R. v. Kerr, 2017 ONSC 7305

CITATION: R. v. Kerr, 2017 ONSC 7305

COURT FILE NO.: CR-16-30000096-0000

DATE: 20171208

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Crown

– and –

BRIAN KERR Accused

Rob Fried, for the Crown

Craig Bottomley and Sharif Foda, for the Accused

HEARD at Toronto: October 30 and 31, November 1, 2, 3, and 6 2017

REASONS FOR JUDGMENT

S.F. Dunphy J.

[1] In February 2014, the accused, Mr. Brian Kerr, was in custody at Toronto West Detention Centre on criminal harassment and other charges stemming from a complaint made by his former girlfriend Tina. Already under a long-term supervision order before his arrest, Mr. Kerr faced a potentially lengthy prison term arising from these charges. He was on the same range of cells as Richard, someone with a 30-plus year string of break and enter and other criminal convictions. Richard was awaiting trial on his latest break and enter, a minor affair but for his lengthy record of similar offences. The two became friends quickly.

[2] On April 8, 2014, Richard came to the authorities with a story. Mr. Kerr wanted his ex-girlfriend Tina killed to prevent her from testifying against him. He wanted Richard to help arrange it. He provided further details of the plot when contacted by police by telephone the next day. After an investigation, police decided to bring Richard in to hear more. Richard co-operated and gave a formal statement on May 5, 2014. There he described the plot in greater detail – how it evolved, what Mr. Kerr’s motive was, the means to be employed to bring it about and the timing. He had earlier provided prison authorities with two handwritten letters from Mr. Kerr that appeared to corroborate some aspects of his story. These too were forwarded to police.

[3] The police continued to investigate and sought internal approval to engage Richard as an agent to assist them in that investigation. Richard was eventually enrolled as a police agent. He pleaded guilty to his own charges and was released for time served plus probation. After his release on July 31, 2014, he helped arrange for Mr. Kerr to contact an undercover officer by telephone. On September 4, 2014, Mr. Kerr telephoned the undercover officer from prison and carried on a partially-coded conversation with him that corroborated Richard’s story to a significant degree.

[4] Meanwhile, Richard's stint on the straight and narrow was short-lived. Less than a week after the undercover officer received the call from Mr. Kerr, Richard returned to old habits and was arrested on fresh break and enter charges. His status as a police agent was severed a few days later and he was returned to prison.

[5] Based on the information that Richard had assisted the police to assemble before his return to prison, including the recorded telephone call from Mr. Kerr to the undercover police officer posing as a friend of Richard’s, Mr. Kerr was ultimately arrested and charged with attempting to obstruct justice (s. 139(2) of the Criminal Code), counselling Richard to commit murder (s. 464(a) of the Criminal Code) and counselling the undercover officer to do the same.

[6] The Crown’s case depends quite centrally upon the highly-contested credibility of Richard. It is his testimony that de-codes the telephone conversation Mr. Kerr had with the undercover police officer. There were no other witnesses to the alleged “murder for hire” plot.

[7] Mr. Kerr concedes that the Crown has proved beyond reasonable doubt his guilt on the charge of willfully attempting to obstruct justice. The main issue in this case is therefore the degree to which Richard’s evidence can be relied upon in considering the charge of counselling murder. Can any charge be considered proved beyond a reasonable doubt that depends significantly on Richard's testimony?

[8] The defence characterizes Richard as a habitual liar whose evidence can be given no weight whatsoever and certainly not enough weight to discharge the Crown's heavy burden of proof. The defence considers him to be no more than a jailhouse informant – a category of witness whose reliability has been the subject of significant adverse commentary including by two Royal Commissions. The Crown concedes that Richard is a “Vetrovec” witness who comes to court with a very considerable credibility deficit. However, the Crown submits that his evidence was compelling in its detail, credibly told and most of all corroborated in very significant degree by objective evidence. Having reviewed the evidence carefully, I agree.

[9] I find that the Crown has proved beyond reasonable doubt that Mr. Kerr counseled both Richard and the undercover officer to commit murder. Richard was a witness to the crime alleged. Mr. Kerr’s own words on his telephone call to the undercover officer fit the story related by Richard weeks and months earlier like a glove. It would have been next to impossible for him to have invented a story so far in advance that Mr. Kerr would conform to so closely when he spoke – even obliquely or in code – to the undercover officer. All allowances being made for Richard's very considerable credibility challenges, the substantial corroboration of his story by the call and the other objective evidence renders the thesis of fabrication by Richard untenable.

[10] This matter proceeded before me as a judge-alone trial. Mr. Kerr brought an application seeking a stay of proceeding or the exclusion of evidence of the phone call with the undercover officer. The voir dire on that application was heard along with the trial evidence in a blended proceeding. I have delivered separate reasons (contemporary with these) on the voir dire rejecting that application. I shall now expand below upon my findings of fact and my reasons for finding Mr. Kerr guilty.

Facts

(i) Richard’s background and credibility risks

[11] Richard has a very, very long history of breaking the law. His record was appropriately described by his police handler, D.C. Fernandes, as “horrible”.

[12] He began his career in crime early and has been nothing if not persistent in pursuing it. Beginning in 1981 (at the age of 16) until 2014, Richard accumulated convictions running to several pages on his record. I did not count them myself, but none took issue with Richard’s own tally of 104 convictions and a total of 24 years of custody resulting. That is significantly more than half of his adult life. With those kind of numbers, greater statistical precision adds nothing to the picture.

[13] The convictions cover many crimes, but breaking and entering, theft and possession of stolen property are the overwhelming themes. These are of course crimes of dishonesty, but not necessarily of deception.

[14] Richard has numerous convictions for breach of probation terms. Having been on probation nearly continuously, failure to comply convictions are frequent partners to his numerous other convictions. Such convictions do not speak highly for his history of honouring promises given, but they do not necessarily demonstrate a propensity to lie either.

[15] His record features a sprinkling of other convictions as well. He has three convictions for escape custody or being unlawfully at large. On cross-examination, it emerged that these three convictions arose from failing to return from temporary release passes or walking away from a halfway house. There have been convictions for uttering threats and obstructing a police officer. In the former case, Richard threatened a man that his daughter claimed had sexually assaulted her. Without necessarily accepting or rejecting Richard’s explanation, it is clear that this particular conviction stands as something of an outlier in his record. Once he gave his brother’s name to police when being given a minor ticket. That event too was a bit of an outlier in his record. The most serious recent conviction was for a thoroughly botched bank robbery in 2012 involving threats with a knife.

