ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13325/13
DATE: 20150917
CORRIGENDA: 20150928

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TIN WAI HONG, MASON GILLARD-GATZA, NATHANIEL CAIN and RAPHAEL GUERRA

Defendants

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 Nathanial Cain
David G. Bayliss for Raphael Guerra

HEARD: September 9-10, 2015

RULING ON ADMISSIBILITY OF PRIOR CONSISTENT

STATEMENT OF RAPHAEL GUERRA

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] Mr. Guerra is one of four co-accused on trial for first degree murder in the death of Ryan Kennedy. He has elected to testify in his own defence. His counsel sought to lead, as part of his evidence in chief, an audio recording (with accompanying transcript) of part of a statement made by Mr. Guerra to Detective Constable Timothy Ginn following his arrest and during transport from Whitby to Lindsay. The Crown opposed the admissibility of the statement on the basis that it is a self-serving, prior consistent statement, with no evidentiary value. After hearing almost a full day of argument, I ruled that the statement was admissible and I indicated that fulsome written reasons would follow. These are the reasons.

The Offences

[2] Ryan Kennedy was killed during a home invasion/robbery at the Minden area home of his friend, Justin McKelvey. Mr. McKelvey was a local marijuana dealer and had been marked as an easy target to steal from.

[3] Mr. Guerra drove the four accused from Scarborough to Minden on October 19, 2011. He waited on a darkened side street while the other three donned masks and let themselves into Mr. McKelvey’s house through an unlocked back door. They were armed with a baseball bat, some duct tape and a can of bear repellent. Inside the house Mr. McKelvey and Mr. Kennedy were watching sports highlights on television. Within minutes Mr. Kennedy was bludgeoned to death and Mr. McKelvey beaten. The invasion was interrupted when a car unexpectedly pulled into Mr. McKelvey’s driveway. The intruders fled with four pounds of marijuana and about $350 in cash.

Mr. Guerra’s Defence

[4] Criminal offences almost invariably have a conduct component and a state of mind component, such as knowledge or intention. The fact that Mr. Guerra aided the other defendants in the home invasion is not particularly controversial. There is no dispute that he drove the other defendants to Minden, waited down a darkened side street named Colonial Road, then drove Mr. Cain back to Toronto, following a futile attempt to locate Mr. Hong and Mr. Gillard-Gatza after they fled the crime scene.

[5] The focus of Mr. Guerra’s defence is not on the conduct component of the charged offences. Instead, his defence focuses on the state of mind component; more particularly, whether the Crown is able to establish beyond a reasonable doubt that he had a subjective foresight of death, or even that he knew he was assisting in the commission of a criminal offence.

Mr. Guerra’s Testimony

[6] Mr. Guerra testified that he did not know, when he drove the other three defendants to Minden, that they planned to commit a home invasion/robbery or any other criminal offence. He said he was misled as to the location of and purpose for the trip. According to his evidence, he understood that he was driving to Montreal.

[7] Mr. Guerra explained that he received a phone call from Mr. Cain on October 19, 2011 asking if he would be interested in driving together to Montreal that evening. Mr. Cain said he was prepared to share the cost of gas. After considering the matter for some time, and discussing it with his girlfriend, Mr. Guerra decided he would go. He expected he would drop Mr. Cain off in Montreal, then go and “do his own thing”.

[8] Mr. Guerra said that he had only obtained his G2 level driver’s license about six months prior to October 19, 2011. He said he had never driven east of Oshawa. He had never been to Montreal and relied on directions being provided by Mr. Cain as they drove. He was surprised when Mr. Cain told him they needed to pick up his friends, but they had bags when they hopped in the car, appearing to be ready for a trip too. So off they went.

[9] According Mr. Guerra, it was not until they arrived in Minden that he realized they were not going to Montreal and that he had been duped. He said he was angry. He insisted that his gas be replaced and, when that was completed, he proceeded to drop the three co-accused off on Colonial Road. He agreed to wait, when asked by Mr. Cain to do so, but told Mr. Cain to hurry up.

The Proffered Statement

[10] Mr. Guerra was arrested in the east end of Toronto on October 21, 2011 sometime between 7:40 p.m. and 8:15 p.m., by officers of the Toronto Police Service. He was conveyed to the Whitby OPP detachment. At about 10:38 p.m., Mr. Guerra was removed from the cells and turned over to Detective Constable Ginn of the City of Kawartha Lakes OPP detachment. He was transported from Toronto to Lindsay in the company of D/C Ginn and D/C Daniel Obress. D/C Obress was driving; D/C Ginn was in the back seat with Mr. Guerra.

[11] During the transport, D/C Ginn engaged Mr. Guerra in conversation which he audio-recorded. Mr. Guerra’s counsel seeks to introduce a discrete excerpt of the conversation which includes the following exchanges:

D/C GINN: When you guys came up here the other day did you come this way?

MR. GUERRA: Pardon?

D/C GINN: Hmm

MR. GUERRA: I don’t know what you’re talking about [lengthy pause] where is this?

D/C GINN: 35/115

MR. GUERRA: Is there like that the name of the town?

D/C GINN: I can’t hear you, sorry.

MR. GUERRA: That’s the name of the town, 35/115?

D/C GINN: No, this is the Highway 35 here south of Lindsay.

D/C GINN: Have you ever been to Lindsay before?

MR. GUERRA: Not yet.

D/C GINN: I’m sorry?

MR. GUERRA: Not yet.

D/C GINN: No? You never, you don’t have any friends up this way or anything?

MR. GUERRA: No.

D/C GINN: To visit?

MR. GUERRA: No.

D/C GINN: It’s cottage country up here.

MR. GUERRA: [What’s past][^1] Lindsay?

D/C GINN: Uh, Minden, Coboconk, Minden, Huntsville.

MR. GUERRA: No like major cities like Ottawa?

D/C GINN: Ottawa that’s to the east along the 401.

MR. GUERRA: How about Montreal?

D/C GINN: That’s further east. That’s in a different province but the other day on Wednesday did you come up this way?

MR. GUERRA: I don’t know what you’re talking about.

D/C GINN: Pardon?

MR. GUERRA: I don’t know what you’re talking about.

(Decision continues exactly as in the source judgment, including all numbered paragraphs, analysis, legal framework, application, conclusion, Appendix “A”, and Corrigenda.)

[^1]: The transcript of this portion of the conversation does not reflect Mr. Guerra saying anything immediately before “Lindsay”, but the audio-recording clearly reflects that he did say something. He testified that what he said was “What’s around Lindsay?” Having listened to the recording several times, however, I have concluded that what he actually said was “What’s past Lindsay?”.