CITATION: R. v. Hong, 2015 ONSC 3083

COURT FILE NO.: 13325/13

DATE: 20150514

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: May 13, 2015

RULING ON Editing of text content

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.

[1] This brief ruling relates to the admissibility of several text messages extracted by the police from phones used by Mr. Guerra and Mr. Cain.

OVERVIEW

[2] Ryan Kennedy watched his last hockey game on October 19, 2011 at the home of his friend, Justin McKelvey. What Mr. Kennedy did not know, as he watched hockey and later played video games, is that the four defendants were en route from Scarborough to Minden to rob Mr. McKelvey of drugs and money. Mr. Guerra was the wheelman. He waited in his car as the other three defendants went inside the McKelvey residence. While inside, one or more of them bludgeoned Mr. Kennedy to death. As Mr. McKelvey was being beaten, a car pulled into his driveway, prompting the intruders to flee.

[3] Identity is not a live issue in terms of the three intruders, or the wheelman. The principal live issues are:

(a) Whether anyone intended to kill Mr. Kennedy;

(b) Whether the killing, if intentional, was planned and deliberate;

(c) Whether the killing, if intentional, took place in the course of an unlawful confinement; and,

(d) In the case of Mr. Guerra, whether the Crown can establish, beyond a reasonable doubt, that he knowingly participated in a common unlawful venture of any sort.

[4] The defendants are all young men. Like many other young Canadians, they owned, or had access to, cellular telephones. At least some of them appear to have been avid users of such devices.

[5] Cell phones are a rich source of digital evidence. Evidence generated through the use of cell phones is an increasingly common feature of criminal proceedings in Canada. In this particular case, it is offered for the following purposes:

(a) To demonstrate connections between parties;

(b) To demonstrate, through limited content, the nature of the relationships between parties; and,

(c) As circumstantial evidence of the location of the defendants in the hours leading up to and at the time of the offences.

[6] Cell phones belonging to Mr. Guerra and Mr. Cain were seized by the police following their arrests. Mr. Guerra had an iPhone; Mr. Cain a Samsung. Mr. Guerra was a Rogers Wireless subscriber; Mr. Cain’s service provider was Wind Mobile. Neither of those service providers maintained records of the content of text messages sent or received by their subscribers. Nevertheless, the two phones were forensically examined by the police and their contents extracted. Those contents include a number of text messages stored by the devices.

[7] The Crown proposes to call OPP Special Constable Jeremy Dupuis to give evidence about the text content extracted from the phones of Mr. Guerra and Mr. Cain.

[8] The number of text conversations recovered, in whole or in part, by Constable Dupuis from either phone is modest. From Mr. Guerra’s iPhone, he appears to have recovered some five conversations, or partial conversations, between July 14, 2011 and October 20, 2011. Only one of those conversations is in issue. From Mr. Cain’s Samsung phone, he appears to have recovered approximately 15 text conversations, though that figure is a little soft, as I admittedly had some difficultly determining exactly how many distinct conversations there were. Suffice it to say, it is not a large number. Of those conversations, or partial conversations recovered, only two are in issue.

[9] I have attached, as Appendix “A”, the full content of the text conversations in issue.

[10] The parties have different positions about the admissibility of the content in issue. Their disputes centre around issues of relevance, probity and prejudice.

THE PARTIES’ POSITIONS

The September 20, 2011 iPhone Conversation

[11] The conversation, or partial conversation, on September 20, 2011 involves Mr. Cain asking Mr. Guerra if he is going to be available in two weeks’ time. Mr. Cain tells Mr. Guerra that he “needs” him. Nothing more is said about where or why or what might be involved. There are no follow up texts offered by the Crown in evidence that may assist in putting the impugned passage into context.

[12] Counsel to Mr. Cain and Mr. Guerra take similar positions. They argue that the passage should be ruled inadmissible. They say it invites improper speculation; that there is no way the jury can properly infer what this conversation was about in the absence of other context. The jury may speculate that it relates to the offences committed on October 19, even though it references an event in two weeks’ time. Or they may speculate that it relates to other criminal activity, in which case it is not only improper speculation, but it is also presumptively inadmissible propensity evidence.

[13] The Crown takes the position that the jury may reasonably infer from the passage in issue that Mr. Cain was asking about Mr. Guerra’s availability to assist with the offences now before the court. There was no fixed appointment for the commission of the offences and it is quite possible that the targeted date fluctuated. But in view of the fact that Mr. Guerra ultimately drove Mr. Cain and others to Minden on October 19, 2011, it would be reasonable for the jury to conclude that Mr. Cain was implicitly referring to the journey to Minden on September 20, 2011. Such an inference may lead to the conclusion that the offences were being planned as far ahead as a month before they were committed – something that is of some significance to the Crown’s case on planning and deliberation.