[16] Richard was cross-examined quite closely on all of these charges and the handful of instances in his record where charges were withdrawn as well. I do not propose to relate this history in greater detail. Every conviction has a story, no doubt. However, there comes a point where res ipsa loquitur applies. This is such a point.

[17] In fairness to Richard, there are some things that are absent from his record that mitigate its impact to a degree.

[18] Violence is not a theme of his record. The bank robbery and the threatening incident are the extent of violence to be found in it and both involved threats rather than actual use of violence. None of his convictions were for large thefts – relatively small amounts of property or money are all that any of his crimes netted him.

[19] While theft, breaking and entering and the like are hardly crimes of honesty, his record does not have more than trace elements of planned deception or fraud. Giving a wrong name to a police officer when receiving a ticket is not very honest to be sure. However, the name given was the real name of an actual, living brother, a brother who promptly turned him in rather than pay for someone else’s ticket. Nothing in this shows deception coupled with planning or deliberation, still less any skill in the matter.

[20] There is nothing in Richard’s criminal past to suggest the level of sophistication and planning needed to frame Mr. Kerr as the defence suggests occurred here.

[21] Finally, Richard has an unbroken record of owning up to his transgressions when caught. He testified that he has pleaded guilty in each and every case where the Crown did not withdraw the charges. The defence suggests that he was acquitted once – I was unable to find a record of that before me, but even if true, that would be the exception that proves the rule.

[22] Richard has had his reasons for his problems with the law. He was sexually abused as a child and again when he was only 12 years old working at Maple Leaf Gardens. He appears never to have been able to get his life on track since. He began using serious narcotics as a teen and was soon involved in a life of crime.

[23] Richard claims to be turning a corner in his life. That may be so. I hope it is. For every one of those convictions, there is someone whose home or business was broken into. There is someone whose sleep was interrupted for months or years afterwards; someone who is startled by every creak of a floorboard in the night. Richard has left a broad swath of victims of crime in his wake. Only time will tell if Richard will be able to break free from the depressingly consistent pattern his life has shown until now. The insight he is now showing into the impulses that have sent him down the wrong path so often is at least a start.

[24] The bottom line is that Richard is clearly a character with a very bad reputation. He is someone who has shown little hesitation in breaking the law. However, it cannot be said that he is an “expert at deception” or a “habitual liar”. If he were, he should have been an inmate of Her Majesty’s prisons far less frequently than he has. Richard is a recidivist of such frequency as to make the term seem inadequate. He is an inept thief but not an expert liar. He is someone whose character should warrant a sharp and clear caution in a jury trial and accordingly someone that I must be no less wary of when assessing his evidence. However, he is not someone whose testimony can or should be assumed in advance to be a fabric of lies and deception. Dickson J. in Vetrovec v. The Queen, [1982] 1 SCR 811, 1982 SCC 20 at p. 583 I cautioned against pigeon-holing witnesses into categories in advance, a caveat given in the case of the old “accomplice rule”, but no less relevant in this context.

[25] Richard’s extensive record is appropriately a cause for caution and wariness about his credibility. It is not an outright bar to his evidence being accepted.

[26] Richard is also visually handicapped. He has macular degeneration in both eyes. While legally blind, his handicap allows him to see to a very limited extent (he can, for example, read very large print or some text with a sufficiently large magnifying glass).

[27] The defence suggests that I cannot accept Richard’s word about this handicap any more than I can accept his evidence about any other matter. I do not agree. Richard described his condition (macular degeneration) and its symptoms accurately and consistently. His handicap was well known to and commented upon by a number of witnesses who dealt with him from the very beginning of the events at issue. He had no reason to exaggerate or fabricate his handicap at that early stage. His handicap is of only limited relevance to the narrative (and one relied upon by the defence to some degree in attacking the plausibility of Richard being recruited to help with the plot). I accept Richard’s evidence about his vision handicap without reservation.

[28] The last preliminary comment I shall make about Richard is on the matter of time. Richard is a very poor reporter about anything to do with time and freely confessed as much. In prison as often as he has been, he loses track of it. On any occasion in his testimony where Richard guessed when something occurred or the time between two events, his estimates almost invariably proved wrong. This was of little consequence to the narrative in this case because almost all relevant events were accurately captured by objective third party evidence, or at least narrowed down in time frame.

(ii) Richard & Mr. Kerr in Toronto West

[29] Richard was arrested on February 15, 2014. He was charged with break and enter, possession of property obtained by crime under $5,000 and failure to comply with probation terms. The incident involved breaking into a garage and stealing some tools. On February 19, 2014, he was admitted to Toronto West where he was held in custody awaiting trial. He was initially assigned to Unit 4B, cell 12.

[30] Mr. Kerr was in the same Unit 4B at Toronto West from January 30, 2014, but in cell 14. He was held in custody on charges of criminal harassment, threatening and failure to comply. The criminal harassment and threatening charges name Tina as the victim. The two shared a cell for about a week – from March 22, 2014 until April 1, 2014. Thereafter, the two remained in the same unit, but in different cells until June 12, 2014.

[31] Richard testified that he and Mr. Kerr became friends soon after his admission into Toronto West. I accept his evidence in this regard. It is plausible – the two were cell mates for a time and on the same range for a longer time. It is consistent with the objective evidence including the fact that Mr. Kerr responded to a postcard sent by “Rich” in August 2014 by phoning the undercover officer at the number provided by Richard. It is also quite uncontradicted.

(iii) Richard approaches authorities and is enlisted as an agent

[32] On April 8, 2014, Richard left a voice mail message for the “ROPE” (or “Repeat Offender Parole Enforcement”) Squad at 11 Division in Toronto giving his own name and the fact of his detention at Toronto West. He advised police that Mr. Kerr wanted his girlfriend killed. Richard asked police to contact him or his lawyer. The message was not noticed for several hours. It was ultimately heard by Det. Waters who, after verifying the accuracy of the two names provided and that both were inmates on the same range at Toronto West, reported the incident to his superiors.

