COURT FILE NO.: 13325/13

DATE: 20150831

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’Neill, 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 31, 2015

ENDORSEMENT re revisiting the editing of Nathaniel Cain’s statement to Detective Miller

Background:

[1] Mr. Cain and his three co-accused are on trial for murder and attempted murder. On October 19, 2011, the four accused travelled together from Scarborough to Minden. At least three of the four intended to rob a local drug dealer of his stash of marijuana and whatever money he had. Whether any of the accused ever intended to kill anybody is a live issue in this case.

[2] The home invasion and robbery that ensued left one young man bludgeoned to death and another beaten.

[3] Mr. Guerra was the wheelman. There is no dispute that he drove the other three accused to Minden. There is no dispute that he was enlisted to do so by Mr. Cain. There is also no dispute that he waited in his car while the other three went inside the home of the local drug dealer, where the killing occurred. There is a significant dispute about whether he had the requisite state of mind for murder, or attempted murder, or any included offences.

[4] The Crown’s case against Mr. Guerra turns on whether they can establish that he had the state of mind required for culpable homicide – whether murder or manslaughter. At the very least, the Crown must establish two things beyond a reasonable doubt: (1) that Mr. Guerra knew that one or more of the individuals he drove to Minden intended to commit an offence; and (2) that Mr. Guerra intentionally assisted that person to do so.

The Editing Application:

[5] Mr. Cain and Mr. Gillard-Gatza both made statements to the police following their arrests. Their statements were the subject of pre-trial editing applications. I released a ruling on editing dated April 20, 2015.

[6] One passage that Mr. Guerra sought to redact from Mr. Cain’s statement related to a phone call Mr. Cain said he placed to Mr. Guerra, during which he purportedly said to Mr. Guerra:

…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… [the “Utterance”]

[7] Mr. Guerra objected to this passage on the basis that it is inadmissible against him yet attributes to him a state of mind, to wit, a willingness to participate in “what’s going down” for a half-share in Mr. Cain’s stake. The prejudice to Mr. Guerra is obvious. I found that the prejudice exceeded the probative value of the evidence. I concluded probity was slight, given that the evidence was unnecessary for the narrative of the case and not particularly helpful in terms of the live issues involving Mr. Cain.

Mr. Cain’s Cross-Examination:

[8] Mr. Cain has been testifying now for seven days. The Crown has been cross-examining him for more than four of those seven days. The Crown’s cross-examination commenced late in the day on August 12, 2015, following the completion of cross-examination by Mr. Bayliss on behalf of Mr. Guerra. The Crown’s cross-examination was interrupted on August 14 by a Mohan voir dire that was required in relation to an expert witness to be tendered by Mr. Cain. It continued on August 17, but was interrupted on August 18 and 19 due to an illness experienced by one of the defendants. It continued on August 20 and 21, then was interrupted for a week given a conflict in the schedule of Crown counsel.

[9] Crown counsel indicates that he requires one further day to complete his cross-examination of Mr. Cain. He expected to do so today, but the court was unable to hear evidence because of the absence of a juror.

[10] Late last evening, Crown counsel advised defence counsel that he was applying to revisit the editing ruling. In particular, he now wishes to cross-examine Mr. Cain about the Utterance. He submits that questions posed to Mr. Cain by Mr. Guerra’s counsel, Mr. Bayliss, open the door to cross-examination on the redacted Utterance.

[11] The following exchange during Mr. Bayliss’ cross-examination of Mr. Mr. Cain is particularly pertinent:

MR. BAYLISS: It’s pretty unlikely Mr. Guerra was going to agree to go and commit a robbery with you isn’t it?

MR. CAIN: Yes it is.

MR. BAYLISS: And it’s pretty unlikely that you would suggest to him or tell him that that’s the reason you wanted a ride isn’t it?

MR. CAIN: Yes it is.

MR. BAYLISS: Because he probably would have said no wouldn’t he, if you told him that?

MR. CAIN: Most likely.

MR. BAYLISS: So you told him something else didn’t you?

MR. CAIN: Yes I did.

MR. BAYLISS: What did you tell him?

MR. CAIN: I can’t remember what I said but I got the ride.

MR. BAYLISS: But you misled him about the purpose of the ride, didn’t you?

MR. CAIN: Yes I did.

MR. BAYLISS: Did you tell him that it was a trip to Montreal that was contemplated?

MR. CAIN: I don’t…I can’t really give details, I just told him we needed a ride out of town, somewhere I get, somewhere like that.

The Application:

[12] The Crown’s application specifically asks the court to revisit the editing ruling of April 20, 2015 to permit the Crown to cross-examination Mr. Cain on the Utterance.

