COURT FILE NO.: CR-21-00000216-00BR

DATE: 20210914

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEDAR GUERRA

Jason Gorda and Caolan Moore, for the Crown

Charles Stephen White, for Mr. Guerra

HEARD: August 17 & 18, 2021

Pursuant to section 517(1) of the Criminal Code, an order issued prohibiting the publication in any document or broadcast or transmission in any way of the evidence taken, the information given, or the representations made, and the reasons issued, on this application. this prohibition applies until either the accused is discharged at a preliminary inquiry or his trial ends. this prohibition is subject to an exception that permits a lawyer to circulate these reasons to another lawyer or to rely on them before any court.

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON APPLICATION FOR BAIL

[1] Kedar Guerra is charged with first degree murder, along with Ethan Lee and Antil Nelson. The victim was Clinton Williams. The Crown theory is that Mr. Guerra lured Williams, the victim, to a meeting. Williams then agreed to meet in an underground parking lot. At that point, Lee got out of the car and shot Williams. The Crown alleges that Nelson was the driver, Lee the shooter, and Guerra the person who arranged the meeting.

[2] Mr. Guerra now applies for bail. As murder is a s. 469 offence, pursuant to s. 522 of the Criminal Code he bears the onus. While I am satisfied that the plan is sufficient for Mr. Guerra to meet the onus on the primary ground, I find it does not meet the onus on the secondary ground. Even if Mr. Guerra had met the onus on the secondary ground, he has not met his onus on the tertiary ground. The bail hearing was heard on August 18, 2021. On August 21, 2021, I gave my judgment and indicated that my reasons would follow. What follows are my reasons.

BACKGROUND

[3] The Crown’s case is largely circumstantial against Mr. Guerra. The Crown’s case consists of cell phone records, cell tower records, and surveillance video.[^1]

[4] On December 30 and 31 Mr. Guerra was staying at the Travelodge in Scarborough. He was with his girlfriend, Natasha Nichols. Natasha Laughton was the girlfriend of Clinton Williams. At the preliminary inquiry Natasha Laughton testified that Mr. Guerra called her on December 31, 2019. He asked for Mr. Williams’ cell phone number. Mr. Guerra told Ms. Laughton that he wanted Mr. Williams to get rid of something for him. Ms. Laughton messaged Mr. Williams that Mr. Guerra wanted to talk to him.

[5] On the morning of December 31, 2019, Mr. Guerra’s cell phone called and texted the number associated to Williams. Mr. Guerra’s cell phone also contacted Nelson several times during the day. Nelson, the alleged driver, in turn contacted Lee, the alleged shooter. The three men met at Mr. Guerra’s hotel room later that day. There is strong circumstantial evidence that the three men then got into a silver Mercedes. The silver Mercedes was owned by Nelson’s girlfriend. The silver Mercedes drove from Mr. Guerra’s hotel. It then parked outside 100 Wingarden Court, where Williams lived. Calls were made from Mr. Guerra’s phone to Williams. Williams told his roommate he had to meet someone and help with parking. Williams left his apartment, took the elevator to the ground floor, and approached the silver Mercedes. He had an interaction with the occupants. He then walked toward the parking garage. The silver Mercedes followed. Williams walked down the ramp and opened the parking garage door. Lee got out of the rear driver’s side door and followed Williams. Lee had a handgun. Lee pulled out the handgun and shot at Williams four times. One round entered Williams’ chest. Williams ran away. He made it up to his apartment. He told his roommate he had been shot. His roommate called an ambulance. Williams said that the assailants were in a “silver Benz”. He told an attending police officer “B1”. He died on the way to hospital.

[6] After Lee shot Williams he ran back to the silver Mercedes. The silver Mercedes pulled out of the driveway and down the street at a high rate of speed. Eventually the silver Mercedes went to Scarborough Town Centre. Nelson and Guerra went into the mall. Later Nelson took a taxi back to the Travelodge.