The September 18, 2011 Samsung Conversation

[14] Mr. Dupuis was able to extract four texts between Mr. Cain and a purported unindicted co-conspirator known only as “Nikko” that occurred between 8:22 p.m. and 8:26 p.m. on September 18, 2011. At 8:26 p.m. Mr. Cain referenced Mr. Hong in the conversation, saying “…yo chins back up here.” “Chin” was apparently a nickname for Mr. Hong.

[15] Mr. Dupuis recovered six texts sent from Mr. Cain to Mr. Hong between 8:30 p.m. and 8:49 p.m. on September 18, 2011, essentially immediately following the conversation between Mr. Cain and Nikko. In a text at 8:41 p.m. Mr. Cain referenced someone named “Nick”, who the Crown suggests was one and the same person as Nikko. Only Mr. Cain’s texts were recovered. If Mr. Hong sent any text messages as part of the string, they appear to have been lost.

[16] Mr. Cain’s lawyer, Mr. Bryant, asserts that the conversation, or partial conversation, is about a drug transaction. He says that Mr. Cain’s comment, “I need to re up tomorrow” is codified language for purchasing drugs. The nature and quantity of the drug is then indicated by the comment, “Same like last time…” and the price was then explicitly discussed.

[17] Mr. Bryant argues that, as bad character evidence, or evidence of off-indictment disreputable conduct, the conversation is presumptively inadmissible. It is necessary, as a prerequisite to admission, that the Crown establish that the probative value of the evidence exceeds its prejudicial effect. He submits that, in the context of this case, the conversation has no probative value and ought to be excluded.

[18] Mr. Strathman, on behalf of Mr. Hong, joins Mr. Bryant in his submissions.

[19] The Crown does not disagree that the conversation is about a business transaction. Though I did not hear Mr. Davidson explicitly agree that the conversation was about drugs, he did argue that the probative value of the passage is to demonstrate that Mr. Hong and Mr. Cain knew one another and that they did (drug) deals together; that obtaining drugs was the motivation for Mr. Cain to get involved in the commission of the offences before the court; and that Mr. Cain and Mr. Hong commonly knew Nikko.

[20] Mr. Davidson submits that the impugned passage is necessary to provide appropriate context for the type of relationship that Mr. Cain and Mr. Hong had; that without this content, the jury may be left with the misleading impression that their relationship was limited to videogames and betting on sports.

The October 11, 2011 Samsung Conversation

[21] In this short exchange, Mr. Cain said to Mr. Hong, “Hey buddy long time you got something to sell me”. Again, Mr. Bryant argues that the context is drug-related; that this is presumptively inadmissible propensity evidence; and that it has no probative value to the live issues in this case.

[22] Mr. Strathman again joins Mr. Bryant’s submissions.

[23] Mr. Davidson, for the Crown, takes the same position with respect to this discussion as with the September 18, 2011 exchange.

DISCUSSION

[24] I start with the most basic proposition. Evidence is receivable in a criminal trial if it is relevant, material and not subject to any exclusionary rule: R. v. Candir, 2009 ONCA 915.

[25] One exclusionary rule with application to this motion relates to propensity evidence. “Propensity evidence” is a general term used to describe a broad spectrum of evidence with a common feature: its tendency to prove that a person has a disposition to act in a certain way. It is evidence about a person’s prior conduct; evidence from which one might infer a particular character. In criminal cases, it’s almost invariably evidence about bad character. In relation to this application, it is evidence that Mr. Cain and Mr. Hong were involved in the sale and purchase of illegal drugs.

[26] In Canada, propensity evidence is presumptively inadmissible at the behest of the Crown: see R. v. Handy, 2002 SCC 56. The presumptive rule is based on policy considerations. In particular, that such evidence may “capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value.” (R. v. Handy, para. 37).

[27] The prejudice arising from propensity evidence may be characterized as moral prejudice and/or reasoning prejudice. It is unnecessary, in the context of this application to fully explore those concepts. Suffice it to say that the ultimate concern is that no one should be tried on the basis of their propensities or proclivities. A criminal trial should be focussed on whether the accused committed the prohibited act(s) in issue, not whether he or she was or is a bad person generally deserving of punishment.

[28] Having said all of that, the exclusionary rule is presumptive but not absolute. Propensity evidence may be adduced by the Crown where the court is satisfied that its probative value to the live issues in the case exceeds its prejudicial effect: R. v. Handy, as above, at para. 55.

[29] Even if the evidence in issue is not properly considered propensity in nature, the court still retains a residual discretion to exclude evidence whose probative value is exceeded by its prejudicial effect, either to an accused or to the trial process itself: see R. v. Spackman, 2012 ONCA 905, at para. 115. Ultimately, with respect to each of the impugned passages, the court is asked to balance probity and prejudice. There may be a dispute as to who bears the onus to establish in which direction the balance tips, in relation to any given passage, but in my view nothing turns on the issue of onus in this particular application.