[13] No formal application record was prepared and served. Crown counsel advised defence counsel by email at just before 11:00 p.m. last evening of his intention to raise the issue with the court today. The Crown hastily put together a brief written application this morning and provided it to the court. The application is four pages in length and briefly sets out the Crown’s request and position.

The Parties’ Positions:

[14] The Crown submits that the court may revisit any pre-trial ruling where there has been a material change in circumstances. The Crown argues that the cross-examination of Mr. Cain by Mr. Bayliss constitutes a material change. In particular, instead of relying on the redacted statement to shield him from prejudicial evidence, Mr. Guerra (through his counsel) has suggested an entirely different scenario to Mr. Cain and Mr. Cain has agreed with it. Specifically, that he misled Mr. Guerra about why he needed a ride on October 19, 2011.

[15] The Crown argues that Mr. Guerra cannot “have it both ways”. He cannot ask that the Utterance be kept from the jury, then lead evidence through Mr. Cain that is entirely contradictory to the content of the Utterance.

[16] The editing, the Crown submits, was done in furtherance of trial fairness. Now, trial fairness concerns dictate that the Crown be permitted to cross-examine on the redacted Utterance. If cross-examination is not permitted on the Utterance, the Crown fears that the jury will be left with a distorted picture of what Mr. Cain has had to say about the details he gave Mr. Guerra about the drive to Minden.

[17] Ultimately, of course, the court must engage in the weighing of probative value versus prejudicial effect. The Crown asserts that the balance has now shifted in favour of admission. Probity is now significantly increased, in the Crown’s submissions, in three areas:

(i) The general assessment of Mr. Cain’s credibility. The Utterance now appears to be a prior inconsistent statement that may be of significance to the jury in assessing Mr. Cain’s overall credibility;

(ii) As evidence that Mr. Cain was able to recall, at November 1, 2011, significant details of the offences and events leading up to the offences. The Crown suggests that this evidence undermines Mr. Cain’s trial testimony about his lack of memory and his hypoxia-induced mental impairments; and,

(iii) The testimony of Mr. Cain may turn out to be confirmatory of evidence to come from Mr. Guerra. In other words, it is anticipated that Mr. Guerra will testify that he was misled by Mr. Cain about the purpose for the drive. If he does, then Mr. Cain’s evidence may be seen to confirm – and thereby bolster – Mr. Guerra’s testimony. In the Crown’s submission, the jury should have a full appreciation of everything that Mr. Cain has said about his conversations with Mr. Guerra and the reasons provided by Mr. Cain as to why a driver was needed.

[18] While some prejudice to both Mr. Cain and Mr. Guerra is conceded, the Crown argues that the prejudice is readily capable of being attenuated through a timely and clear jury instruction.

[19] Mr. Bayliss argues that the court should summarily dismiss the Crown’s application under Rule 34 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (SI/2012-7). He submitted that (1) the application fails, substantially, to comply with the Rules; (2) it was late served; (3) the timing of its delivery risks prejudicing the other defendants, particularly Mr. Guerra, who are not able to go back and cross-examination Mr. Cain on the Utterance; (4) the merits of the application are weak; and (5) the Crown has failed to provide a reasonable explanation for why the application is so non-compliant with the Rules.

[20] In terms of the merits of the application, Mr. Bayliss argues that the prejudice to Mr. Guerra, first identified at the time of the editing application, remains. If anything, it is more acute given the timing of the request to revisit that ruling. In the meantime, the probative value of the Utterance remains tied to Mr. Cain’s credibility. The jury, in his submission, already has a generous evidentiary basis on which to make decisions about Mr. Cain’s credibility.

[21] Mr. Bryant argues, on behalf of Mr. Cain, that there will be significant prejudice to Mr. Cain – indeed to all the defendants – should the Utterance be revealed to the jury now. He expressed the concern that the jury may wrongly conclude that one or more of the defendants have tried to keep important information from them. It will be difficult, in his submission, to explain to the jury why this passage from Mr. Cain’s statement was kept from them. In order to avoid all of that prejudice falling at the feet of Mr. Cain, Mr. Bryant indicates that he would be compelled to seek leave, in re-examination, to question Mr. Cain about who requested the edit. While such a question may alleviate some of the prejudice to Mr. Cain, it will surely cause a spike in prejudice to Mr. Guerra.

[22] Mr. Strathman echoes Mr. Bryant’s concerns about the timing of disclosure of the edited passage from Mr. Cain’s statement and how that might reflect badly on the defendants generally; as though they were attempting to hide significant evidence from the jury.

[23] Mr. Lyon elected not to make submissions, but joins his colleagues on the defence side in opposing the Crown’s application.