[7] A video compilation of the events of December 30 and 31, 2019 was played at the bail hearing. The following is an outline of the events. I refer to the time of the compilation, rather than the actual time – although I have included the actual times at some points:

TIMELINE/TIME EVENT

DECEMBER 30, 2019

1:08

After getting out of his car, a black Nissan, Guerra checks into the Travelodge, Scarborough Ontario. He is wearing a jacket with a fur hood and sunglasses. The police later executed a search warrant at Guerra’s residence in Sarnia. They found the black Nissan at Guerra’s residence.

7:01

Natasha Nichols, Guerra’s girlfriend, enters the hotel and then goes to their room on the 5th floor along with her mother, child, and friend.

DECEMBER 31, 2019

16:22 (16:43)

Mr. Guerra leaves 130 Bellamy Road. His mother lives at 130 Bellamy Road. He gets into the passenger seat of the black Nissan. Natasha Nichols is driving. Guerra is wearing the coat with a fur collar, white shoes, sunglasses, and a Toronto Raptors NBA Champions hat. The black Nissan drives to the Travelodge.

17:57 (16:50)

The black Nissan passes a silver Mercedes on Progress Road. The Mercedes does a u-turn to follow the Nissan. The Crown alleges that Nelson and Lee are in the silver Mercedes.

20:30 (16:55)

The black Nissan pulls into the parking lot of the Travelodge with the silver Mercedes behind it. Guerra gets out of passenger side of the black Nissan. He waits in the parking lot. Nelson and Lee greet him, and they walk into the Travelodge together. Natasha Nichols walks into the Travelodge.

Guerra, Nelson, and Lee then take the elevator. At the actual time of 16:57 they go into Guerra’s room with Natasha Nichols.

24:30 (17:23)

Nelson, Lee, and Guerra walk out of the hotel room, get into the elevator and walk out of the front door of the Travelodge.

27:22

Nelson and Lee standing at the front entrance of the Travelodge. At the actual time 17:26 Guerra comes out and walks with Lee and Nelson. The three of them walk away together and off camera.

A camera from across the street captures three people walking towards where the silver Mercedes is parked. It is difficult to tell who they are. The Crown theory is that it is Lee, Nelson, and Guerra walking to the silver Mercedes. There is no evidence that Guerra walks back into the Travelodge or gets into another car.

The silver Mercedes then exits the Travelodge parking lot.

29:48 (17:42)

The silver Mercedes parks on Wingarden Court, near the drive leading to the parking garage of 100 Wingarden Court. The silver Mercedes sits there for the next 20 minutes. Guerra’s cell phone communicates with Williams cell phone four times. Guerra’s and Nelson’s cell phones both ping off the tower at 100 Wingarden Court.

Williams tells his roommate that he is going to help someone find parking.

38:03 (17:58)

The cameras at 100 Wingarden show Williams exiting the main lobby and then the building. He is wearing a hoody and a Toronto Raptors jacket. He walks into the parking lot. He makes a phone call and stands near the entrance to the building while he is on the phone. Phone records show a call between the cell phones of Guerra and Williams at this time.

40:03 (18:00)

The silver Mercedes flashes its headlights and Mr. Williams walks over to it. He speaks to the occupants through the driver’s side door for a few moments. Mr. Williams then walks down the lane towards the visitor parking at 100 Wingarden.

40:30

The silver Mercedes drives down the lane towards the visitor parking, following Mr. Williams.

40:51 (18:02)

Williams walks down into the garage. The Silver Mercedes follows and parks on the ramp.

41:08

Lee gets out of the silver Mercedes. He runs down the ramp. He is carrying a handgun in his right hand. Williams moves out of view. Lee points the handgun in the direction Williams has walked and fires four times.

41:27 (18:02)

Williams runs through a door. He had been shot in the back. He makes it back to his apartment and dies.

41:31 (18:02)

Lee runs back up the ramp and gets into the silver Mercedes. The silver Mercedes drives away at a high rate of speed out of the driveway. It drives to the Scarborough Town Centre.

43:25 (18:13)

The silver Mercedes driving into the parking lot of Scarborough Town Centre.

44:59

Two people get out of the silver Mercedes after it parks. It is difficult to identify them because of the distance from the camera. The headlights of the silver Mercedes remain on.