[33] Richard testified that he left the message with 11 Division because he had learned from Mr. Kerr that he had been arrested by members of the “ROPE” Squad from that division.

[34] The next day, an investigative team was assembled to discuss the call and decide upon next steps. In addition to investigators, members of the Covert Operations team were brought into the investigation. Richard was contacted by telephone by D.C. Martin, one of the investigators assigned to the case. He provided D.C. Martin with further details of the plot he had referenced in the voice-mail message the prior day.

[35] On April 11, 2014, Richard met with Corrections Officer (now Sergeant) Watson at Toronto West. He gave Sgt. Watson documents that he said he had received from Mr. Kerr. These documents were identified by both of them at trial and were ultimately turned over to police as part of their investigation. They consisted of a small prisoner’s phone book (distributed to prisoners by a Christian Ministry) inside which three folded, stand-alone pages had been inserted. The phone book contained only three entries: Tina (her full name and phone number), a 1-800 number for legal aid and the fax number of Mr. Kerr’s lawyer (identified as “KGB’s lawyer”). Those same three entries from the phone book were reproduced on a single sheet of paper (one of the three folded inside the phone book) in thick pencil with very large block letters, with the one difference that Mr. Kerr’s lawyer was described as “My lawyer” (instead of “KGB’s lawyer” in the phone book). The other two pages folded inside the phone book were two letters that have been admitted to be in Mr. Kerr’s hand, both referencing Tina. These two letters will be discussed further below.

[36] Richard’s evidence is that Mr. Kerr gave him the phone book so he would know where to contact Tina when he got out at an early stage in the evolution of his plan (before it evolved into murdering Tina). He then copied the addresses in big print to ensure Richard would be able to read it.

[37] On April 29, 2014, D.C. Fernandes spoke to Richard by telephone. D.C. Fernandes was with the Covert Operations group and was assigned to be Richard’s “handler”. The purpose of the call was to arrange for Richard’s consent to a court order authorizing his transport from the detention centre to a police station to give a formal statement. Richard gave his consent.

[38] On May 5, 2014, D.C. Fernandes transported Richard to a police station where he was interviewed by police in person for the first time. His statement was given following a formal caution and a video recording of it was made with Richard’s consent.

[39] On July 10, 2014, Richard was contacted by his handler, D.C. Fernandes. D.C. Fernandes had a more granular memory of this call than did Richard, but their memories were not markedly different. The purpose of the call was for D.C. Fernandes to obtain Richard’s consent to a further court order allowing him to be brought out of custody to come to the police station on July 14, 2014. During the course of this call, D.C. Fernandes recalled Richard expressing frustration at the amount of time he had spent in jail for such a minor offence and wondering if someone had it in for him. He asked if police could help with his sentence. D.C. Fernandes followed his training and made clear to Richard that no commitments could be given. However, he advised that he would make inquiries to see what could be done. D.C. Fernandes recorded this request for assistance in his notes and made inquiries about obtaining a consideration letter to be given to the Crown.

[40] The call of July 10, 2014 may have been the first discussion of consideration between Richard and police, but it did not come as a surprise. D.C. Fernandes agreed that from the time he first became involved with the matter (April 9, 2014), he considered that this motive may have played a role in Richard coming forward. However, he considered that the risk Richard was taking in coming forward was far greater than anything Richard might gain in view of the risk he might be “outed” and the likelihood of him spending more time in jail given his record of recidivism.

[41] The requested meeting between Richard and police took place on July 14, 2014 as planned. In the course of this meeting, Richard provided a further statement to police. Richard was also advised that police were considering engaging him as an agent to assist in the investigation. In this connection, he was asked to sign an Acknowledgement Letter. Police arranged for Richard to receive independent legal advice regarding this Acknowledgement Letter at the station before asking him to sign it. As well, because of Richard’s handicap, the Acknowledgement Letter was read to him aloud and he was asked to re-state the gist of most of the clauses in his own words to ensure he fully understood it. Among other things, the Acknowledgment Letter provided in s. 8 as follows:

I clearly understand that the only undertaking by Toronto Police Service is that the Covert Operations – Source Management “Controller” may consider drafting and forwarding a court consideration request letter to the appropriate Crown attorney. If this were to be the case the appropriate Crown attorney may then decide whether or not to grant some form of compensation in respect of the charges.

[42] Richard pleaded guilty to the charges he faced on July 29, 2014. There was no plea bargain presented to the court at that time. Sentencing was agreed to be put over until July 31, 2014. In asking for this date, defence counsel advised the court that he was going to be out for the entire month of August and that there were some “equitable considerations” that Toronto Police had been unable to document to the satisfaction of the Crown. However, with or without the documentation, the sentencing was to proceed on July 31, 2014.

[43] In fact, a Consideration Letter had been drafted by police dated July 29, 2014. This gist of this letter and its delivery to the Crown on July 30, 2014 is discussed in further detail in my reasons on the voir dire and the admissions given there are equally applicable to the trial. There is no evidence that Richard or his lawyer ever saw the Consideration Letter wherein Toronto Police outlined the fact of Richard’s co-operation as a witness in a murder for hire investigation.

[44] On July 31, 2014, Richard appeared for sentencing. The Crown made a joint submission on sentencing that was accepted by the court. Richard was sentenced to time served and placed on probation.

(iv) Richard’s evidence about the plot

[45] The following is a brief summary of Richard’s evidence regarding Mr. Kerr’s attempt to secure his assistance to murder Tina.

[46] Initially, Mr. Kerr attempted to telephone Tina to try to persuade her to recant. He explained to Richard that he was facing these additional charges while he was a long term offender and was facing more time as a result. Richard witnessed the calls to Tina and was standing beside Mr. Kerr when they were made. Mr. Kerr tried to get Richard to make similar calls on his behalf when he was unsuccessful. Richard tried calling her a couple of times, but did not get through.

[47] When this was unsuccessful, Mr. Kerr sought Richard’s help in what I shall call the “first plan”. Under the first plan, Richard would see Tina after he got out. Richard would try to talk to her and try to persuade her that Mr. Kerr loved her. Mr. Kerr would write a letter telling her it was OK. She would stay away long enough to miss the preliminary inquiry.

[48] This first plan very quickly evolved. The second plan was to kidnap Tina’s dog and this would convince her to come with them if she wouldn’t go willingly.

