COURT FILE NO.: CR-21-30000-302
DATE: 20220525
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KEDAR ABDL GUERRA, ETHAN LOU LEE and ATNEIL FITZROY NELSON
Jason Gorda and Caolan Moore, for the Crown
C. Stephen White and Kristianne C. Anor, for Kedar Abdl Guerra
Christian Angelini, for Ethan Lou Lee
Philip Klumak and Michael Moeser, for Atneil Fitzroy Nelson
HEARD: May 3 & 9, 2022
REASONS FOR RULING
M. Dambrot J.:
[1] Kedar Guerra, Ethan Lee and Atneil Nelson are being tried by me, with a jury, on an indictment alleging that on December 31, 2019, at the City of Toronto, they committed the first degree murder of Clinton Williams. All three accused were arrested on January 13, 2020. Following his arrest, Nelson gave a video-recorded statement to the police. The Crown proposes to tender the statement in evidence at trial.
[2] Nelson concedes that the statement was voluntarily made, and admissible in evidence, but brings an application to have certain portions of the statement redacted, to which the Crown largely agrees.
[3] Lee, supported by Guerra, brings a separate application for an order that certain portions of the statement be redacted, failing which they seek an order severing their trial from the trial of Mr. Nelson.
The Crown’s Case
[4] Clinton Williams was shot in the chest on December 31, 2019 at 6:03 p.m. and died shortly thereafter. He was residing with Bernard Mulzac in unit 313 of an apartment building at 100 Wingarden Court in Scarborough at that time. A significant portion of the Crown’s case against the accused consists of facts that the Crown hopes to establish through the production of phone records and surveillance video. In the remainder of my description of the Crown’s case, I will assume that these facts have been proved. Needless to say, it will be for the jury to determine whether the Crown has succeeded in establishing them.
[5] During the morning of December 31, 2019, Guerra and Lee communicated with each other on their cell phones. Guerra called Nelson before and after his calls to Williams. Nelson was in touch with Lee during the afternoon of December 31, 2019.
[6] Later in the afternoon of December 31, 2019, Nelson picked Lee up in a silver Mercedes Benz (“Benz”) wagon that he had borrowed from his girlfriend. Nelson and Lee then proceeded to the Travelodge Hotel in Scarborough in the Benz. The hotel is a short distance from the deceased’s apartment. Nelson and Lee were greeted by Guerra in the hotel parking lot. At 4:57 p.m., the three men entered a hotel room in the Travelodge along with Guerra’s fiancée.
[7] At 5:01 p.m., while he was in the hotel room, Guerra called the deceased. The call lasted 91 seconds.
[8] Nelson, Lee and Guerra left the hotel room at 5:24 p.m., got into the Benz and departed from the hotel.
[9] At 5:42 p.m., the Benz was on the street outside the deceased’s apartment building. It was parked and remained in one place for approximately 20 minutes. Guerra’s phone records place him in the area of William’s apartment building at the time and show that he exchanged phone calls with Williams at 5:31, 5:41, 5:53, and 5:59 p.m.
[10] Mulzac and Williams were together in their apartment at the time. Mulzac believed that Williams was planning to meet with someone. During the period of time that Guerra was exchanging calls with Williams, Mulzac heard Williams talking on the phone with someone who had a male voice about finding a place to park. After the last of the phone calls, Williams left the unit.
[11] At 6:01 p.m., Williams exited his building, walked over to the Benz, which was still parked on the street, appeared to speak to someone through the driver’s side window, and then walked towards the underground parking garage of his building. The Benz followed him. Williams opened the door of the underground parking garage, obviously intending to permit the Benz to enter.
[12] As the garage door opened, the Benz pulled onto the garage entrance ramp and then stopped halfway down. A person matching Lee’s description, wearing clothing that matched the appearance of the clothing Lee was wearing at the Travelodge 45 minutes earlier, exited the Benz from the rear driver’s side door. A gun was visible in his hand approximately 3 seconds after he got out of the vehicle. He fired four shots in the direction of Williams at 6:03 p.m., one of which penetrated Williams’ back and entered his chest. The shooter then got back into the Benz. The shooter was outside the vehicle for less than 20 seconds.
[13] After the shooting, the Benz drove away at a relatively high rate of speed. Despite being shot in the chest, Williams was still alive, and was able to enter the stairwell of the garage and make his way back to his apartment, where he told Mulzac that he had been shot by the man driving the silver Benz wagon.
[14] The Benz was observed in the parking lot of the Scarborough Town Centre at 6:13 p.m., and Guerra and Nelson were inside the Centre at 6:18 p.m.
