ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13325/13

DATE: 20151030

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 Nathaniel Cain
David G. Bayliss for Raphael Guerra

HEARD: October 6 - 29, 2015

RULING ON various pre-charge issues

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] The four accused face one count each of murder and attempted murder, arising from a home invasion/robbery that occurred in Minden, Ontario on October 19, 2011. The home invasion was an alleged drug rip-off. It is undisputed that the four accused travelled together from Scarborough to Minden, that all but Mr. Guerra intruded into the home of Justin McKelvey, and that the invasion left Justin McKelvey beaten and his friend, Ryan Kennedy, dead.

[2] The evidentiary portion of the trial began on April 14, 2015. It concluded on October 6, 2015. Pre-charge conference discussions began immediately following the completion of the evidence and continued over 12 additional days between October 13 and 29, 2015.

[3] During the course of the pre-charge conference and the review of the draft jury charge, counsel offered suggestions, made requests, raised objections, and expressed concerns that, all told, numbered literally in the hundreds. The majority of issues simply required tweaking the language of the draft charge. Inevitably, scores of decisions had to be made regarding changes suggested by counsel, ranging from minor to major. The overwhelming majority are not the sort of decisions that require formal rulings and/or supporting reasons. They are ultimately manifested in revisions made to the charge and circulated amongst counsel.

[4] On the other hand, there were a discrete number of issues that do require more formal rulings. They are:

(a) The defence request to remove planning and deliberation from the jury’s consideration as a route to first degree murder;

(b) Removing the alternate intent for murder, set out in s. 229(a)(ii) of the Criminal Code, from the jury’s consideration in the context of planning and deliberation;

(c) The instruction to be given regarding constructive first degree murder and the predicate offence of forcible confinement. In particular whether the instruction should include requirements that the murder occur after the forcible confinement and that the murder must occur in the context of the exploitation of a position of dominance;

(d) Whether the jury should be instructed that wilful blindness is a means by which the Crown may prove Mr. Guerra’s knowledge of the intentions of his co-accused;

(e) Eliminating, or alternatively, refining the usual Thatcher instruction insofar as it relates to alternate routes to first degree murder;

(f) Whether the August 22, 2015 Walk Test records of the University Hospital Network relating to Mr. Cain should be redacted to remove the words “severe hypoxia” from the section marked “physician interpretation”; and,

(g) Whether transcripts of audio and/or video recorded statements should accompany the jury into the jury room as deliberation aids.

[5] The last four issues can be disposed of relatively quickly and with brief reasons. The balance of the issues will require more fulsome treatment. Time pressures mandate that I provide summary rulings of these issues, with full written reasons to follow. Accordingly, what follows are my reasons for the last four enumerated issues, together with a brief indication of my rulings on the other issues, with reasons to follow.

Transcripts in the Jury Room

[6] A number of audio and video recorded statements were entered into the evidentiary record, including:

(a) Mr. Gillard-Gatza’s statement to D/C Murray on October 20, 2011;

(b) Mr. Hong’s statement to D/C Murray on October 20, 2011;

(c) Mr. Cain’s statement to Detective Miller on November 1, 2011; and,

(d) Excerpts from Mr. Guerra’s statement to D/C Ginn, audio recorded during transport from Whitby to Lindsay.

[7] A copy of the excerpted portion of Mr. Guerra’s statement has already been marked a numbered exhibit in the trial. It will, as a matter of course, go to the jury room. Counsel are agreed that copies of the transcripts of Mr. Gillard-Gatza’s and Mr. Cain’s statements (as edited) should go to the jury room as well. Mr. Strathman asks that the transcript of Mr. Hong’s statement not go to the jury room.