The Crown theory is that Lee remains in the silver Mercedes while Nelson and Guerra walk into the Scarborough Town Centre.

45:57

The two individuals enter the Scarborough Town Centre near the Scotiabank sign. They are too far from the camera to be identified. One appears to be wearing light jeans and white shoes similar to those seen earlier on Guerra.

46:06 (18:18)

Two men resembling Nelson and Guerra appear to walk into Scarborough Town Centre. It is not completely clear that it is them because the angle is from the side and behind, although the person who appears to be Guerra is wearing clothing that matches the clothing he wore earlier. That person walks in the same style as Guerra as seen on tape at the Travelodge.

46:33 (18:19)

Two men resembling Nelson and Guerra appear to walk into Scarborough Town Centre in front of the Suzy store. Again, it is not completely clear that it is them because the angle is from the side and behind. The person who appears to be Guerra is wearing clothing that matches the clothing he wore earlier. That person is walking in the same style as Guerra as seen on tape at the Travelodge.

Further surveillance video shows the two men walking together.

47:46 (18:20)

The two men are walk together in front of the Samsung booth at the Scarborough Town Centre. From this angle there is no question that it is Guerra and Nelson.

Further video surveillance shows Nelson and Guerra at the Scarborough Town Centre at various times, both together and apart.

Later, Guerra’s phone places a call to Natasha Nichols. At the same time, video surveillance shows Guerra on his phone.

Guerra’s cell phone pings off the cell tower at Scarborough Town Centre.

1:08:07

Although from a distance it is difficult to make a full identification, a man resembling Guerra enters a taxi at Scarborough Town Centre.

1:12:03 (18:41)

A taxi pulls into the Travelodge. Guerra gets out of the taxi and walks into the hotel. Video surveillance shows him walking through the lobby and then up to his room on the fifth floor.

[8] Multiple phone calls were made to Williams’ phone from Guerra’s phone throughout the day. The police executed a search warrant at Guerra’s home in Sarnia on January 13, 2020, the day he was arrested. The police seized clothing that matches the clothing worn by Guerra on December 31, 2019.

ANALYSIS

[9] Mr. White, on behalf of Mr. Guerra, presented a plan of release. The plan has the usual conditions, with the following features:

• Mr. Guerra will live with his mother, Diane Guerra, as a residential surety;

• Mr. Guerr’as other sureties will be his sister Ayisha Wallace, his niece Shaniece Guerra, and his friends, Edward Matos and Sereste Adams;

• The combined total amount pledged is $50,500;

• Mr. Guerra will have GPS ankle bracelet monitored by SafeTracks, the government GPS monitoring program;

• Ms. Guerra will install a camera in her residence that will allow her or any other surety to monitor Mr. Guerra; and,

• Mr. Guerra will remain in his residence except when in the company of his sureties or for attendance at court or medical appointments;

[10] Overall, Mr. White argues that plan is solid (“bulletproof” as he called it) and is the best plan that is available. The sureties are responsible people. The combination of ankle monitoring and a house arrest condition should give the court comfort that Mr. Guerra can be controlled.

[11] No person is to be denied bail without just cause: s. 11(e) of the Canadian Charter of Rights and Freedoms. Bail is the normal rule and persons charged with an offence are ordinarily entitled to bail: R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711 at para. 11. A person charged with murder, however, may only be released by a judge of a superior court after they have shown cause why they should be released: s. 522(1) and (2) of the Criminal Code. Thus, a person charged with a reverse-onus offence, such as murder, must show cause why they should not be detained on each of the primary, secondary, and tertiary grounds: Criminal Code, s. 515(10). Although I will deal with each of these in turn, the heart of the case is the tertiary ground.

(a) Has Mr. Guerra met his onus on the primary ground?

[12] Mr. White argues that it is unrealistic to argue that Mr. Guerra is a significant flight risk. He was born and raised in Canada. His passport has been cancelled. He has family ties to Trinidad and has visited from time to time but that is not a reason to deny him bail on this ground. There is no evidence he has the resources to flee the country in the absence of a passport. He has no fail to appear convictions on his criminal record.