[15] Nelson and Lee partied together at a club later that evening (the evening of New Year’s Eve), hung out together on January 5, 2020, and were arrested together at Nelson’s residence on January 13, 2020.
The Post-Arrest Statement Made by Nelson to the Police
[16] The Crown proposes to tender Nelson’s statement to establish the following facts admitted by Nelson in that statement:
• Nelson identified his phone number as being 437-234-8341, which corresponds to the phone number of a Samsung phone he had with him upon arrest.
• Nelson is familiar with the building at 100 Wingarden Court, including the underground parking lot, because he had been there “a lot of times” and knew there were surveillance cameras in the building.
• Nelson identified himself as being at the Travelodge Hotel on New Year’s Eve.
• Nelson was the driver of the Benz, which belonged to his girlfriend, at the relevant times on December 31, 2019.
• Nelson identified himself in still photographs taken from the video surveillance recorded after the shooting at the Scarborough Town Centre.
[17] The Crown also proposes to tender Nelson’s statement to establish the following alleged lies he told to police, which in turn are relevant to his state of mind at the time of the shooting:
• Nelson stated that he did not hear anything about the death of Clinton Williams on the news when in fact his phone records show he checked the news several times.
• Nelson stated that he barely knew Lee, having only met him about 10 times; that Lee was a friend of Guerra’s whom he only saw with Guerra and Guerra was “nobody to me”; that after the shooting he dropped Lee off, implying he did not see him again that evening; and that he was scared of Lee. The Crown says that this is all contradicted by the following:
o Nelson and Lee drove to the Travelodge together in the Benz – Lee was not picked up by Guerra.
o Phone records show 39 cell phone communications between Lee and Nelson between December 5 and 31, 2019, but no communication between Guerra and Lee.
o Videos obtained from Nelson’s phone show Nelson and Lee hanging out together on New Year’s Eve and again at Nelson’s residence on January 5, 2020, and Nelson and Lee were arrested together at Nelson’s residence on January 13, 2020.
• Nelson claims that he understood he was to drive Guerra to meet Williams to buy marijuana, and that the marijuana was still at his house. No marijuana was located in his residence.
[18] Where the Crown seeks to tender portions of Nelson’s statement that relate to Guerra and Lee, it does so only on the basis that it is relevant to contradict Nelson’s assertions about his interactions with them after the shooting and to support the Crown’s position that he was aware of a plan to kill Williams. Specifically, Nelson insisted in his statement that he had no prior knowledge of the plan to carry out the shooting and that he did not know Lee well. The Crown says that this is undermined by the video evidence of him with Guerra at the Scarborough Town Centre right after the shooting and of him partying with Lee later that evening.
The Redactions Sought by Nelson
[19] As I indicated, Nelson concedes that the statement was voluntarily made and admissible in evidence, subject to certain redactions, specifically, of:
All references to his having an outstanding charge of assault, to his being released with sureties and to his having ongoing trial dates;
A reference to his being arrested “100 times”; and
Suggestions that he could provide the police with the location of weapons held by Lee, including the murder weapon, in return for a consent to his release from custody.
[20] In its factum, the Crown included several charts that helpfully identify the various redactions that the Crown understands to be explicitly or implicitly sought by the parties. I have lettered these charts for ease of reference and altered them slightly. In the first of these charts, the Crown identified the following sections of Nelson’s statement that refer to his prior charges, his being on bail at the time of this arrest, and his familiarity with the justice system. The Crown takes no issue with their redaction, on the basis that they have little or no probative value:
Page No(s).
A. Summary of statements relating to bail or prior arrests
15-16
References to his surety and being on bail
21
Det. Dunkley saying “you’ve been arrested 100 times”
45
Nelson mentioning his curfew
46
Nelson mentioning a bail compliance check
47-48
Nelson mentioning “sneaking out” to the club when on bail
48
Det. Dunkley mentioning Nelson’s bail
48-49
Nelson talking about sneaking out on bail to go to the club
83
Det. Dunkley talking about “knowing the deal” and having been “through it” before
89
Nelson saying it is not his first time in jail
95
Nelson mentioning his outstanding charges
96
Nelson mentioning being given a jacket in custody before
149
Nelson referring to someone as his surety
[21] Crown counsel also agrees that insofar as the following proposed redactions are general references to weapons or firearms in Nelson’s statement, they are prejudicial and, at this time, have little probative value and should be redacted:
Page No(s).