[8] I make the following observations:

(a) There is no issue about the accuracy or reliabilty of the transcripts in issue;

(b) The transcripts were provided to the jurors to follow along as statements were played in court;

(c) The jurors have been instructed – and will again be instructed – that the recordings are the evidence and the transcripts are merely an aid. I have great faith that they will understand and follow those instructions;

(d) This has been a seven month trial. The jury has heard a great deal of evidence. Fundamentally, the court has an obligation to provide all reasonable assistance to jurors to enable them to perform their function fairly and effectively: R v. Pleich, [1980] O.J. No. 1233. Transcripts would, in my view, be of great assistance to the jury in efficiently determining what parts of the recordings they wish to listen to again. As the Court of Appeal held in R. v. Rowbotham, 1988 147 (ON CA), [1988] O.J. No. 271, “to deprive the jury in all situations of the transcript and to require them to listen repeatedly themselves to all the tapes at the conlusion of a lengthy trial would be to adopt an unrealistic approach and to impose unnecessary burdens on the jury.”

[9] There are very compelling reasons, in my view, to accede to counsel’s joint request that transcripts be provided to the jury.

[10] The one hold-out is Mr. Strathman. He opposes the provision of a transcript of Mr. Hong’s statement. That statement was only about 45 minutes long. It consists primarily of exculpatory utterances mixed in with assertions of the right to silence. The exculpatory utterances include obvious lies.

[11] Mr. Strathman argues that the statement is no longer relevant because Mr. Hong concedes he was inside the McKelvey residence. The probative value of the statement relates to its tendency, as post-offence conduct, to support an inference that Mr. Hong lied to the police to distance himself from the McKelvey residence and the offences. In other words, it is circumstantial evidence of identification. Its probative value is reduced to nil in the face of a concession that Mr. Hong was indeed inside the McKelvey residence when the offences occurred.

[12] Mr. Hong has never formally conceded his participation in the offences. He has left the Crown to prove his participation to the reasonable doubt standard. His counsel indicates that he will not be going to the jury with the assertion that Mr. Hong was not present during the commission of the offences. In the face of counsel’s representations, which are consistent with the manner in which he has conducted Mr. Hong’s defence, I will instruct the jury that Mr. Hong’s statement to the police goes only to identity, which is no longer an issue. There being no probative value to the content of the statement, I agree with Mr. Strathman’s submission that the jury will not require a transcript of it.

[13] In the result, the jury will be provided with the transcripts of all recorded statements, save the transcript of Mr. Hong’s statement.

The Walk Test Records

[14] Mr. Cain has congenital heart disease. He has tendered evidence that, due to his disease, he suffers from exercise-induced hypoxemia, which is a condition of low oxygen saturation in the blood. It is unnecessary to explore, for the purposes of these reasons, how that evidence relates to his defence. There are two records relating to Mr. Cain’s participation in physical exertion tests known as Six-Minute Walk Tests that have been referred to during the trial and marked lettered exhibits. The first is dated November 11, 2009. The Crown takes no issue with this record becoming a numbered exhibit. The second is dated August 22, 2011. The Crown is not opposed to the record similarly being marked a numbered exhibit, on the condition that two words be redacted from the record: “severe hypoxia”.

[15] The Walk Tests involved Mr. Cain walking continuously in a hallway for six minutes. Baseline heart rate and oxygen saturation levels were taken, then re-measured every 30 seconds throughout the test. The results are recorded in table fashion in the records. At the bottom of each of the records is a box with the heading, “Physician Interpretation”. On the August 22, 2011 record the box appears as follows:

The patient walked a total of 470 m in 6:00 minutes. The starting HR was 86 bpm and the end of test heart rate was 137 bpm. The patient stopped a total of 0 times. The end of test O2 sat was 53. The patient’s end of test dyspnea BORG scale was 3.0/10, and their fatigue BORG scale was 2.0/10.

Walk distance is unchanged. Severe hypoxia.

Physician Interpretation

[16] The Crown’s concern about the term, “severe hypoxia” is two-fold:

(a) The interpretation is not that of Dr. Colman. It is the hearsay opinion of another physician, identified as Dr. J. Thenganatt.

(b) The interpretation is misleading. The test does not in fact measure “hypoxia”, which is a condition of low oxygen in the tissues. The test measures “hypoxemia”, which is a condition of low oxygen in the blood.

[17] I will address the Crown’s concerns in turn.