[49] As time went on, a third plan was for Richard to kidnap Tina to take her to a cottage and keep her away.

[50] More time went by. A fourth plan emerged one day after Mr. Kerr came back from speaking to his lawyer. Richard did not witness this call, but saw Mr. Kerr when he returned from it red faced and very angry. He told Richard: “they’re asking for a DO and it’s that bitch’s fault”. Richard understood “DO” to refer to a “dangerous offender” application by the Crown. Mr. Kerr then said “why don’t we just kill the bitch” or “have her killed”.

[51] The two – Richard and Mr. Kerr – had a number of discussions of the plan over the coming days and weeks. Richard was unable to recount those discussions blow by blow so much as to recount what matters were discussed and how this last plan evolved.

[52] Richard told Mr. Kerr that he would need help because of his eyesight. He suggested that he had a friend named “Stuart” who would help carry out the plan. This friend was a purely invented name by Richard. There was no “Stuart” in real life. Mr. Kerr agreed to the suggestion of using “Stuart”.

[53] The means of accomplishing the plan were also fleshed out through their numerous discussions. Richard would go to Tina’s place. He might dress as a police officer to gain admittance to her apartment. He would bring a type of coffee that she liked – French Vanilla. There was a Tim Hortons across the street from her building where he could get it. The coffee would be spiked with sleeping pills or whatever drug he could get to knock her out.

[54] Once she was knocked out, Richard and Stuart were to inject Tina with an overdose of heroin, leave a couple of needles around, clean up and leave. The needles would be left behind because Tina was “an ex druggie”.

[55] Discussion of this murder plot was “totally serious” and went on for “a couple of months”. This time estimate must be subject to the caveat I mentioned above – Richard’s time estimates can be taken to be little more than guidelines.

[56] They discussed payment and proof of death. It appears that Mr. Kerr contemplated that the opportunity to steal from Tina’s apartment would provide enough to cover the necessity of payment. Richard was to take a Gucci bracelet and a phone that belonged to Mr. Kerr to prove that she was dead. There were a variety of items in the apartment that he would also be able to take to receive payment. A $15,000 stereo, $5,000 or more of cash that she would be carrying – apparently tied to an arrangement where she was to receive $40,000 from a real estate transaction with her father, some gold rings and gold in the apartment and other items. Later, it was arranged that Mr. Kerr would make arrangements to provide Richard with 56g of drugs (either crystal meth or cocaine) the proceeds of sale of which could be used to pay “Stuart”.

[57] Mr. Kerr was to receive some of the proceeds as well. These were to be deposited in accounts he gave to Richard, one in Mr. Kerr’s mother’s name (“Lorraine Ada”) and one in Mr. Kerr’s name.

(v) Richard as a police agent

[58] On July 25, 2014, D.C. Fernandes confirmed to Richard his engagement as a police agent. Richard provided a briefing to the undercover agent who was to impersonate “Stuart”.

[59] On July 29, 2014, Richard pleaded guilty to his charges. Sentencing was scheduled to take place on July 31, 2014. On July 31, 2014, Richard received a sentence of time served plus probation. Following Richard’s release later that day, he spent several hours with police being briefed about his new role as agent.

[60] On August 22, 2014, Richard was tasked by police to write a postcard to Mr. Kerr at the Lindsay Detention Centre to which he had been moved. The postcard was provided to Richard and the text was dictated to him. He wrote it out in his uncertain and shaky handwriting by reason of his visual handicap. The following is the text of the postcard mailed to Mr. Kerr that day:

Hey its Rich (Ada) I tried to get a note to you at the South but they said you were moved to Lindsay. Here is the # 416-435-1570[^1] … Add myself and [intentionally deleted] (Stu)art to the visitors list.

[61] The undercover officer testified about this postcard. It had been his plan to attempt to meet Mr. Kerr at the Lindsay jail, but the attempt was ultimately unsuccessful because they arrived too late for visitors. He understood the name “Ada” to refer to Mr. Kerr’s mother and that this was a safe word arranged between Richard and Mr. Kerr. Richard’s evidence confirmed this.

(vi) The call

[62] On September 4, 2014, at approximately 8:26 p.m., Mr. Kerr called the undercover officer on the number given in the postcard from Richard. Coming from prison, the call was a collect call from “Brian for Stu and Richard” and lasted about two minutes. The voice on the call has been admitted to be that of the accused, Mr. Kerr.

[63] “Stuart” asked Mr. Kerr “How’s things in there” to which Mr. Kerr responded “it’s alright, not too bad. I’m holding it down you know…Yeah, well things are going to turn around soon, right?” to which “Stuart” replied “Yeah, I hope so”.

[64] Mr. Kerr then volunteered “I’m gonna give him sixty, eh, just so you know, you know. Sixty of those you know what I mean”.

[65] When “Stuart” attempted to arrange an in-person meeting, Mr. Kerr declined saying “I don’t know like is that a good idea though because they…take down your name and everything when you come right?”

[66] “Stuart” then suggested to Mr. Kerr that “Ada says that we’re good and everything’s good on my end” to which Mr. Kerr replied “Right”. However, when “Stuart” said “the guy that’s giving me the estimate, right, is saying like there’s two different jobs. Like there’s … the job keeps changing on your end”, Mr. Kerr replied “last I knew sixty were supposed to be dropped off to Ada … and then he was gonna you know dump that and then deal with you from there right”.

[67] “Stuart” pressed the point further: “I’m just looking to…you just tell me what…you just place your order and tell me how you want everything to happen and then I can…” to which Mr. Kerr responded “I know, I know but Ada knows though. I told him.” And “He knows exactly how. Yeah, like know just tell him … ummm … do the hot coffee thing or whatever. He’ll know what I mean by that”. “Stuart” continued “just swing by…drop off a coffee” and Mr. Kerr again replied “Yeah, basically you know…he’ll know what I mean”.

[68] “Stuart” then turned the conversation to payment. He asked Mr. Kerr “what else are you looking to move then as part of that … thing?” Mr. Kerr took a moment to follow, saying “oh you’re talking about my … are you talking about … like her ... or you talking about my property”. “Stuart” replied that “I’m talking about both like I gotta get paid at the end right”. Mr. Kerr then proceeded to relate various items that “she” had including a $15,000 stereo system and some “gold and shit there too”, concluding “anyway, Ada knows where that is I told him where it is right”.

