SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 13325/13

DATE: 20150812

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: August 11, 2015

ENDORSEMENT

[1] On November 1, 2011, Mr. Cain gave a statement to Detective Miller relating to his participation in offences alleged to have taken place on October 19, 2011 in Minden. Prior to making his statement he had an opportunity to speak with duty counsel. Detective Miller confirmed as much during the early portion of the statement.

[2] During the week of March 16-20, 2015 I heard a lengthy pre-trial motion regarding, amongst other things, the editing of Mr. Cain’s statement to the police. One of the issues argued at that time was whether references to the fact that Mr. Cain accessed legal advice prior to making his statement on November 1, 2011 should be redacted from his statement. Mr. Cain thought that they should, while the Crown argued that they should not.

[3] The issue engaged the court’s residual discretion to exclude evidence whose probative value is exceeded by its prejudicial impact. Mr. Cain’s counsel argued that the probative value of evidence that Mr. Cain had spoken to counsel was minimal at best and that there was significant prejudice associated with the possibility that the jury would infer that Mr. Cain was more likely guilty because he had chosen to speak to a lawyer forthwith. The Crown asserted that the risk of prejudice was minimal but the fact that Mr. Cain had exercised his right to speak to counsel enhanced the reliability of his subsequent statement and thus was significantly probative.

[4] I ultimately agreed with Mr. Cain’s position and ordered the impugned passages redacted. Specifically, I said the following:

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 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.

[5] As it happens, Mr. Cain has testified and he has given evidence that he suffers from congenital heart disease. He said his disease impaired his thought processes during the commission of the offences. His evidence might also be reasonably interpreted as impugning the reliability of his November 1, 2011 statement on the basis of impaired mentation. He testified here that he does not remember much of what he said in his statement. He also said that the details he gave in his statement he does not remember happening. In fact, when he looks back on his statement, he thinks it doesn’t make much sense to him.

[6] All this is to say that the reliability of Mr. Cain’s statement to the police is clearly in issue. While it has always been in issue, it is perhaps even more so now given that the jury will now be asked to compare what Mr. Cain said at trial with what he said in his statement. Counsel to the Crown and to Mr. Hong both argue that the landscape has changed such that the court should revisit its prior ruling and amend it to permit counsel to cross-examine Mr. Cain on the fact that he spoke to duty counsel before making his statement to the police.

[7] After hearing counsel’s submissions, I ruled that my prior order would stand and I told counsel I would provide brief written reasons for my ruling. These are the reasons.

[8] I previously ruled that my order could be revisited if certain triggering events occurred. I am satisfied that the triggering events have occurred and that the issue may properly be revisited. It remains to be determined, however, by the same principles. I must balance the probative value of the evidence against its prejudicial impact.

[9] In my view, the probative value of the evidence has not changed significantly. While additional factors have developed during the course of the trial that bear on the credibility and reliability of Mr. Cain’s statement, these features (credibility and reliability) have always been live issues in the case.

[10] I remain of the view that the probative value that the impugned evidence has to the credibility and reliability of Mr. Cain’s statement is slight. I do not consider there to be a compelling correlation between the receipt of legal advice and the truthfulness and/or accuracy of any statement that follows. The premise that someone is more likely to be truthful and accurate after having received legal advice is not a sound one. The same can be said for the opposite premise – that someone is less likely to be truthful and accurate in a statement made after having received legal advice. There simply isn’t a strong correlation between the receipt of advice and the reliability of a statement.

[11] Crown counsel suggested that reliability concerns are heightened now that Mr. Cain has put the reliability of his statement in issue through his own testimony. I do not disagree with that suggestion. Crown counsel went on to submit that the jury should, in the circumstances, have before them any and all evidence that bears on the issue of reliability. Here I think the submission is too broadly stated.

[12] The basic rule of admissibility of evidence in a criminal trial was stated by LaForest J. in R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, at para. 98, as follows:

All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy.

[13] I agree with the Crown’s submission to this extent: the jury should have before them all relevant evidence bearing on the credibility and reliability of Mr. Cain’s statement, subject to the court’s residual discretion to exclude what is unduly prejudicial. In this instance, “unduly prejudicial” evidence means evidence which is more prejudicial than probative.

[14] I have indicated why I think the probative value of the evidence is quite slight. I will turn now to the nature of the prejudice associated with the evidence.

[15] When the editing application was argued, the potential prejudice associated with the evidence was said to be its tendency to support the improper inference that Mr. Cain is more likely to be guilty because he chose to speak to a lawyer at the first opportunity after his arrest.

[16] As the trial has proceeded, the cogency of that type of prejudice has waned. First, Mr. Cain has admitted participation in a home invasion/robbery and guilt, at least in a broad sense, is not in issue. Second, other prejudicial facts have emerged that arguably make the notion that Mr. Cain consulted counsel appear tame. I am thinking in particular of the fact that the jury has been made aware, by defence counsel, that the accused have been in custody since their arrests and continue to be in custody today. These factors don’t eliminate the potential for prejudice, in the form previously identified, but they arguably reduce the impact of the prejudice.

[17] The developing trial record has, however, altered the nature of the potential prejudice that may arise should evidence be introduced to the effect that Mr. Cain consulted with counsel prior to making his statement. Mr. Cain has given reasonably extensive evidence at trial about his heart condition and the way it affects him physically, and in turn, mentally. He described himself as being “fuzzy” and “confused” when inside the residence of Mr. McKelvey. He did not get into those details when he gave his statement to Detective Miller. Hearing that Mr. Cain spoke to a lawyer prior to making his statement raises many more questions than it answers. It is an invitation to the jurors to speculate about what might, or might not, have been discussed between Mr. Cain and counsel. Did he tell duty counsel about his impaired mentation during the commission of the offences? Alternatively, did he fail to tell duty counsel about his impaired mentation? What advice might have been given? Did he heed the advice? These questions cannot be put to Mr. Cain because they are privileged communications. The only way that Mr. Cain can contain any prejudice associated with such speculation is to waive his privilege. He should not be compelled, in my view, to do so.

[18] In the final analysis, in my view, the reasoning prejudice associated with the impugned evidence continues to exceed its probative value. In the result, I make no change to my earlier ruling.

Boswell J.

Date: August 12, 2015