[13] Mr. Gorda did not press the point strongly, and I agree. In my view, the plan presented is sufficient to meet the onus on the primary ground.

(b) Has Mr. Guerra met his onus on the secondary ground?

[14] Mr. White argues that the plan is sufficient for Mr. Guerra to meet his onus on the secondary ground. The sureties are responsible people. When combined with GPS monitoring it is not realistic that Mr. Guerra will be able to commit further offences. Moreover, Mr. White argues, Mr. Guerra’s criminal record, while lengthy, is largely confined to property crimes. Many of the entries are dated. His last entry was in 2013.

[15] I disagree. Mr. Guerra has not met the onus on this ground.

[16] Under s. 515(10)(b) of the Criminal Code detention is justified where it is necessary for the protection and safety of the public having regard to all the circumstances, including whether there is a substantial likelihood that the accused will commit a criminal offence. The risk cannot be based on speculation, conjecture, or a mere possibility: R. v. Le, 2006 MBCA 68 at para. 31. The probability that the accused will commit a crime must be significant: R. v. Manasseri, 2017 ONCA 226 at paras. 86-87. As Watt J.A. stated in that case at para. 88, “where, as here, the onus of showing cause for release falls on an accused, that accused must demonstrate not only that his or her detention is not necessary for the protection of the public, but also that it is not necessary for the safety of the public.”

[17] I am satisfied on a balance of probabilities that Mr. Guerra is essentially a professional criminal. His lengthy criminal record commenced as a young offender in 1994 and has continued, more or less continuously, until he was arrested on these charges. His record includes crimes of violence: one conviction for sexual assault; four convictions for uttering threats; and two convictions for assault. Not to put too fine a point on it, but Mr. Guerra is an accused person specifically contemplated by the secondary ground. There is no evidence whatsoever that he is an unfortunate person with a tragic mental illness or difficult drug addiction (or, as we frequently see, both). Unfortunately, the courts see many people who simply can’t help themselves from committing petty crimes and entangling themselves with the justice system: R. v. Zora, 2020 SCC 14 at para. 5. That is not Mr. Guerra.

[18] Judging by his record, Mr. Guerra’s professional criminality started with property crimes and escalated to drug trafficking. His record includes four convictions for possession of property obtained by crime commencing as a young offender; and one conviction for theft under $1000. His drug convictions include two convictions for possession of a schedule II substance for the purpose of trafficking; and two convictions for possession of a schedule I substance for the purpose of trafficking. On his most recent conviction he received a sentence of 38 months, or over three years.

[19] Mr. Guerra also has a record of failing to comply with court orders. He has been twice convicted of breaching bail orders (in 2005 and 2012), and once for breaching a probation order. Those are adult, not youth convictions. I do not accept Mr. White’s argument that these convictions should be given little weight because they are dated. I also do not accept that I should place any weight on the fact that Mr. Guerra’s last conviction was in 2013 and the murder in this case happened more than six years later, at the end of 2019. These convictions must be seen in the context of Mr. Guerra’s continuing pattern of committing criminal offences. Moreover, Mr. Guerra’s 2013 conviction for 38 months means that his warrant expiry date was sometime in 2016 or 2017. I do not know when, or if, Mr. Guerra received parole.

[20] These convictions must also be seen in light of the testimony of Mr. Guerra’s girlfriend, Natasha Nickles, at the preliminary inquiry. She testified that Mr. Guerra sells drugs and is involved in the sale of sexual services.

[21] I turn now to the sureties. While I accept that the sureties would do their best, I have no confidence that they can control Mr. Guerra. I listened carefully to the testimony of Diane Guerra, Mr. Guerra’s mother. The plan is that Mr. Guerra will reside with her at 130 Bellamy Road in Scarborough. She will be the primary residential surety. I have no doubt that she means well. Mr. Gorda, for the Crown, conceded that point. I am sure that she deplores the fact that her son has spent much time in jail and seems to have taken up crime as a means of making his living.