[69] The conversation then returned to the “sixty”. “Stuart” asked “what about the … the um … that drywall compound there, the, that white drywall compound”.

[70] In testifying about this, the undercover officer explained that he made up the reference to white drywall compound on the spot, looking for something Mr. Kerr would understand to refer to cocaine in code.

[71] Mr. Kerr responded to this suggestion by saying “that’s just it. Ada knows who to get a hold of and this guy is supposed to drop it off to him” and then “yeah, yeah, he’s getting sixty of them”.

[72] “Stuart” returned to the subject of payment, asking “the jewelry once it’s all done what do you want done with that?” Mr. Kerr responded “Well, I don’t care. You can have it, you can do whatever you want with it. You know what I mean? Like that’s just a bonus for you guys right if you go to…if you go to that extent right you know”.

(vii) Richard re-arrested

[73] On September 8, 2014, Richard was arrested in connection with a break and enter. Shortly after this, his engagement as an agent of Toronto Police Services was brought to an end.

Issues to be decided

[74] Has the Crown proved beyond reasonable doubt that Mr. Kerr counseled each of Richard and the undercover officer to commit an offence – murder – that was not committed?

[75] Has the Crown proved beyond reasonable doubt that Mr. Kerri attempted to obstruct the course of justice by attempting to dissuade Tina from coming to court at his pre-trial?

Analysis and discussion

(i) Counsel murder: Counts 2 and 3

[76] The Crown bears the burden of proving beyond reasonable doubt each of the following essential elements of the offence of counselling each of Richard and the undercover officer to commit the indictable offence of murder that was not committed contrary to s. 464(a) of the Criminal Code:

(a) That Mr. Kerr counselled each of Richard and the undercover officer to commit murder;

(b) That Mr. Kerr intended that each of them would commit the murder; and

(c) That neither Richard nor the undercover officer committed the murder.

[77] There is no dispute in this case as to the third essential element: neither Richard nor the undercover officer in fact murdered Tina.

[78] The only direct evidence of the first two essential elements is Richard’s evidence of his various conversations with Mr. Kerr and the evidence of the September 4, 2014 phone call from Mr. Kerr to the undercover officer posing as “Stuart”. However, the phone call was a guarded affair requiring the Crown to rely in large measure upon Richard’s evidence to decode it. There is thus no path to a guilty verdict for the Crown for these two Counts that does not pass through Richard’s evidence directly or indirectly.

[79] Richard’s evidence regarding his various discussions with Mr. Kerr is entirely uncontradicted. While his evidence was uncontradicted, it clearly was not unchallenged. The defence attacked his credibility ferociously.

[80] The Crown’s case thus depends very heavily upon Richard’s credibility. If Richard’s evidence can safely be relied upon by me, it contains proof of all the essential elements of the indictment. If his evidence is rejected by me in whole or in substantial part or if it leaves me with a reasonable doubt about any of the essential elements of the offences the Crown must prove, Mr. Kerr must be acquitted.

[81] The defence took the position that Richard’s evidence simply cannot sustain any factual conclusions to the standard of beyond reasonable doubt because of his alleged status as an “in-custody informer”. While there are certainly some analogies to be drawn between Richard’s status and that of an “in-custody informer”, I have addressed at some length in my reasons on the voir dire why Richard does not warrant that title and I shall not repeat them here. Nevertheless, I do fully accept that Richard’s circumstances warrant my approaching his evidence with a high degree of wariness. That appropriately cautious approach to his evidence does not imply that there is a hard and fast rule that effectively bars me from making use of it unless it satisfies some extraordinary burden of proof.

[82] I do not accept the idea that this one category of witness is to be presumed to be endowed with almost superhuman capacities to deceive or that the presumed motive of seeking early release or favourable treatment behind bars is so much more powerful than any other motive. There are good liars and bad liars. There are strong motives and weak ones. The quest for freedom, arrogance, love, hate, greed, jealousy, revenge or resentment: all of these can be very powerful motives. Prisons certainly have their share of inmates whose crimes can be traced to one or more of these motives. However, the persistence of the phenomenon of recidivism does not recommend prison as being a particularly effective academy of deception.

[83] Richard’s evidence must be approached with care to be sure. However, it is admissible evidence like any other to be assessed along with all of the other admissible evidence. This approach of heightened caution without advance pigeon-holing is consistent with the approach of Dickson J. in Vetrovec mentioned earlier in these reasons.

[84] I shall therefore broach the question of assessing Richard’s credibility from three perspectives. Firstly, I shall examine the questions of demeanor and consistency. Was he contradicted at trial? Did he hold up under cross-examination? Was I left with an impression of sincerity or deception? Secondly, I shall examine the question of motive. The defence has strongly urged me to find that Richard’s self-interest motive overshadows all others and renders his evidence fundamentally unreliable. Finally, I shall examine the question of corroboration. What aspects of Richard’s testimony have been confirmed from other sources and what level of reliability does that corroboration enable me to infer?

Consistency and demeanor

[85] Richards’s testimony at trial was far from perfect.

[86] There were minor inconsistencies between his testimony and those of the police or correctional officers with whom he dealt. They are professionals in the habit of keeping notes, he is not. I found their evidence to be preferable, but did not conclude for that reason that Richard was being insincere in his testimony. He admitted his problems in keeping track of time quite readily. Peripheral details are also harder to recall with the passage of time.

[87] The defence suggests that Richard was combative when discussing the subject-matter of the consideration he received for informing police about Mr. Kerr. I concur with the suggestion, but only to a limited degree and with an explanation.

[88] Much of the verbal jousting on this topic can be attributed to two sources. Firstly, Richard believes that he received no special consideration in fact – a belief that he credibly defended in court. Secondly, Richard drew a very clear distinction between seeking a “deal” on sentence (something he never did) and having the police speak favourably of him to the Crown (something that he did ultimately ask for and receive). Allowance being made for his reasonably-held views on these two issues, his evidence about motive was quite consistent on cross-examination and was not materially shaken. I shall return to this subject below.

[89] Richard’s testimony was not seriously shaken on cross-examination at all. This is no small consideration. Richard gave two video statements and was cross-examined on one of them at the preliminary inquiry which was also recorded. There was almost no reference to any of these sources in cross-examination. The few references to prior statements that were made in cross-examination were quite inconclusive.

