement.

Ruling:

There is no probative value to this passage. The opinions of D/Sgt. Miller are irrelevant. On consent line 10 through the phrase “because his family and” at the beginning of line 16 is to be redacted, as are lines 18 and 19.

In terms of the disputed comment, I consider it to be irrelevant, to have no probative value and to be an integral part of the passage being redacted. It too should be redacted. The Crown submits that it has probative value because Mr. Cain agreed that Mr. Kennedy did not deserve to die. I do not see that as probative of any live issue in this proceeding.

CORRIGENDA

1. Paragraph [12] – in the last line, the previous wording, “the absence of contemporaneous cross-examine on such statements” has been replaced with “the absence of contemporaneous cross-examination on such statements”.

2. Paragraph 57 – in the fifth full sentence, the previous wording, “But it must be recalled that Mr. Cain admits he is guilty, at least of manslaughter” has been replaced with “But it must be recalled that Mr. Cain admits he has at least some level of culpability.”

[^1]: This trial is, in fact, a retrial. The trial originally began in February 2014. A jury was selected, the accused arraigned, and several weeks of evidence adduced. A mistrial was declared after one counsel was unable to continue due to a serious health crisis. At the original arraignment, all accused – save Mr. Guerra – offered guilty pleas to manslaughter, which pleas were not accepted by the Crown.

[^2]: Specifically, the segment from 2:22:50 to 2:24:58 of the recorded interview.

[^3]: I note that Mr. Gillard-Gatza’s position is that, for the most part, he opposes any redactions to his statement. His position is that his entire version of events should come out; that it is important (a) so as to maintain a consistent and fulsome narrative; and (b) so as to give the jury the best means by which to gauge his credibility and reliability.