[22] As part of the investigation, the police executed a search warrant at Ms. Guerra’s two-bedroom apartment. Ms. Guerra shares a bedroom in the apartment with her mother. At the time the warrant was executed the police found two loaded, prohibited handguns in the other bedroom. At the time the other bedroom was occupied by David Drysdale, Ms. Guerra’s other son, and a man named Kristoff Smart.

[23] The other proposed sureties are:

• Ayisha Wallace, Mr. Guerra’s sister. Ms. Wallace is employed by Westjet but is currently laid off due to the Covid-19 pandemic. Ms. Wallace has one dated criminal conviction for possession of crack cocaine. That single conviction is not disqualifying. She lives alone in a one-bedroom apartment. She states in her affidavit that she wants to help Mr. Guerra find a better path.

• Edward Matos, who claims to be a close friend of Mr. Guerra. He says they have known each other for two years. He is in a relationship with Ms. Wallace, Mr. Guerra’s sister. Mr. Matos lives in his own, paid-off house in Oakville. He also owns three cars. He, too, says he wants to help Mr. Guerra onto a better path. He is a heavy equipment mechanic but is currently not working due to the pandemic.

• Shaniece Guerra, Mr. Guerra’s niece. Ms. Guerra is a registered practical nurse. She earns about $45,000/year. She lives with her aunt in Ajax and pays rent. She also wants to help Mr. Guerra onto a better path.

• Sureste Adams, who also claims to be a close friend of Mr. Guerra. Mr. Adams is a delivery driver. He lives with his brother in an apartment. He earns about $50,000/year and has some assets. He knows Mr. Guerra through Mr. Guerra’s sister Ayisha. He too wants to help Mr. Guerra onto a better path.

[24] The Crown chose not to cross-examine the sureties other than Mr. Guerra’s mother. As Mr. Gorda put it, the sureties are usually decent people who mean well and there is no point in wasting time by cross-examining them. His point is that the problem is not the sureties, it is Mr. Guerra. I agree with Mr. Gorda on that point. Much time is often wasted at bail reviews and bail hearings cross-examining sureties who are really only peripheral to the plan. A good plan with strong sureties can, in some cases, overcome the onus: R. v. Dang, 2015 ONSC 4254 at para. 48 (although Trotter J., as he then was, was speaking of the tertiary ground the point applies equally to the secondary ground). Often, however, release does not turn on the quality of these peripheral sureties. The key surety here is obviously Diane Guerra, not a potential surety residing in Oakville or Ajax who may only have a superficial relationship with the accused person. All the proposed sureties indicated that they want to help Mr. Guerra find the right path in life. It is not clear to me that they are can. In the case of Shaniece Guerra, she is too young to have had any real influence over her uncle in the past. Clearly Mr. Guerra’s mother and sister have not prevented him from living a life of crime. It is unclear to me how Mr. Matos, who lives in Oakville, and Mr. Adams, who lives in Scarborough, will have any more influence over him.

[25] Judges often hear that because a parent has failed to prevent a child from committing crimes it disqualifies them as a surety – the theory is that because the parent has had no previous influence, they are unlikely to have influence in the future. I cannot accept that. Having failed to prevent or influence a child (or sibling) from falling into a life of crime is not in and of itself disqualifying. If that were the case, then no parent (or other close relative or friend) could ever be a surety for a person with a significant criminal record. That is simply one circumstance that a judge or justice may take into account.

[26] Mr. White filed my own case of R. v. Iglesias, 2020 ONSC 169. In that case, Ms. Iglesias’s mother and step-father were the proposed sureties. Her parents appear to have had little idea of what she had been up to over the previous couple of years. As I pointed out in that case, parenting is not a science. Parents can, and usually do, make mistakes. That does not disqualify them as sureties. Certainly Ms. Guerra is not disqualified merely because her son has strayed – a circumstance that, no doubt, causes her much anguish. The case of Ms. Iglesias, however, is readily distinguished from this case for two important reasons. First, Ms. Iglesias had no criminal record, unlike Mr. Guerra. Second, the police did not seize two guns from the house of the home of the proposed residential surety, as happened in this case.