B. Summary of statements relating to Weapons or Firearms
138
Lee’s nickname is “nine” [Lee, and not Nelson, asked for this redaction]
140-1
Nelson knew where Lee had guns [Lee and Nelson both asked for this redaction]
145-146
Nelson said that the gun is likely to be where the rest of the guns are [Lee and Nelson both asked for this redaction]
150
Nelson said that if the police got him bail, he would send them to where the guns were [Lee and Nelson both asked for this redaction]
[22] However, Crown counsel argues that unlike Nelson’s offer to provide guns in general, his offer to produce the murder weapon should not be redacted. The relevant exchange, which is found at page 150 of the transcript, is as follows:
DUNKLEY: I want this one [referring to the gun used in the shooting].
NELSON: Hm?
DUNKLEY: I want this one.
NELSON: I can get you that too.
DUNKLEY: That's the one I want right now.
NELSON: I can get you that too.
DUNKLEY: I mean, ne-, listen…
NELSON: Ge-, I’ll get you that.
DUNKLEY: I just need to-, well, you know where it is right now?
NELSON: You get me bail…
DUNKLEY: Do you know-, I can’t make that promise. (Inaudible), I can’t-, I can’t make that promise.
[23] The Crown submits that no prejudice would be occasioned by the admission of this evidence. Nelson’s offer to provide the murder weapon to the police would not give rise to any impermissible reasoning by the trier of fact. Specifically, it would be permissible for a trier of fact to draw the inference that Nelson’s offer is evidence that he had more knowledge of the murder than he was willing to admit to the police in his statement. I note that the Crown has proposed some additional editing of this portion of the statement to ensure that there is no suggestion that Nelson has knowledge of any guns beyond the murder weapon.
[24] Although they are not the subject of Nelson’s Application, the Crown proposed the following edits, which relate to private information that is without relevance.
Page No(s).
C. Summary of statements relating to private or irrelevant information
15-17
Locations where Nelson’s family and children live
21-22
The name of the company Nelson works for
150
The location where one of Nelson’s children lives
The Redactions Sought by Lee and Guerra
[25] In his statement, Nelson initially denied any knowledge or involvement in the homicide. However, after being shown various still images from the video surveillance, he admitted his involvement as the driver of the Benz but denied having any foreknowledge of the shooting until the last portion of his statement. He said that right before Lee exited the vehicle, Guerra told Lee to “slap him,” following which Lee exited the vehicle and shot Williams.
[26] Nelson also made several comments to the effect that Lee is extremely dangerous, and that he would kill Nelson for making a statement against him. He said that Lee is heavily involved with firearms and may still have the murder weapon. He also said that Lee’s nickname is “Nine,” which, according to counsel for Lee, could be understood as a reference to nine-millimetre or TEC-9 firearms.
[27] Lee and Guerra argue that the impugned comments, which are inadmissible hearsay as against them, are so prejudicial to them that it would be unfair not to edit them, failing which their trial should be severed from that of Nelson.
[28] More specifically, Lee and Guerra focus on the following parts of the statement as requiring editing:
Nelson’s description of Guerra directing Lee to “slap” Williams, following which Lee exited the vehicle and shot Williams (pp. 120-122; 126-7; 133);
Nelson’s comments that Lee is dangerous and will kill Nelson for making a statement implicating him, which the Crown refers to as comments relating to Nelson being afraid of Lee (pp. 79-80; 90; 147-8);
Nelson’s comments that Lee is heavily involved in firearms and may still have the murder weapon (pp. 140; 145-146); and
Nelson’s comment that Lee’s nickname is “Nine” (p. 138).
[29] The concerns in item 3 relating to paragraphs 140 and 145-6 are listed in Chart B above. I have already noted that the Crown concedes that Nelson’s comments that Lee was heavily involved with firearms and is dangerous should be redacted, but submits that Nelson’s comments that Lee may still have the murder weapon should not be redacted.
[30] In addition, in their factum, Crown counsel included the following two charts that appear to capture and even expand on the concerns raised by Lee and Guerra in items 1 and 2 relating to Lee being the shooter under Guerra’s direction and Nelson being afraid of Lee:
Page No(s).
D. Summary of statements relating to Nelson being afraid of Lee
77, 79, 80
Nelson suggested that cooperating with the police would put his life in jeopardy
90
Nelson said that he’s afraid of the shooter
147-148
Nelson indicated that Lee is dangerous
149
Nelson wanted bail because he was scared for his family’s safety
Page No(s).