[18] The hearsay issue can be quickly resolved. It is not unusual for expert witnesses to rely on the hearsay statements or records of others in forming their opinions. Justice David Watt notes, in Watt’s Manual of Criminal Evidence 2014 (Toronto: Thomson Carswell, 2014), at §29.04:

In general, a duly qualified expert may offer an opinion within his/her area of expertise that is necessary to assist the jury, notwithstanding that the opinion is based, in whole or in part, on a secondary or hearsay source. The hearsay or secondary evidence is admitted to demonstrate the basis upon which the opinion was formed, not to prove the truth of the facts stated. The trier of fact is entitled to consider, and be instructed accordingly, that the weight to be assigned to the opinion is related to the amount and quality of admissible evidence of the basis upon which it is founded.

[19] The hearsay nature of the record does not preclude its admissibility. The jury is entitled to consider it as a matter of weight to be attached to the opinion of Dr. Colman.

[20] The interpretation issue can, in my view, similarly be resolved relatively quickly.

[21] The Crown’s assertion is essentially that the court should exercise its discretion to exclude or redact the reference to “severe hypoxia” because of its tendency to mislead the jury. In other words, its tendency to prejudice the truth-finding function of the trial exceeds any probative value it may have.

[22] The difficulty with the Crown’s assertion is that it is not borne out in the evidence.

[23] Dr. Colman testified that the term “hypoxia” refers to low oxygen. “Hypoxemia” is a condition of low oxygen in the blood. He said that hypoxemia is a subset of hypoxia. They do not mean entirely different things. While not interchangeable in a formal way, the terms are often, in practice, used interchangeably.

[24] Dr. Colman discussed the Six-Minute Walk Test results in some detail during his testimony. He indicated that “severe hypoxia” is defined as oxygen saturations of 85% or less. Looking at Mr. Cain’s recorded drop in oxygen saturation during the August 22, 2011 Walk Test, Dr. Colman noted that the oxygen saturation level bottomed out at 53%. He described that level as “severe hypoxemia”.

[25] It was pointed out to Dr. Colman that the August 22, 2011 report interprets the results as “severe hypoxia”. He said the person who interpreted the results could have said “severe hypoxemia” but chose instead to say “severe hypoxia”. Low oxygen in the blood is, he said, associated with low oxygen in the tissues. So either term is acceptable. In his view, it is not relevant to distinguish between the two terms. In other words, it is not misleading to characterize the results of the test as “severe hypoxia”.

[26] There is no evidence to the contrary.

[27] I understand that the Crown’s view is that Mr. Cain’s body has adapted somewhat to his chronic hypoxic state. He had an opportunity to question Dr. Colman about adaptation and he is free to make submissions to the jury about ways in which Mr. Cain may have adapted to his chronically low levels of oxygen saturation. That said, the evidentiary record does not support the Crown’s assertion that the August 22, 2011 record is misleading in any way.

[28] In the result, the records for both Six-Minute Walk Tests will be marked numbered exhibits and will be available for the jury to consider.

Thatcher Instruction

[29] A Thatcher instruction tells jurors that where there are alternative routes to liability, they do not all have to agree that guilt has been established on the same basis. It is sufficient if they are all satisfied that guilt has been proven beyond a reasonable doubt on one basis or another.

[30] In this case the Crown relies on two routes to a conviction for first degree murder: planning and deliberation and, in the alternative, constructive first degree murder. There is no dispute, however, that constructive first degree murder does not apply to Mr. Guerra. His alleged role in the offences was as the wheelman. There is no suggestion that he went inside Justin McKelvey’s residence. It is agreed that the Crown is unable to establish that he played an essential, substantial and integral part of the killing of Ryan Kennedy, which is an essential element of constructive murder.

[31] In the revised draft charge I have separated my instructions on the essential elements into different streams. I have extricated my instructions on the Crown’s case against Mr. Guerra from my instructions on the Crown’s case against the other three accused. In the result, any complications involving the structure and content of the Thatcher instruction are removed. The usual instruction will be given in terms of the Crown’s case against the three intruders. No Thatcher instruction is required and none will be given in terms of the case against Mr. Guerra, insofar as different routes to first degree murder are concerned. In his case, there is only one route. There are different options in terms of modes of participation and the usual Thatcher instruction will be given in that regard, which is applicable to all four accused.