Discussion:

A. Preliminary Issues

[24] There are two preliminary issues raised by counsel in connection with the Crown’s application. First, whether the material change threshold has been met, permitting the court to revisit the editing ruling made earlier. Second, whether the application ought to be summarily dismissed for non-compliance with the Rules.

Material Change

[25] The law on the material change issue is straightforward and well-settled. Where a trial judge has ruled on an evidentiary issue during the course of a trial, he or she may reopen and reconsider the earlier ruling if there has been a material change in circumstances: R. v. Li, 2012 ONCA 291; R. v. La (Appeal by Vu), [1997] 2 S.C.R. No. 30.

[26] The concept of a “material change” was the subject of judicial treatment in the Supreme Court’s decision in Willick v. Willick, 1994 SCC 28, [1994] 3 S.C.R. 670. Sopinka J., writing for the majority, described a material change in circumstances as “a change, such that, if known at the time, would likely have resulted in different terms.”

[27] In the context of the editing ruling, which was determined on the basis of a balancing of probity and prejudice, a “material change” must be one that likely would have altered the balance, or at least have had an impact on the balance sufficient to warrant re-examination: see for instance R. v. Sessions, [1996] A.J No. 1055 (Alta. C.A.).

[28] I am satisfied that the material change threshold has been met in this instance.

[29] In my prior ruling, I held that the Utterance had little probative value to the live issues with respect to Mr. Cain, yet was highly prejudicial to Mr. Guerra given that it is potentially strong circumstantial evidence of Mr. Guerra’s knowledge about the criminal intent of his passengers.

[30] During cross-examination of Mr. Cain, Mr. Bayliss suggested to him that he misled Mr. Guerra about the reason why he needed a drive. Mr. Cain agreed. This is arguably contradictory to the pith and substance of the Utterance, where he appears to have indicated that he told Mr. Guerra “this is what’s going down”. It is open to the jury to interpret the Utterance as contradictory and as a prior inconsistent statement. The Utterance may now have a heightened role to play in the jury’s assessment of Mr. Cain’s general credibility. In addition, it may lend confirmatory support to the anticipated evidence of Mr. Guerra.

[31] In the result, the Crown has satisfied me that a revisiting is justified.

Non-Compliance with the Rules

[32] There is no doubt that the Crown’s application was not compliant with the Rules in terms of content and notice. The court’s jurisdiction to dismiss an application for non-compliance, apart from any inherent jurisdiction the court may have, is found in Rule 34.03, which provides in part as follows:

34.03 Where an applicant has failed to comply with the rules governing an application, the application shall not be heard unless the presiding judge grants leave, after taking into account all the circumstances of the case, including but not limited to:

(a) the nature of the applicant’s non-compliance with these rules;

(b) the right of the applicant to raise issues, including issues relating to the admissibility of evidence and to have those issues determined on their merits;

(c) the right of other parties to have a reasonable opportunity to respond to any issues raised by an applicant;

(d) the need for an expeditious determination of pre-trial applications and the orderly conduct of trial proceedings;

(e) the history of the pre-trial applications and the proceedings;

(f) any notice given to other parties about the issues raised in the pre-trial applications;

(g) the apparent merits of the application as reflected in any materials filed and any submissions made in the proceeding;

(h) any prejudice to any other party in the proceeding;

(i) the nature of the issues raised and the extent of their impact on the course of the trial or other proceeding;

(j) any explanation advanced for failure to comply with these rules; and,

(k) any other factors the judge considers relevant to his or her determination.

[33] The court must also take into account the jurisdiction to excuse non-compliance where in the interests of justice to do so (Rule 2.01) as well as the fundamental purposes of the Rules, set out in Rule 1.04. Specifically, the Rules are intended to promote the just determination of every criminal proceeding. They are to be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.

[34] I am prepared to hear the application, and dispose of it on its merits, for reasons that include the following. First, I am of the view – and the Rules and the cases decided under the Rules support this view – that wherever possible, issues should be determined on their merits. Second, I am of the view that the issues raised in the Crown’s application can be determined on their merits today, notwithstanding the short-service of a non-compliant notice of application. My view is informed by (1) the relative lack of complexity of the issues; and (2) the fact that we have a down day today, given that one of the jurors was unable to attend. Counsel were afforded a break to collect their thoughts and consider their arguments, then submissions were made that, in my view, were reasonably considered and articulated. In other words, there was minimal, if any, prejudice arising from the non-compliance.

B. The Merits

[35] The determination of the Crown’s application comes down, again, to a balancing of probity and prejudicial effect.

