COURT FILE NO.: 13325/13

DATE: 20150723

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Tin Wai Hong, Mason Gillard-Gatza, Nathaniel Cain, and Raphael Guerra

BEFORE: The Honourable Mr. Justice C. Boswell

COUNSEL:
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 15, 2015

ENDORSEMENT re good faith basis issue

[1] The four co-accused are on trial for murder and attempted murder. The Crown’s case is complete, as are the cases of Mr. Hong and Mr. Gillard-Gatza. Mr. Gillard-Gatza elected to testify in his own defence. When his evidence was completed, Mr. Guerra’s counsel expressed a concern that the Crown had asked questions of Mr. Gillard-Gatza in a number of areas that the Crown lacked a good faith basis to ask. Counsel asked that the court take steps to remediate what he views as an accumulating prejudice against the accused persons in this trial.

[2] The alleged offences in this case arose from a home invasion that took place late one night in October 2011. Three masked males entered a residence in Minden, Ontario, where they stole four pounds of marijuana and about $350. They killed one of the occupants of the home and they beat the other. The offences were interrupted when someone unexpectedly pulled into the driveway of the residence. The invaders were startled and fled.

[3] The concerns raised by Mr. Guerra’s counsel were somewhat broadly stated, in that there were a number of areas, he said, where the Crown had asked questions without having a good faith basis to do so. That said, he did provide two concrete examples for the court to consider:

(i) A dark hoodie was found by the police hanging from a tree branch at the end of a dark rural road not far from the location of the subject residence. Mr. Gillard-Gatza and Mr. Hong had fled down that road and tossed off some of their clothing along the way. The Crown suggested to Mr. Gillard-Gatza that the hoodie belonged to Mr. Hong, but that Mr. Gillard-Gatza had been wearing it during the commission of the offences. Defence counsel argued that not only had Mr. Gillard-Gatza denied wearing the hoodie, but Mr. Hong could be seen on the video-surveillance camera of a nearby gas station wearing a dark hoodie (similar to the one found by the police) only minutes before the home invasion commenced; and,

(ii) The Crown suggested to Mr. Gillard-Gatza that Mr. Cain struck Justin McKelvey (the surviving victim) across the back with a small plastic oar, causing a narrow “train track” injury to Mr. McKelvey’s back. Mr. Guerra’s counsel argued that this was an improper question because the Crown’s pathologist had already opined that the plastic oar did not have enough weight to cause such an injury.

[4] Defence counsel essentially submitted that the Crown’s questions lacked a good faith foundation and were instead based on speculative theories that were inconsistent with the established evidentiary record.

[5] The Supreme Court addressed the issue of good faith cross-examination in R. v. Lyttle, 2004 SCC 5. After reflecting on the importance of cross-examination to the truth-finding function of a trial, Justices Major and Fish, who co-wrote the decision, held that “a question can be put to a witness in cross-examination regarding matters that need not be proved independently, provided that counsel has a good faith basis for putting the question.” The concept of a “good faith basis” was described as follows (at para. 48):

In this context, a “good faith basis” is a function of the information available to the cross-examiner, his or her belief in its likely accuracy, and the purpose for which it is used. Information falling short of admissible evidence may be put to the witness. In fact, the information may be incomplete or uncertain, provided the cross-examiner does not put suggestions to the witness recklessly or that he or she knows to be false. The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition. The purpose of the question must be consistent with the lawyer’s role as an officer of the court; to suggest what counsel genuinely thinks possible on known facts or reasonable assumptions is in our view permissible; to assert or to imply in a manner that is calculated to mislead is in our view improper and prohibited.

[6] The Crown responded to the concerns raised by defence counsel by describing the components of his good faith basis for putting the impugned suggestions to Mr. Gillard-Gatza. In particular:

(i) Mr. Gillard-Gatza gave evidence that Mr. Hong provided him with a hoodie to wear on the night of the offences. At the time of his arrest, Mr. Gillard-Gatza was not wearing a hoodie. In other words, if he’d been wearing a hoodie at the time of the offences, he’d discarded it. A hoodie was found in close proximity to the location that a face covering and a toque worn by Mr. Gillard-Gatza during the commission of the offences were found. Only one hoodie was found by the police in their search of the area surrounding the location of the home invasion. Mr. Hong was not wearing a hoodie at the time of his arrest, though he was wearing a dark jacket. It is conceivable that Mr. Hong removed his hoodie after leaving the gas station and gave it to Mr. Gillard-Gatza to wear as they were readying themselves to enter the subject residence. I am satisfied, in the circumstances, that there was an ample basis for the Crown to make the impugned suggestion, based on the strength of reasonable inference, experience or intuition; and,

(ii) Mr. McKelvey had a number of train track injuries across his back that are well-documented. Mr. Gillard-Gatza testified that he only struck Mr. McKelvey across the back with a bat two or three times - not enough to account for all the train track abrasions. Several large portions of the broken oar were located near the area where Mr. Gillard-Gatza said that Mr. McKelvey was struck, and where Mr. McKelvey similarly said he was struck. The train track injury identified by the Crown was narrower than some of the others. Again, I am satisfied that there was an ample basis for Crown counsel to make the impugned suggestion, based on the strength of reasonable inference, experience or intuition.

[7] In the result, I am not persuaded that Crown counsel has asked questions of Mr. Gillard-Gatza that he did not have a good faith foundation for. As such, no remedial steps need be taken.

Boswell J.

Date: July 23, 2015