ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13325/13

DATE: 20150715

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 Nathaniel Cain

David G. Bayliss for Raphael Guerra

HEARD: June 29, 30 and July 6, 2015

RULING ON applications for directed verdicts

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. INTRODUCTION

[1] Four men are on trial for first degree murder and attempted murder. At the end of the Crown’s case, all four argued that the evidence tendered by the Crown was insufficient to support the Crown’s assertion that a planned and deliberate murder had occurred, or that the accused are culpable for attempted murder. Mr. Guerra’s counsel further argued that the Crown’s case is not sufficient to warrant the jury’s consideration of his culpability for second degree murder either.

[2] The defence applications were argued over two and a half days. The morning after arguments were completed, I advised counsel that the applications were dismissed, save for Mr. Guerra’s argument regarding his culpability for second degree murder. I undertook to provide written reasons. These are the reasons.

[3] I will begin with a brief overview of the facts in order to put the applications into context. Additional factual references will be provided as and when necessary.

II. OVERVIEW

[4] Colonial Drive was a perfect location for a getaway driver to wait. Dark. Quiet. Little or no traffic. Less than two minutes on foot from the target house. As Raphael Guerra sat in his rented Lexus, his three travelling companions slipped on gloves, toques and face coverings. They collected their supplies: a baseball bat; bear spray; and duct tape. Then they walked around the corner onto South Lake Road which dipped and curved towards the long driveway at number 1028.

[5] Mr. Guerra texted with his girlfriend while he waited. It was after 11:00 p.m. and Minden was a long drive from Scarborough where he’d come from and where she would be waiting. “I’m going to come to your house when we’re done here” he wrote. I doubt he expected it would take long. About two minutes later he told her he had to go.

[6] The home invasion commenced as Mr. Guerra’s companions quietly let themselves in through an unlocked rear door at number 1028. Inside, the tenant, Justin McKelvey, was watching sports highlights on television with his guest, Ryan Kennedy. Accounts vary as to how long the intruders were in the house. Perhaps it was five minutes; maybe it was longer. It was long enough to leave Mr. Kennedy dead. A pathologist would later opine that he had been bludgeoned to death with a blunt, elongated instrument. The baseball bat could not be excluded as the instrument that caused death.

[7] Mr. McKelvey was being beaten when the intruders were startled by a set of headlights pulling into the driveway. They fled. Then separated. One of them – Mr. Cain – called Mr. Guerra’s cell phone. Moments later, Mr. Guerra collected Mr. Cain. They spent some considerable time and effort searching for the other two intruders – Mr. Hong and Mr. Gillard-Gatza – but ultimately, were unable to locate them. Mr. Guerra and Mr. Cain drove back to Scarborough, the car half as full as it was on the drive north.

[8] It matters not to this narrative how the four accused came to be arrested. There is no dispute that the police have the right guys. Messrs. Hong, Gillard-Gatza, and Cain were the intruders inside Mr. McKelvey’s residence. Mr. Guerra was their wheelman. All are charged with first degree murder in connection with the death of Ryan Kennedy. All are charged with attempted murder in connection with the beating of Justin McKelvey.

III. THE CROWN’S THEORY

[9] Justin McKelvey was a central witness in the Crown’s case. He testified that he hosted a small get-together at his home in Minden on the night of October 19, 2011. Three friends came over to smoke some pot, drink a little beer and watch the Leafs game on television. After the game ended, two friends left, leaving only Mr. McKelvey and Mr. Kennedy watching sports highlights.

[10] Mr. McKelvey testified that he was unexpectedly struck over the head with something hard and he was knocked out. He had been sitting on the couch in his living room but when he came to, he was on the floor. He saw his friend, Mr. Kennedy, not far from him, also on the floor, in a semi-conscious state. Mr. Kennedy was lying mostly on his stomach, but tilting a little towards his left side. His head was elevated from the floor, exposing the right side of his face. He was bleeding heavily from his mouth. His hands were duct-taped behind his back. He was moaning. One of the intruders told the others to “shut him up” and a second intruder took a heavy pellet rifle and drove the butt end into Mr. Kennedy’s head, causing a line of blood to appear. Mr. Kennedy made different, louder noises, like he was struggling to breathe. The intruder who had given the instruction to “shut him up” then took the pellet rifle from the other man, purportedly declaring, “I’ll show you how to fucking do it”, and swung it like a golf club, driving the stock of the gun into Mr. Kennedy’s face. Mr. Kennedy was silent after that; either dead or dying. The pathologist testified that his jaw was shattered bilaterally and the broken lower jawbone had pierced his left cheek.

