ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13325/13
DATE: 2015-11-27

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: November 17, 2015

RULING ON post-charge objections

BOSWELL J.

Introduction

[1] A young man named Ryan Kennedy was beaten to death on October 19, 2011. The defendants were jointly charged with his murder. Some forty-nine months later, following a seven month long trial and a two-and-one-half day charge, a jury of their peers began to deliberate on their verdicts. After the jury retired, I heard a number of counsel’s objections to the charge. I ruled orally that only one, in my view, required a supplementary instruction. I undertook to get counsel written reasons for my decisions. These are those reasons.

[2] I intend to address the objections one by one. Before doing so, and to provide some necessary context, I will describe the circumstances of the alleged offences and the structure of the charge.

The Alleged Offences

[3] The four defendants are jointly charged with murder and attempted murder. The offences occurred during a home invasion/robbery in a private residence in Minden, Ontario. The defendants travelled north in one car from Scarborough to Minden, arriving shortly before 11:00 p.m. on October 19, 2011. Mr. Guerra was the driver. He parked his car on a dark rural side street. The other three defendants (whom I will refer to as the “three intruders”) exited the car and made their way on foot about 350 metres to a home occupied by Justin McKelvey, a local area pot dealer. Wearing masks and gloves and armed with a bat, duct tape, bear spray and a plastic oar, they entered Mr. McKelvey’s home through a back door. They confronted Mr. McKelvey in his living room. He was not alone; his friend, Ryan Kennedy, was with him watching television.

[4] Mr. Kennedy was bludgeoned to death. He died of blunt force trauma to his head. Mr. McKelvey was beaten but not killed. The home invasion ended when someone unexpectedly pulled into Mr. McKelvey’s driveway. The lights of the vehicle startled the intruders, who fled with about four pounds of marijuana and $350 in cash.

The Charge

[5] The charge was divided into twelve sections. It began with a description of the general duties of jurors, then proceeded into a discussion of the fundamental principles of the presumption of innocence, the burden of proof and the reasonable doubt standard. Sections three and four involved a review of some general and then more specific rules of evidence applicable to the evidence heard in this case. Section five was an overview of party liability, which was followed, in sections six through ten, with instructions about the offences and their essential elements. The last two sections included a summary of the parties’ positions, as expressed in counsel’s closings, and some general concluding comments, including a reminder of the fundamental principles discussed in section two.

[6] Instructions on the essential elements of the offences were organized as follows:

(a) The instructions were separated by count. In this case there were two counts: first degree murder and attempted murder. The Crown relied on two alternate routes to first degree murder: (1) planning and deliberation; and (2) constructive first degree murder, on the basis that the murder occurred while the three intruders were committing or attempting to commit a forcible confinement;

(b) Under each count, instructions were provided in relation to the different ways in which a defendant may have participated in the offence: principal participation, aiding/abetting, and common unlawful purpose; and,

(c) I gave instructions relevant to the three intruders, then separate instructions relevant to Mr. Guerra. There is no dispute about the fact that Mr. Guerra did not enter the McKelvey residence. In the result, the Crown’s case against him was somewhat different than it was against the three intruders. While there were many similarities in the instructions, there were sufficient differences that I thought it best to give separate and distinct instructions with respect to Mr. Guerra.

[7] The charge was preceded by a pre-charge conference which stretched over more than twelve days. Counsel made extensive submissions on the content and form of the charge. Following counsel’s closings, numerous objections were made – primarily about the Crown’s closing – and further discussions ensued regarding the content of the charge. Following the completion of the charge, additional concerns were raised and it is to those that I turn now.

A. Objections by the Crown

[8] Crown counsel raised two objections, which I will deal with in turn. The first was that the court, in giving examples of what constitutes forcible confinement, gave only single victim examples. In this case there are two victims and the Crown sought a further instruction giving an example of forcible confinement involving more than one victim.