Wilful Blindness

[32] The Crown’s case against Mr. Guerra is grounded in two alternate modes of participation: aiding, or alternatively, common unlawful purpose participation.

[33] Either mode of participation requires that the Crown prove an essential element of knowledge on the part of Mr. Guerra:

(a) In terms of aiding a culpable homicide (count one) or an attempted murder (count two), it is necessary for the Crown to prove that Mr. Guerra helped the principal party for the purpose of committing culpable homicide. Purpose is the sum of its constituent parts: knowledge and intention. Crown counsel must prove beyond a reasonable doubt that when he did the act(s) that helped the principal, Mr. Guerra knew of the intent of the principal who assaulted Ryan Kennedy with a weapon and killed him. In relation to manslaughter, the knowledge required is that the principal intended to assault Ryan Kennedy with a weapon. In relation to murder or attempted murder, the knowledge required is that the principal intended to kill;

(b) The Crown relies on the common unlawful purpose route to culpability (as set out in s. 21(2) of the Criminal Code) only in relation to count one and even then, only as an alternate route to a manslaughter conviction. In this case, to establish culpability for manslaughter through this mode of participation, the Crown must prove beyond a reasonable doubt, amongst other things, that Mr. Guerra participated in a joint plan or agreement to commit a home invasion/robbery. Participation requires knowledge of the purpose or goal(s) of the common plan and an intention to help achieve those goals.

[34] Mr. Guerra testified in his own defence. He agreed that he drove his three co-accused to Minden on the night in question. And he agreed that he drove Mr. Cain back to Toronto, after searching for Mr. Hong and Mr. Gillard-Gatza unsuccessfully. But he said he did not knowingly participate in any criminal offence. He said he was asked by Mr. Cain to drive him to Montreal and that is what he understood he was doing.

[35] The Crown asked that the Court give the jury an instruction that Mr. Guerra’s knowledge of the intent of the principal(s) and/or the goal(s) of the joint plan or agreement can be established in two different ways: either through proof of Mr. Guerra’s actual knowledge, or through proof of wilful blindness.

[36] Mr. Bayliss, on behalf of Mr. Guerra, opposed the Crown’s request.

[37] There is no doubt that wilful blindness can be a substitute for knowledge in appropriate cases. It involves imputing knowledge to a defendant where the circumstances are such that suspicion is aroused to the point where the defendant sees the need for further inquiries but deliberately chooses not to make those inquires: R. v. Briscoe, 2010 SCC 13.

[38] I find that on Mr. Guerra’s own evidence his suspicions were clearly aroused to where he saw the need to make further inquiries. He did not make those inquiries. I rely on the following.

[39] There is no dispute that on the evening of October 19, 2011, Mr. Guerra picked up his three co-accused in Toronto and drove them to Minden.

[40] According to Mr. Guerra’s testimony, he was asked by Mr. Cain to drive him to Montreal. He agreed to do so. When he got to Mr. Cain’s home, Mr. Cain told him they needed to pick up a friend. When they got to the friend’s house, it turned out to be two friends. They headed out the 401 East, but Mr. Cain instructed Mr. Guerra to turn north up Hwy. 35/115. Mr. Guerra said he had never been to Montreal and was relying on Mr. Cain for directions. When they got into Minden, he was instructed to turn east onto South Lake Road, which is a rural side road. He was instructed to drive back and forth past a particular residence – Justin McKelvey’s house – four times. Data from his GPS device indicates that on the fourth pass he slowed down to about 17 km/hr.

[41] Mr. Guerra said that during the last pass, someone in the car said, “I think this is it”. It was at that point that he came to the conclusion that he had been duped. He said he was angry and insisted that his gas be replaced. He drove to a nearby gas station and Mr. Hong pumped in $20 in gas. Mr. Guerra then drove by the McKelvey residence again and parked his car along a darkened and heavily wooded side street called Colonial Road. He said Mr. Cain had asked him to drop them off there. He also said Mr. Cain asked him to wait and he agreed to do so, saying “hurry up” because he wanted to get back to Toronto. The three co-accused walked from Mr. Guerra’s car to Mr. McKelvey’s house – a distance of about 300 metres or so – and began the home invasion that ultimately brought the accused before the court.