[11] Mr. McKelvey went on to testify that the intruders appeared to be looking for money and marijuana. Mr. McKelvey was an admitted drug dealer. He sold pot to Haliburton locals in amounts generally ranging from an ounce to a pound. The intruders, he said, kept asking him, “Where is it?” Ultimately they made off with four pounds of marijuana and about $350 in cash. The whole incident happened very quickly, he said, perhaps in as little as five minutes.

[12] The Crown’s theory is that the accused travelled to Minden with a plan to steal Mr. McKelvey’s money and drugs and to kill any witnesses. During the course of the commission of the offences, both Mr. Kennedy and Mr. McKelvey were confined by means of the duct-taping of their hands behind their backs. The Crown asserts that Mr. Kennedy was murdered while forcibly confined. According to the Crown’s theory, the accused are all culpable for first degree murder, on the basis that either (1) the murder was planned and deliberate; or (2) the murder occurred in the course of a forcible confinement, which is “constructive” first degree murder according to s. 231(5)(e) of the Criminal Code, R.S.C. 1985, c. C-46.

[13] Under the Crown’s theory, each of the accused played different roles in the offences. To appreciate the Crown’s position in terms of the culpability of each of the accused, it is necessary to understand something of how the Criminal Code deals with party liability.

[14] The party liability provisions of the Code are rooted in section 21:

21. (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or,

(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[15] Party liability under s. 21(1) of the Code is relatively easy to grasp. To borrow an instruction from Justice David Watt’s Manual of Criminal Jury Instructions, 2nd Ed., (Toronto: Thomson Reuters Canada Ltd., 2015):

In Canadian criminal law, principals, co-principals, aiders and abettors of criminal offences are all equally culpable. This means that, in Canada, the distinction between those who personally commit an offence and those who aid or abet the offence is legally irrelevant. All are equally culpable in the eyes of the law.

[16] Party liability under s. 21(2) is arguably a little more difficult to comprehend. The party liability provisions of the Criminal Code are designed, amongst other things, to deter people from participating in crimes. One way they achieve that design goal is to make individuals liable for crimes that another person commits during the course of a common criminal joint venture. In other words, where a number of individuals agree with one another that they will commit a crime (the “planned crime”), if any one of the group strays from the original plan and commits a different crime (the “different crime”) while carrying out the planned crime, any other member of the group may be found guilty of the different crime committed by the person who strayed, provided the Crown can prove that he or she knew or ought to have known that it was likely that some member of the group would commit the different crime during the commission of the planned crime. The idea is to deter people from entering into agreements to commit crimes by making them culpable not only for the crimes they commit together, but also for any other reasonably foreseeable crime committed by any other member of their group.

[17] An important refinement is necessary with respect to s. 21(2) liability where the “different crime” committed is murder. A person may only be found guilty of murder through s. 21(2) participation if the Crown proves beyond a reasonable doubt that he actually knew that another member of the joint criminal venture would probably commit murder while carrying out the original common plan: see R. v. Jackson, 1993 53 (SCC), [1993] S.C.J. No 134, at para. 33. The language “ought to have known” is not operative when the charged offence is murder. In other words, objective foresight is not sufficient to convict for murder. There must be actual subjective foresight of the likelihood of death. This refinement is significant in terms of the Crown’s case against Mr. Guerra, for reasons I will explain in due course.

[18] Having made those briefest of observations about party liability, I will describe in a little more detail the specific routes to murder, both first and second degree, and attempted murder that the Crown proposes to go to the jury with in this case.

(continued exactly as in the source…)

Boswell J.

Released: July 15, 2015

[1] The test was not, of course, known as the “Shephard test” in 1938 because United States v. Shephard wasn’t to be decided for another forty years. The substance of the test was, however, the same.