[30] It is my view that the September 20, 2011 excerpt from the iPhone should be excluded, but that the September 18 and October 11, 2011 excerpts from the Samsung phone should not be excluded from evidence. I say so for the following reasons.

[31] Interpreting the meaning of language used in a conversation, or partial conversation, requires context. In the absence of sufficient context, meaning may be lost or misconstrued. Interpretation, absent context, devolves into nothing more than speculation: see R. v. Ferris, 1994 ABCA 20, [1994] A.J. No. 19, affirmed 1994 SCC 31, [1994] 3 S.C.R. 756.

[32] With respect to the September 20, 2011 discussion between Mr. Cain and Mr. Guerra, there is, in my view, insufficient context to the conversation, or any conversations occurring before or after it, to relate it to the offences that occurred on October 19, 2011:

[33] The Crown’s intention is to invite the jury to infer, retrospectantly, that because Mr. Guerra drove Mr. Cain to Minden on October 19, 2011 that that must have been what they were talking about on September 20, 1011.

[34] There is nothing inherently improper about drawing inferences retrospectantly. Retrospectant use of circumstantial evidence invokes reasoning that the subsequent occurrence of an act justifies an inference that a particular state of affairs existed in the past at the material time: see Watt’s Manual of Criminal Evidence (2014) at §9.01. But in this instance, the drawing of the inference sought requires a good deal of speculation about what might have happened to alter the date initially being discussed by Mr. Cain.

[35] An inference must logically and reasonably arise from an established fact. The established fact in this instance is that Mr. Guerra drove Mr. Cain (and others) to Minden on October 19, 2011. The conversation on September 20 was about Mr. Cain needing Mr. Guerra for some reason in two weeks’ time. It is possible, of course, that Mr. Cain had in mind the journey to Minden. But without additional context, my view is that one cannot logically and reasonably infer that the September 20 conversation was about Minden simply because Mr. Guerra drove Mr. Cain to Minden some four weeks later.

[36] Absent any additional context, my view is that the passage has no probative value because it is speculative. Its prejudice to Mr. Cain and Mr. Guerra is obvious. In the result, I rule it inadmissible.

[37] I come to a different conclusion about the passages extracted from Mr. Cain’s Samsung phone and which relate to discussions between him and Mr. Hong purportedly on September 18 and October 11, 2011.

[38] I am accepting for the purposes of this ruling that the impugned passages reasonably relate to drug transactions and that, as such, they involve bad character evidence. Having said that, I consider the prejudice arising from such bad character evidence to be miniscule in the circumstances of this case. I say that because there is no dispute that Mr. Hong and Mr. Cain travelled to Minden together, and with the other defendants, on the night of October 19, 2011. There is no dispute that they were two of the three masked intruders into Mr. McKelvey’s residence. There is also no dispute that they were there to rob Mr. McKelvey of drugs and money.

[39] In terms of the case against Mr. Hong, the text messages recovered from Mr. Cain’s phone are no different than any other out-of-court utterance. They are admissible against their maker only. None of the texts on September 18 or October 11 initiated from Mr. Hong. None are admissible against him. The jury will be provided with a limiting instruction in that regard.

[40] In terms of Mr. Cain, the texts provide significant context about the nature of his relationship with Mr. Hong in the time period prior to the offences. The connection between the parties and the nature of their relationships will not, on their own, be determinative of any issue in this case. But this evidence is nevertheless a relevant and not unimportant part of the Crown’s narrative. I consider these texts relevant and at least modestly probative. Against the extremely limited prejudice arising from them, I find that the balance favours admission. Again, a limiting instruction about propensity evidence can, and will, be provided to the jury.

CONCLUSION

[41] In the result, I conclude that the September 20, 2011 text conversation – or partial conversation – between Mr. Guerra and Mr. Cain is not admissible and should be redacted from any summary to be introduced through Mr. Dupuis or any other witness. The September 18 and October 20, 2011 conversations – or partial conversations – are, in my view admissible.

Boswell J.

Released: May 13, 2015

Appendix “A”

Content of Disputed Text Conversations

Mr. Guerra’s iPhone

September 20, 2011 (between the phones of Mr. Cain and Mr. Guerra)

Cain: Yo it’s squints you like in two weeks from now you going to be available?

Guerra: yah

Cain: yah for sure I need you

Guerra: Ka

Mr. Cain’s Samsung

September 18, 2011 (between the phones of Mr. Cain and Mr. Hong)

Cain: I need to re up tomorrow. I’ll call you so you don’t forget

Cain: Same like last time but on point

Cain: Id say the right pick

Cain: Same price still

Cain: 750 you told me but I gave nick 8 was that his price. All I know I gave nick a whole bunch of money and I wasn’t sure

Cain: Alright remember to bring extra and don’t ask me for what lol

October 11, 2011 (between the phones of Mr. Cain and Mr. Hong)

Cain: Hey buddy long time you got something to sell me

Cain: You still out of town