[90] Richard held up very well under cross-examination and the cross-examination he faced was by no means gentle. He was taken through some very unpleasant evidence from his past. He was not handled with kid gloves. There was mention of the fate of prisoners who “rat” in terms that he found highly offensive. He kept his cool throughout.

[91] I found that Richard’s demeanor and performance generally spoke well of him in terms of credibility. He dealt with the unflattering aspects of his past with candour, making little effort to sugar-coat any of it. He demonstrated some insight into what has gone wrong with his life and why he has so frequently been unable to pull himself out of the habits of petty crime that has been a constant theme in his life.

[92] Impressions of demeanor alone are of course very fickle guides to credibility, particularly given the critical weight Richard’s evidence must potentially carry in this case. I must therefore go deeper into the evidence.

Motive

[93] The defence urged me to conclude that Richard was a “jailhouse informant” motivated by an overpowering desire to secure his freedom, characterizing his release from detention on July 31, 2014 as a “plea bargain” received in consideration of the information provided about Mr. Kerr.

[94] There are a number of problems with that simplistic characterization of Richard’s motives.

[95] Firstly, the suggestion that there was a plea bargain is factually incorrect. Richard pleaded guilty on July 29, 2014 before the Consideration Letter was drafted by police and delivered to the Crown. His plea was made without condition and sentencing was scheduled for July 31, 2014 with or without a letter being delivered. A joint submission on sentence was ultimately made on July 31, 2014, but there was clearly no plea bargain nor is there any evidence that Richard ever sought to “bargain” his sentence in return for a guilty plea. He had never failed to plead guilty in the past and he had a lot of experience doing that.

[96] Secondly, in Richard’s mind, he received no “deal” at all. He served almost six months for what he viewed as a very minor offence and expected that at most he might have a “few days” more in prison to serve after his trial on July 31, 2014. The unconditional scheduling of the sentencing hearing the day before his lawyer’s month long vacation validates his view.

[97] Richard acknowledged that he had asked for some help from D.C. Fernandes on July 10, 2014. D.C. Fernandes related more of that conversation than Richard recalled – details that corroborate Richard’s view of this issue. According to D.C. Fernandes, Richard asked for help because he thought someone “had it in for him” given the time he had already spent in jail. It was in this context that Richard asked for help – long after he had given his detailed statements to police. He received only a very conditional commitment. That limited commitment was re-iterated in the July 14 Acknowledgement Letter Richard signed, the terms of which he confirmed in his own words in a statement recorded by police.

[98] There is no evidence that Richard ever discussed the matter of police assistance on sentencing as a quid pro quo for his assistance. His own lawyer was kept “in the loop” by Richard, but was not otherwise directly involved in his discussions with police. Richard’s own lawyer was not involved in providing him with independent legal advice relating to the July 14, 2014 Acknowledgement Letter. Indeed, the first time Richard directly asked for any police assistance in relation to sentencing was on July 10, 2014[^2], long after he had told police most of what he had to say about Mr. Kerr. He was sentenced after a joint submission that made no mention of the Consideration Letter. Richard never saw the Consideration Letter then or ever. In the circumstances, Richard could quite reasonably conclude that he received no consideration from police in fact.

[99] The admitted fact at trial is that the Crown would otherwise have asked for a custodial sentence of twelve months (less 8.25 months credit for pre-sentence custody) absent the Consideration Letter. If accepted, this would have resulted in in an additional sentence of 3.75 months. Whether the Crown’s submission would have carried the day at the July 31, 2014 sentencing hearing is of course a matter which today must remain in the realm of pure speculation. The sentence he received in fact was within the range of what may have resulted with or without a Consideration Letter or joint sentencing submission. The same can be said of the sentence the Crown would have advocated for but did not. I cannot say what sentence he would have received but for police intervention. I can, however, conclude that the risk of an adverse outcome at the sentencing hearing was largely mitigated by the Consideration Letter. That was clearly something. However, it was not a “deal” in a quid pro quo sense.

[100] I accept that Richard may not have appreciated the finer points of that analysis and that his belief that he got no special treatment or “deal” in return for his co-operation with police was sincerely held.

[101] The entire debate about what consideration Richard ultimately did receive is, however, mostly an exercise in looking through the wrong end of the telescope.

[102] The value of the consideration at the end of the day is of lesser significance than the prospect of some value being received as a motivating factor in Richard coming forward initially. The subject-matter of police assistance in sentencing did not arise until July 2014, long after the investigation of Mr. Kerr had been begun and long after Richard had told police almost all that he had to say on the subject. The events of July 2014 have,\ but little relevance to the subject of Richard’s motive in providing police with the information in the first place unless they were a related to an earlier understanding. That is simply not the case.

[103] What can be said of Richard’s motives when he first approached police? He clearly expressed several of them. He had daughters of his own. While he did not know Tina, he didn’t want harm to come to her. He was convinced Mr. Kerr would find someone else to carry out the plot if he thought Richard would not. I fully accept those explanations. However, these were not the only motives Richard expressed. There can be no doubt that Richard had a general expectation that coming forward with information about Mr. Kerr would be of some benefit to him when he appeared in court even if there was no explicit discussion of the matter before July 10, 2014. He virtually admitted this on cross-examination even if he would not characterize his expectation as rising to the level of a “deal” (and I agree with him: it did not).

[104] Any person in Richard’s position would naturally have the expectation that co-operation with police would at least be considered as a mitigating factor at sentencing. Richard’s lawyer would certainly have brought it up in sentencing submissions if a letter had not been sent.

[105] Richard’s vague, privately-held assumption that his actions might also generate some goodwill with police that could pay future dividends at a future court hearing was just that – an assumption. This general motive played no more than a secondary role – and a distant one at that – in his decision to come forward. There was no quid pro quo.

[106] Richard certainly had nothing to gain and actually had quite a bit to lose in coming forward. His frequent-recidivist status placed him at very high risk of finding himself back in detention at a future date in circumstances where his co-operation with police might have become more generally known by other detainees. This is not an insignificant risk.