[42] From any reasonable perspective, Mr. Guerra should have been highly suspicious that something very dodgy was going on. Indeed, in my view, the facts support more than a conclusion that Mr. Guerra should have been suspicious. They support the conclusion that he was suspicious. He knew he had been duped; he’d been lied to.

[43] Under cross-examination by the Crown Mr. Guerra said he did not ask any of his passengers (the three co-accused) why they were in Minden; what they were doing there; or why they had lied to him.

[44] In my view, there is “evidence on the record upon which a properly instructed jury could find that the defendant [Mr. Guerra] knew there was a need to inquire and deliberately chose not to make the relevant inquiries so that he could avoid being fixed with knowledge” of what was really going on: R. v. Carrera-Vega, 2015 ONSC 3158 at para. 15.

[45] Having said that, there remains a question of what specific knowledge is sought to be imputed to Mr. Guerra through the mechanism of wilful blindness and whether the record supports the sought-after, and requisite, imputation.

[46] In Sansegret v. The Queen, 1985 79 (SCC), [1985] 1 S.C.R. 570, the Supreme Court addressed the application of wilful blindness for the purpose of imputing knowledge. McIntyre J., for a unanimous court, described the narrow application of wilful blindness, citing Professor Glanville Williams’ text, Criminal Law: The General Part, 2nd Ed., London, Stevens & Sons, 1961, at page 161:

A court can find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This and this alone is wilful blindness.

[47] About twenty years after Sansegret, in R. v. Malfara, 2006 17318 (ON CA), [2006] O.J. No. 2069, the Court of Appeal for Ontario held, at least implicitly, that the definition of wilful blindness, as framed by Professor Williams, requires both a threshold level of suspicion and a degree of specificity of the suspicion. Mr. Bayliss argued that neither has been met in this case. The Crown argued the exact opposite. I find myself holding a view somewhere in between.

[48] I am satisfied, as I noted, that the threshold level of suspicion has been crossed on the evidentiary record in this case. But I am not satisfied that the evidence supports the necessary degree of specificity to trigger a wilful blindness instruction.

[49] In my view, the most that can be imputed to Mr. Guerra is knowledge that his three passengers were engaged in a joint criminal venture. The specific nature of that venture is not clear. It could be a drug deal, a break and enter, a robbery, or something else entirely.

[50] The Crown pointed to the facts that it was after 11:00 p.m., it was dark, and that it is likely that Mr. Guerra saw that the co-accused had a baseball bat, as they walked away from his car. I accept, as I noted, that Mr. Guerra knew, if not actually then through deliberate ignorance, that his passengers were on their way to commit a crime when they left his car. But a baseball bat can have a number of different uses. The specificity required here is Mr. Guerra’s wilful blindness to the others’ intention to commit an assault with a weapon. The facts of this case come close but ultimately fall short of establishing the sufficient specificity necessary to impute that knowledge to Mr. Guerra through the mechanism of wilful blindness.

[51] In the result, I decline to give the wilful blindness instruction to the jury.

The Remaining Issues

[52] Three further issues were argued and require rulings. The best I can do, in the available time before counsel’s submissions are to be made, is to advise of the following rulings, with fulsome written reasons to follow:

(a) Planned and deliberate first degree murder will remain a route that the Crown may go to the jury with in relation to all four defendants on count one;

(b) The state of mind for murder reflected in section 229(a)(ii)[^1] of the Criminal Code will be removed from the jury’s consideration in terms of planning and deliberation, but will remain as an alternative state of mind in relation to second degree murder; and

(c) The jury will be instructed clearly that, in relation to constructive first degree murder, the predicate offence (in this case forcible confinement) and murder must be distinct offences. The facts of the case will be related to that instruction. They will not be instructed, as defence counsel requested, that the murder must necessarily occur after the forcible confinement or that they must be satisfied that the murder occurred in the context of the exploitation of a position of dominance.

Boswell J.

Released: October 30, 2015

[^1]: Section 229(a) of the Criminal Code provides alternate states of mind for murder. Specifically:

229. Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.