[27] Respectfully, I am simply not satisfied that the sureties in this case measure up when I consider Mr. Guerra’s criminal past. The main problem is not that Ms. Guerra has failed to be a better influence on her son, although that appears to be the case and is a factor. The main problem is that Ms. Guerra, seems to have been unaware that others in her household had two loaded, prohibited handguns. That does not give me confidence that she is capable of supervising and monitoring someone who is a professional criminal. The non-residential sureties are simply not in a position to make up for Ms. Guerra’s shortcomings as a surety.

[28] Mr. Guerra has been approved by SafeTracks, the government-sponsored GPS monitoring service. In the right case, with the right accused person, GPS monitoring can be a useful and effective part of a release plan. As I have pointed out in other cases, however, GPS monitoring can do nothing to prevent an accused person from committing other crimes. Moreover, as is clear from this case, at least some of Mr. Guerra’s criminal work can be carried out over the phone or internet. In 2021, regular criminals do not need to be Lex Luthor-type masterminds to work remotely. Anyone can do it. GPS monitoring can do nothing to prevent Mr. Guerra’s criminal associates visiting him, or preventing Mr. Guerra from using an anonymous phone, or preventing him from using the Internet for criminal purposes. For that, a strong surety or sureties are required. As much as Ms. Guerra appears to be a well-meaning and decent person, I do not think she is up to the task.

(c) Has Mr. Guerra met his onus on the tertiary ground?

[29] Mr. White argues that detention is not necessary to maintain confidence in the administration of justice. He points again to the circumstantial nature of the evidence, undermining the strength of the Crown’s case. He also points to the nature of the crime – it is a murder, but it is not a particularly heinous one. It does not involve a domestic partner, torture, or other aspects that the courts sometimes characterize as “sheer horror”. Mr. Guerra, in his affidavit, also pointed to what he considers the many failures of the institution to properly deal with the Covid-19 pandemic. Mr. White points to what he calls the “bulletproof” nature of the plan.

[30] I disagree. Mr. Guerra has not met the onus on this ground. A reasonable person would find it very surprising if he were released from custody. A reasonable person would – rightly – lose confidence in the administration of justice.

[31] Pursuant to s. 515(10)(c) of the Criminal Code a judge must consider whether detention is necessary to maintain confidence in the administration of justice having regard to all the circumstances, including:

• the apparent strength of the prosecution’s case,

• the gravity of the offence,

• the circumstances surrounding the commission of the offence, including whether a firearm was used, and

• the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[32] The application of the tertiary ground is not limited to exceptional circumstances, heinous or inexplicable crimes, or certain types of crimes such as murder. The court must balance all of the circumstances, including the factors set out in s. 515(10)(c): R. v. St-Cloud, 2015 SCC 27 at paras. 54, 66-68. The analysis is “not a mere exercise of ticking boxes”; it is far more nuanced: R. v. C.J., 2020 ONSC 1933 at para. 8. The court must adopt the perspective of a reasonable person. A reasonable person is one who is familiar with the basic tenets of our legal system, such as the rule of law and the presumption of innocence. The person need not be a legal scholar but simply an informed member of the public: St-Cloud, at paras. 79-80.

[33] Regarding the strength of the Crown’s case, Mr. White argued that the identification of Mr. Guerra getting into the Silver Mercedes, being present for the shooting, and then getting out of the silver Mercedes is not strong. It is all based on circumstantial evidence.

[34] I cannot agree that the Crown’s case is not strong. Circumstantial evidence can often be more powerful than direct evidence. The Crown’s case is extremely strong. Video reveals that Mr. Guerra met with the driver and the shooter prior to the murder in his hotel room. He then left the hotel and walked towards the Mercedes with them. Based on cell phone tower pings and phone calls the circumstantial evidence is extremely strong that Mr. Guerra was in that silver Mercedes at the time of the shooting. His phone placed a call to Williams while the silver Mercedes was parked on Wingarden Court. The person told Williams to come downstairs. The circumstances strongly suggest that person was Mr. Guerra. Williams did so and spoke to the occupants of the silver Mercedes. He then walked to the garage. After the shooting, the silver Mercedes went to Scarborough Town Centre where video surveillance captures Mr. Guerra and Nelson together. Video captures Mr. Guerra making phone calls. It would be a very remarkable coincidence that Mr. Guerra just happened to have a meeting with Lee and Nelson shortly before the murder, his phone happened to communicate with Williams just before the murder, and then Mr. Guerra just happened to be with Nelson right after the murder.