[107] I find that Richard’s motives in coming forward were exactly as he expressed them. He took a risk in coming forward because he knew that the outcome might well be a requirement that he testify in court. The unexpressed expectation of these actions resulting in some possible benefit at a future sentencing hearing was a secondary motive only, but that expectation cannot be dismissed as playing no role.

Corroboration

[108] Richard’s evidence in relation to Mr. Kerr and the plot to murder Tina was entirely uncontradicted and very substantially corroborated by objective facts.

[109] Richard provided police with a wealth of details about Mr. Kerr’s circumstances in detention that corroborated his assertion that Mr. Kerr was confiding in him. It is true that much of this was the sort of information that Richard might have deliberately set out to learn, but there is no evidence that he actually did so. Knowledge of Tina’s actual current home address, for example, seems unlikely to be the kind of information casually exchanged between detainees in idle conversation. On the other hand, that information would be quite necessary to a potential agent being recruited to murder her. The location and brand of a coffee shop near Tina’s apartment is similarly the sort of specific information useful to carrying out a plot that proposed to use that information, but unlikely to come up in casual conversation. A sighted person with access to a computer might have found that information independently; a visually-impaired person without such access in detention might have found the means to acquire the same information difficult to impossible. There were numerous other details relating to Tina and to Richard’s prior record that might similarly have been obtainable by other means, but Richard’s explanations for how he learned them fit naturally within the narrative of his story.

[110] It was suggested that Richard might have stolen Crown disclosure located in Mr. Kerr’s cell to acquire some of the information he possessed. There was some evidence that, despite a policy prohibiting prisoners from keeping such disclosure in their cells, some did so. There was, however, no evidence that Mr. Kerr ever did this, still less that any of it was ever stolen.

[111] The level of information a visually-impaired Richard acquired about his fellow prisoner Mr. Kerr does not conclusively demonstrate that he acquired it from Mr. Kerr while planning Tina’s murder. It does, however, lend weight to the suggestion that he did.

[112] More persuasive still is the corroboration emanating directly from Mr. Kerr.

[113] Firstly, there was the address book and the letters it contained that Richard turned over to authorities in April 2014. The circumstances and text of these documents corroborates Richard’s description of the initial evolution of Mr. Kerr’s plot at the time when preventing Tina from testifying by means short of murder was being planned. One of the letters specifically described the people carrying the letter as “very good friends of mine” and asked Tina to go with them for a couple of weeks so she will not be able to testify with the result that the Crown’s case would not be able to proceed.

[114] The letters inside the address book were admitted to be in Mr. Kerr’s hand. The reference to “KGB’s” lawyer is consistent with the evidence of Mr. Kerr’s earlier counsel recorded on the Information (and KGB is a simple inversion of Mr. Kerr’s initials). There was no express admission applying to the sheet of paper reproducing the contents of the address book in large print. The inference that the address book and its contents were all Mr. Kerr’s is a strong one.

[115] The defence suggested that these documents may have been stolen by Richard from Mr. Kerr and pointed to a day when Mr. Kerr had been taken to segregation leaving Richard alone in the cell with opportunity to steal from him. I do not find this suggestion to be a very plausible one.

[116] The contents of one of the letters clearly suggests that it was to be carried to Tina by a third party (unnamed, it is true). This fits neatly with Richard’s evidence that he was to carry the letter to her as he described. There is no evidence of any other person being intended to carry the letter to Tina nor is there any evidence that the letter or phone book was ever reported stolen by Mr. Kerr.

[117] Further, the phone book contains only the three mentioned entries. The sheet of paper in large type reproducing it clearly appears intended for a third party (hence the reference to “my lawyer”) and the large, block printing used is quite consistent with a visually-impaired Richard being the intended recipient.

[118] I have no hesitation in accepting Richard’s evidence that these documents were given to him by Mr. Kerr in connection with the earlier version of his plan before he determined to have Tina killed.

[119] Secondly, there is the telephone call of September 4, 2014 between Mr. Kerr and the undercover officer. This call provides substantial corroboration of major aspects of Richard’s description of the plot that Mr. Kerr tried to persuade him to undertake:

(a) Mr. Kerr asked to speak to “Stu and Richard”. These were the very names contained on the postcard sent by Richard to Mr. Kerr at the direction of police and the number called was the number given in that post card. Richard’s uncontradicted evidence was that Stuart was the name of a non-existent friend that he had earlier given to Mr. Kerr as a reliable person who could help Richard carry out the plot to kill Tina. There is no evidence of any other “Stu and Richard”.

(b) Mr. Kerr carried on a conversation with the undercover officer posing as “Stuart” about “Ada” – a name also contained on the postcard (dictated by police to him). Richard’s uncontradicted evidence was that this was a code word he had arranged with Mr. Kerr using the maiden name of Mr. Kerr’s mother. It was used to signify that police were not involved. On the postcard (dictated by police), Richard referred to himself as “Ada”. There is no evidence of any other person named “Rich (Ada)” who might have been sending postcards to Mr. Kerr in August 2014.

(c) The call included un-coded references to various items expected to be found in the apartment that could be a “bonus” for Stuart, a description that closely corresponded to Richard’s uncontradicted evidence of the various items in Tina’s apartment that Mr. Kerr had mentioned to him as possible sources of payment for carrying out the plot.

(d) The undercover officer sought to get Mr. Kerr to clarify his “order”, pleading that there was confusion as to what Mr. Kerr wanted. Mr. Kerr replied that Ada “knows exactly how” and “just tell him … do the hot coffee thing or whatever. He’ll know what I mean by that”. He agreed with “Stuart’s” suggestion that they were to “swing by” and “drop off a coffee” and again repeated that “He’ll know what I mean” (referring to Richard/Ada). Richard indeed testified that he did know what the hot coffee thing was because his description of the plot Mr. Kerr expected him to carry out involved using drugged hot coffee so she could be murdered in circumstances suggesting a drug overdose.

[120] The entire context and content of this phone call with an undercover police officer by Mr. Kerr is fully consistent with what Richard had told police about Mr. Kerr and his murder plot before the call. Mr. Kerr clearly and unambiguously told “Stuart” to speak to Richard as the person who knew what Mr. Kerr wanted done. Richard testified about that plan and there is no evidence to contradict what Richard has said about it.