[36] I agree with the Crown’s submission that the probative value of the Utterance has increased. Obviously when the editing application was first heard, as a pre-trial motion, Mr. Cain had not testified. Now he has, and he has given evidence that appears to contradict what he told Detective Miller about the information he provided Mr. Guerra regarding the plan on the night of October 19, 2011. Should the jury conclude that the Utterance is a prior inconsistent statement, they may consider it significant in terms of their assessment of Mr. Cain’s overall credibility. Certainly the defence he has advanced is very heavily dependent on his credibility.

[37] Moreover, the evidence given by Mr. Cain during Mr. Bayliss’ cross-examination – to the effect that he intentionally misled Mr. Guerra for fear that he would not get a drive if Mr. Guerra knew the truth – is likely to be consistent with evidence that is reasonably anticipated from Mr. Guerra. In other words, this testimony, adduced by Mr. Bayliss during cross-examination of an arguably not entirely adverse witness, may be essentially a down payment towards Mr. Guerra’s credibility account. Mr. Guerra is expected to testify that he did not know of the criminal intentions of his co-accused as he drove them to Minden. If the jury accepts Mr. Cain’s evidence that he misled Mr. Guerra, then obviously such evidence would confirm and support any similar evidence given by Mr. Guerra.

[38] I furthermore accept that if the Utterance remains redacted and inadmissible, the jury will not have the full picture of Mr. Cain’s evidence regarding what he told, or did not tell, Mr. Guerra about the purpose of the drive to Minden. A trial has, at its core, a truth-seeking function. Excluding evidence that tends to distort that truth-seeking function is generally to be avoided. That said, applications like this one must be viewed contextually. They are made the more complex when, like here, the interests of four co-accused must be balanced.

[39] I find that, like probity, the prejudicial effect of the Utterance has also increased significantly since the time of the editing application.

[40] The same reasons that gave rise to concerns about prejudice at the time of the pre-trial motion, are applicable now. In particular, the central issue in the Crown’s case against Mr. Guerra, as I have said, is the matter of his state of mind as he drove to Minden. Proof of the actus reus of the charged offences is relatively straightforward. There is no serious question that Mr. Guerra drove the other three accused to Minden and waited down a darkened rural side street to pick them up for the return trip to Scarborough. The case against Mr. Guerra turns on whether the Crown can establish his mens rea.

[41] It is axiomatic that the Crown ought not to be able to establish Mr. Guerra’s mens rea on the basis of evidence that is inadmissible against him. Simply put, that would not be fair. A fundamentally fair trial is a constitutional imperative. The Utterance was made in Mr. Cain’s out-of-court statement to Detective Miller. It is admissible in evidence against Mr. Cain but not against Mr. Guerra.

[42] The Utterance remains inadmissible in evidence against Mr. Guerra. It remains evidence that goes to the core of the Crown’s case against him. That prejudice has not changed.

[43] Now, however, there are additional problems, which include:

(1) The timing of the disclosure of the Utterance. There is a risk that the jury will wonder why an utterance of apparent significance like that was kept from them in the first place. An instruction could be given to the jury, of course, explaining what happened, but there will still be a risk that one or more of the jurors may reason improperly that the defendants are more likely to be guilty because they have attempted to hide important evidence from the jury; and,

(2) All defence counsel, and most notably Mr. Bayliss, have completed their cross-examinations. None of the defence counsel raised the Utterance during cross-examination (or in Mr. Bryant’s case examination-in-chief) because they proceeded on the understanding that it was redacted.

[44] In the final analysis, the Utterance is admissible only in the case against Mr. Cain. And its probative value really relates to Mr. Cain’s credibility; now more so than ever and in different aspects to be sure, but still it goes to the issue of the extent to which the jury will elect to believe and rely upon Mr. Cain’s evidence.

[45] In my view, having regard to the record to date, there is an ample evidentiary basis upon which the jury can make a reasonable assessment about Mr. Cain’s credibility. I appreciate that the jury may choose to believe and rely upon some, all or none of Mr. Cain’s evidence – meaning, for instance, that they could generally disbelieve him but still find him to be credible on the issue of what he told Mr. Guerra. Or his evidence could still raise a reasonable doubt about Mr. Guerra’s mens rea.

[46] Having said that, I remain of the view that the probative value of the Utterance, in the context of this trial record, at this particular time in the trial, remains overborne by the prejudicial impact of the Utterance on Mr. Guerra’s fair trial right. The prejudice to the other defendants could likely be cured by a timely jury instruction, but in my view, the prejudice to Mr. Guerra can not.

[47] In the result, while I am prepared to revisit and reconsider the editing ruling with respect to the Utterance, I am not prepared to change it.

Boswell J.

Date: August 31, 2015