E. Summary of statements relating to Lee being the shooter
101
Nelson implied that it was Lee who got out of the car “and went and did his shit”
102
Nelson said that someone (not clear if it was Guerra or Lee) said, “I’m gonna slap him”; ‘we’re gonna slap out”
103
Nelson implied that it was Lee who hopped out of the back and “did his shit”
121
Nelson identified Lee as the shooter in a photograph
122
Nelson said that Guerra told “young boy” [Lee] to hop out and take care of it; and the young boy got out and shot the guy
126
Nelson said that Guerra turned to Lee and said, “yo, we’re slappin him, eh?”
127
Nelson said that Guerra said, “we’re slappin him” and young boy (Lee) did not even hesitate
133
Nelson said that the guy (not clear who) “was like ‘yo, I’m gonna slap him’”
142
Nelson said that he was there to sell weed and was not told that a man was gonna get slapped
[31] Guerra adopts Lee’s concerns and raises an additional concern about Nelson’s comments relating to a prior drug transaction between Guerra and Williams or Williams’ cousin involving a “nine-pack” of heroin, which might be viewed as a motive on the part of Guerra for the murder of Williams. The Crown prepared a chart summarizing these and related comments, and agrees that they should be redacted when the Crown adduces the statement in evidence since they are not based on Nelson’s direct observations, while reserving any right the Crown may have to cross-examine Nelson on this portion of his statement in the event he testifies at his trial:
Page No(s).
F. Summary of statements relating to prior drug deal with Williams and Guerra
130-132
Nelson told a story about Guerra selling a nine-pack of heroin
135-136
Nelson made further comments about heroin
138
Nelson made further comments about the “nine-pack” and prior drug deals between Guerra and Williams
[32] In relation to the parts of the statement that the Crown does not concede should be redacted, Lee asserts, and Guerra adopts, the following in support of their argument: Nelson’s statement provides him with a “full defence” to the charges; Nelson is unlikely to testify because the statement provides him with a full defence and because he has a criminal record; the defences of the accused are not “cut-throat”; no other Crown witness will confirm that Lee is the shooter; and the portions of Nelson’s statement that Lee challenges have “little-to-no probative value” for the Crown.
[33] Crown counsel takes no issue with redacting the portions of Nelson’s statement in which he asserted that Lee or Guerra have access to firearms generally. The Crown agrees that these vague assertions are not only inadmissible against Lee and Guerra, but have no probative value in relation to Nelson.
[34] The Crown disagrees with Lee’s characterization of the impact of the remaining portions of Nelson’s statement. Crown counsel says that Nelson’s statement does not provide him with a “full defence”. The lies told by Nelson in his statement are highly probative of his knowledge, motive, and intentions at the time of the shooting. His lies are harmful to his defence and beneficial to the prosecution. Among the most probative aspects of this evidence are his lies about distancing himself from the plan that evening and his relationship with Lee, both of which are contradicted by his behaviour and the videos recovered from Nelson’s cell phone. Nelson lied to the police and sought to distance himself from the murder by saying he was not part of any plan and that he feared Lee.
[35] In addition, Crown counsel points out that we do not know whether Nelson will testify. They say that the facts that contradict Nelson’s statement cry out for an explanation. The Crown also argues that Nelson’s criminal record is not of the sort that would, as a matter of logic and human experience, prevent someone from testifying in his or her own defence when being tried for first-degree murder.
[36] Further, the Crown says that while it is true that no other “witness” identifies Lee as the shooter, the case against Lee as the shooter is overwhelming and, in many ways, more compelling (and less subject to challenge) than witness testimony. Lee is not alleging that any third-party suspect carried out the shooting.
[37] Finally, the Crown says that while Lee asserts that there will be no “cut-throat” defences in this case, it cannot be said at this stage how the trial proceeding will play out. No alternative defence theories have been articulated to date.
What Remains in Issue?
[38] There is no reason for me to refuse to accept the concessions made by the Crown. As a result, only the following redactions proposed by the accused remain to be assessed:
Nelson:
[39] The only redactions proposed by Nelson that the Crown resists are the comments at page 150 of the transcript set out above relating to Nelson’s offer to produce the murder weapon.
Lee:
[40] The redactions proposed by Lee that the Crown resists are:
The comments relating to Lee being the shooter (chart E);
The comments relating to Nelson being afraid of Lee (chart D); and
Nelson’s comments that Lee may still have the murder weapon (chart B).
Guerra:
[41] The only redactions proposed by Guerra that the Crown resists are the comments relating to Guerra directing Lee to get out of the vehicle and shoot Williams, which are also found in chart E.