[121] It is significant that, armed with Richard’s briefing about Mr. Kerr’s plan to solicit the murder of Tina, police were able to compose a postcard that Mr. Kerr responded to and then carry on a phone call with someone posing as “Stuart”. The phone conversation is fully explained by Richards’s evidence regarding Mr. Kerr’s plan. Richard’s evidence thus anticipated and also explains an otherwise guarded and partially-coded phone call. There is no evidence of any other sensible interpretation of the call and Mr. Kerr in his own words expressed on more than one occasion the idea that his instructions were fully understood by Richard.

[122] I find that this call very strongly corroborates Richard’s evidence regarding the murder plot that Mr. Kerr sought to involve him in.

Conclusions re: Counsel Murder

[123] I fully accept Richard’s evidence regarding the details of the murder plot Mr. Kerr sought to persuade both Richard and “Stuart” to carry out. Richard’s evidence fully explains the context and content of Mr. Kerr’s September 4, 2014 call with the undercover officer – it fits as a hand inside a finely tailored glove. The motive attributed to Mr. Kerr by Richard being that of preventing Tina from testifying is credible given Mr. Kerr’s detention on a complaint made by Tina while released under a long-term supervision order. I also accept Richard’s evidence of Mr. Kerr’s repeated efforts to encourage him to carry this plot out during their numerous encounters in prison.

[124] While “Stuart” was a fictional person, the undercover officer successfully impersonated him on the phone call and I find from the evidence of that call that Mr. Kerr was counselling the undercover officer to participate in the plot to murder Tina. His seriousness and intention to counsel both “Stuart” and Richard to carry out the plot to kill Tina was confirmed on that call.

[125] It is simply impossible to posit an innocent explanation of the September 4, 2014 call that does not rely upon conjecture without evidence or supernatural prescience. Neither can form the basis of a reasonable doubt.

[126] The defence urges upon me the alleged implausibility of Richard’s evidence. Why, I am asked, would Mr. Kerr turn to Richard as his chosen agent to carry out a murder for hire plot given Richard’s relatively poor health and visual handicap? Could Mr. Kerr not have found many more suitable candidates in a prison population?

[127] The answer to this objection is clear even if the Crown’s obligation to demonstrate that an accused was either sensible or clever in his choices of agent is not. Richard was in jail for a relatively minor offence. He expected to be out in plenty of time to carry out the plot and there is no reason why Mr. Kerr would have assumed otherwise. Richard was visually handicapped in a way that prevents him from reading, but not to the extent of preventing him from assisting in the “hot coffee” plot being planned. Further, he had an allegedly reliable friend in Stuart. Richard’s record made him someone that Mr. Kerr might have expected to be interested in the opportunities for theft that the plot presented. Most importantly, Richard was someone that Mr. Kerr had decided to become closer with. Richard may not have been the most qualified person at West Toronto Detention Centre in the relevant time frame to carry out Mr. Kerr’s purpose. He was, however, known to and trusted by Mr. Kerr and apparently willing. There is no evidence that anyone else fit the bill.

[128] For the reasons given, I conclude that the Crown has proved beyond reasonable doubt that Mr. Kerr counselled Richard to commit the offence of murder. He actively solicited and procured Richard’s assistance to murder Tina repeatedly beginning in March 2014. The Crown has also proved beyond reasonable doubt that Mr. Kerr fully intended for Richard to commit that murder. He re-confirmed that intention with the instructions for “Ada” that he gave to “Stuart” on the phone call as well as in numerous conversations held while both were still together in prison. Richard did not in fact carry out the intended murder counselled by Mr. Kerr. Mr. Kerr is accordingly guilty as charged under Count 2 pursuant to s. 464(a) of the Criminal Code.

[129] I also conclude that the Crown has proved beyond reasonable doubt that Mr. Kerr solicited and procured the undercover officer to assist Richard in murdering Tina during the September 4, 2014 phone call. The Crown has also proved beyond reasonable doubt that he fully intended that the undercover officer should commit the intended murder. The undercover officer did not in fact murder Tina. Mr. Kerr is accordingly guilty as charged under Count 3 pursuant to s. 464(a) of the Criminal Code.

(ii) Attempt to obstruct justice

[130] The defence conceded that the Crown had proved Count 1 of the indictment (attempt to obstruct justice). There was no formal guilty plea entered at the time this concession was made. However, the facts proved before me are more than sufficient to enable me to make that determination in any event.

[131] Richard’s uncontradicted evidence that I accept includes the following regarding conduct of Mr. Kerr that tended to obstruct, pervert or defeat the course of justice:

(a) Mr. Kerr sought to persuade Richard to take part in a plan designed to cause or persuade Tina to stay away from court and cause the Crown’s case against Mr. Kerr to collapse; and

(b) Mr. Kerr wrote a letter that he intended Richard would deliver to Tina asking her to stay away for a couple of weeks and not testify in court so as to cause the Crown’s case to fail.

[132] In each of the instances listed, I find that Mr. Kerr intended by his conduct to obstruct, pervert or defeat the course of justice. He was in custody facing charges of harassment based upon a complaint made by Tina and he knew and expected that her evidence on the charges he faced would play a material part in the proceedings.

[133] I am satisfied that the Crown has proved beyond a reasonable doubt that Mr. Kerr is guilty of having willfully attempted to obstruct the course of justice by attempting to dissuade Tina from coming to court contrary to s. 139(2) of the Criminal Code as charged by Count 1 of the indictment.

Disposition

[134] I find Mr. Kerr guilty as charged of Count 1 (attempt to obstruct justice); Count 2 (counselling Richard to commit murder that was not committed) and Count 3 (counselling undercover officer to commit murder that was not committed). A date for sentencing shall be arranged when these reasons are delivered.

S.F. Dunphy J.

Date: December 8, 2017

CITATION: R. v. Kerr, 2017 ONSC 7252

COURT FILE NO.: CR-16-30000096-0000

DATE: 20171208

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Crown

– and –

BRIAN KERR Accused

REASONS FOR JUDGMENT

S.F. Dunphy J.

Date: December 8, 2017

[^1]: Richard repeated the number because of illegible writing the first time

[^2]: D.C. Fernandes characterized as “fair” on cross-examination the proposition that receiving consideration was one of Richard’s motives from as early as April 9, 2014 (before he had his first conversation with Richard) but did not relate a single conversation with Richard where this topic came up before July 10, 2014.