[35] I turn to the other factors. None of them favour release. Murder, obviously, is the gravest offence known to our law. Regarding the circumstances of the offence, Mr. White argued that these do not include features of stark horror that our courts often encounter. That is true, but an accused person does not need to be a Bernardo or an Olson to justify detention on the tertiary ground. I consider that this murder was planned and deliberate and that a firearm was used – and that the evidence strongly suggests that Mr. Guerra was involved in the planning and deliberation. Obviously, Mr. Guerra is liable to the maximum length of imprisonment known to our law – life imprisonment with no possibility of parole for 25 years.

[36] Finally, I turn to the Covid-19 pandemic. Mr. Guerra’s affidavit sets out several alleged failings by the Toronto East Detention Centre. These include failure to properly supply personal protective equipment, failure to provide hand sanitizer, the failure to clean cells, and the failure to provide information to inmates who may not speak English. Mr. Guerra did admit that he had received one inoculation against the virus. Mr. White argues that given the state of the institution, the Covid-19 pandemic should weigh in favour of release.

[37] The Crown filed the affidavits of Sandra Emmons and John Lawson in response. Ms. Emmons is the Health Manger at the Toronto East Detention Centre. Mr. Lawson is the security manager. They refuted most of the points set out by Mr. Guerra. Both described cleaning procedures, supplies available for cleaning cells, personal toiletries available, and information provided to inmates. Ms. Emmons described the procedures for isolating new cases. Ms. Emmons stated that Mr. Guerra has now received a second inoculation. Ms. Emmons indicated that as of the time of the swearing of her affidavit, there were no cases of Covid-19 at the Toronto East and no outbreak at the facility.

[38] With respect, I cannot agree with the defence argument. Covid is only one factor on the tertiary ground. As Doherty J.A. stated in R. v. Jaser, 2020 ONCA 606 at para. 103:

The presence of COVID-19 is a factor to be balanced in the tertiary ground analysis, especially where there is a viable alternative to actual incarceration, which can go a long way to achieving de facto incarceration outside of the correctional institution. I must, however, reject the contention that post-COVID-19 detention on the tertiary ground will "rarely be justified". Like all other factors in the tertiary ground balancing, the significance of the pandemic depends on the individual case and the evidence provided to the court. On the evidence I have, COVID-19 concerns are relevant in the tertiary ground assessment. They are far from determinative.

[39] It is not necessary for me to resolve the competing factual narratives regarding. Even in an age of the pandemic, some prisoners simply cannot be released without undermining confidence in the administration of justice. Mr. Guerra is one of those prisoners. I am not saying that every professional criminal charged with murder must always stay in custody pending trial. There is no absolute rule to that effect. No category of offences is closed to bail. I also agree that the Crown’s case is often not quite as strong at the trial stage as it appeared at the bail stage: R. v. Blind, 1999 CanLII 12305 (SK CA), [1999] S.J. No. 597 (C.A.) at para. 15. That having been said, it is very difficult to imagine the public maintaining confidence in the administration of justice if Mr. Guerra were released. A reasonable person would have considerable difficulty understanding how a professional criminal, with a lengthy criminal record (including bail and probation violations), and strongly implicated in a “hit”, could be released on bail.

DISPOSITION

[40] The application for bail is dismissed.

Released: September 14, 2021

COURT FILE NO.: CR-21-00000216-00BR

DATE: 20210914

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEDAR GUERRA

REASONS FOR JUDGMENT ON APPLICATION FOR BAIL

R.F. Goldstein J.

[^1]: Justice Bloomenfeld of the Ontario Court of Justice heard the preliminary inquiry. Her thorough summary of the evidence was extremely helpful.