[9] I have three comments in response to this submission:

(a) At para. 199(ii) of the charge, on page 174, I expressly instructed the jury that the victim of the murder and the victim of the forcible confinement, or attempted forcible confinement, do not need to be one and the same;

(b) I gave examples at para. 201 of the kinds of evidence that may, or may not, support a finding of forcible confinement. These examples were not limited to a single victim; and,

(c) I believe Crown counsel may have been conflating my examples of forcible confinement with examples of how an aider might play an essential, substantial and integral part in the killing, which is an essential element of constructive first degree murder. When instructing on that essential element, I used examples taken directly from the seminal case of R. v. Harbottle, 1993 71 (SCC), [1993] 3 S.C.R. 306.

In my view, the charge was sufficiently clear that no additional instruction was warranted.

[10] The Crown’s second objection was that the court’s review of the essential elements of planning and deliberation as they related to Mr. Guerra may have left the errant impression that the jurors must all be satisfied beyond a reasonable doubt that Mr. Guerra was involved in the actual planning and deliberating, in order to be culpable for first degree murder.

[11] I gave very particular instructions to the jury about how to approach the inference drawing process when considering whether Crown counsel had established beyond a reasonable doubt that Mr. Guerra had the state of mind for planned and deliberate first degree murder. I made it patently clear that his state of mind involved two components: knowledge and intention. Earlier in the charge, when addressing the Crown’s case against the three intruders as aiders, I spent some time addressing the requisite state of mind for an aider/abettor to a planned and deliberate murder. At paras. 69-70 on page 198, I gave the following instructions:

…First, are you satisfied beyond a reasonable doubt that the defendant under consideration knew that the principal(s) intended to commit a planned and deliberate murder? Second, are you satisfied beyond a reasonable doubt that the defendant under consideration intended to help or encourage the principal(s) to commit a planned and deliberate murder?

The defendant under consideration need not actively participate in the planning and deliberation, but you must be satisfied beyond a reasonable doubt that he knew that the principal(s) intended to commit a planned and deliberate murder and that he intended to help or encourage the principal(s) to do so. You do not all have to agree on the means by which a defendant acquired knowledge that the principal(s) intended to commit a planned and deliberate murder, so long as you all agree that the defendant acquired that knowledge by one means or another.

[12] Later, when dealing specifically with the Crown’s case against Mr. Guerra, I said the following, amongst other things, in terms of the requisite state of mind (para. 55(i) on page 236):

First, there is no assertion that Mr. Guerra was ever inside 1028 South Lake Road. That means, as I have said, that for him to know that another defendant intended to commit an unlawful killing inside 1028 South Lake Road, he must have acquired that knowledge before the three intruders left his car. Again, you do not all have to agree on the means by which Mr. Guerra acquired that specific knowledge, so long as each of you is satisfied that he came by it one way or another.

[13] I am satisfied that the jury would have been clear, considering the instructions as a whole, that the principal components of the requisite state of mind are knowledge and intent. And in terms of knowledge, that it is not necessary that Mr. Guerra acquired his knowledge by participating in the actual planning. I expressly told them that they do not all have to agree on the means by which he acquired his knowledge. In my view, no correcting or clarifying instruction was required.

[14] Moreover, the instruction relating to Mr. Guerra’s state of mind in the context of a planned and deliberate murder was a very detailed section of the charge. It was the subject of extensive discussions in the pre-charge conference. That observation could never excuse an incorrect instruction of course, but here the issue raised by the Crown wasn’t about correctness. It was really about whether the instruction could have been said better. I agree that it could have. But to attempt to improve it through a supplemental instruction, courts more danger than it is worth.

(Decision continues with the remaining sections exactly as in the original judgment, including sections B. Objections by Mr. Strathman, C. Objections by Mr. Lyon, D. Objections by Mr. Bryant and Ms. Symes, E. Objections by Mr. Bayliss, and Appendix “A”, reproduced verbatim.)