Analysis with Respect to the Applications for Redactions
The General Principles
[42] A post-arrest statement of an accused made to a person in authority is admissible in evidence against that accused if the statement is found to have been made voluntarily, subject to editing of those parts of the statement that are irrelevant or unnecessarily prejudicial to the maker. In a joint trial, the statement of one accused is not evidence against a co-accused, and the statement may be also edited to eliminate unnecessary prejudice to a co-accused: see R. v. Olah (1997), 1997 CanLII 3023 (ON CA), 33 O.R. (3d) 385 (C.A.), at paras. 40-50, leave to appeal refused (1998), [1997] S.C.C.A. No. 549.,
[43] In R. v. Grewall, 2000 BCSC 1451, Romilly J. adopted from Davies J. in R. v. Leland (9 June 1997), Vernon, 30061 (B.C.S.C.), at para. 36, a useful summary of the law as it applies to the editing of voluntary statements.. This summary was in turn adopted by D.S. Ferguson J. in R. v. Jacobson, 2004 CanLII 5911 (Ont. S.C.), at para. 4, appeal dismissed R. v. Hall, 2010 ONCA 421, 267 O.A.C. 35, who quoted the summary with the case references omitted, as follows:
(a) Editing of a statement may at times be necessary because of the inclusion of irrelevant or unnecessarily prejudicial evidence but such editing must not affect the tenor of a relevant statement.
(b) Edited statements must be free from unnecessary prejudice, but the remaining portions must retain their proper meaning.
(c) The jury should have as much as possible of a statement said to constitute an admission in order to place it into context for the purpose of determining its truth.
(d) Even though substantively irrelevant, contextual evidentiary relevance may allow admission.
(e) The extent of the admissibility of that contextual evidence and probative value must still, however, be weighed and balanced against its prejudicial effect.
[44] I adopt this statement of the law.
[45] D.S. Ferguson J. went on to make the following additions to this summary, which I also adopt, at para. 5:
(a) Editing is not to be limited solely to evidence that is irrelevant or which has no probative value. Trial judges may edit out evidence that has probative value if they conclude that its prejudicial effect is greater.
(b) In balancing probative value against prejudicial effect trial judges can consider whether the evidence adds much to the proof of the same issue by other expected evidence: R. v. Kanester, 1966 CanLII 544 (BC CA), [1966] 4 C.C.C. 231 (B.C.C.A.) at 247.
[46] I also adopt the more recent comments of Baltman J. in R. v. Sidhu, 2011 ONSC 4577, where, after acknowledging that a jury must be instructed that the statement of one accused must not be considered in respect of another accused, she stated, at paras. 7-8:
[7] However, it is also recognized that despite such an instruction, there may be cases where the impugned comments are so prejudicial to a co-accused that it would be unfair not to edit them: R. v. Olah, 1997 CanLII 3023 (ON CA), [1997] O.J. No. 1579 (C.A.), paras. 40-50. Since Olah several cases have summarized or commented upon the applicable law: R. v. Grewall, 2000 BCSC 1451, [2000] B.C.J. No. 2386 (S.C.), paras. 36-40, R. v. Jacobson, [2004] O.J. No. 932 (S.C.) at para. 4, and R. v. Papadopoulos, [2006] O.J. NO. 5409 (S.C.).
[8] From my review of those cases the governing principles appear to be the following:
(1) The trial judge has the discretion to edit statements which include irrelevant or prejudicial evidence against a co-accused;
(2) Even where evidence has probative value it may be edited out if its prejudicial effect is greater;
(3) However, such edits must not change the meaning of the statement in a material manner, either by removing something of legitimate value to the Crown in its case against the declarant or by removing something of exculpatory value to the declarant; and
(4) In deciding whether to edit a statement to protect a co-accused, the Trial Judge must bear in mind that the jury will be instructed on the proper use of the statement and that we expect jurors to follow such instructions.
Application of the Principles
[47] In my view, the Crown has been most reasonable in agreeing to many of the redactions sought by the accused. The Crown argues that all the remaining redactions sought by the accused are relevant to the issues in this trial, and in each case, their probative value outweighs their prejudicial effect. I will consider them in turn, except that I will consider together Lee’s proposed redaction of Nelson’s comments relating to Lee being the shooter and Guerra’s proposed redaction of Nelson’s comments relating to Guerra directing Lee to get out of the vehicle and shoot Williams.
Nelson:
[48] Nelson’s offer to produce the murder weapon tends to confirm that he was present at the murder, was driving a car from which the murderer emerged, was aware of what happened and, most importantly, despite his claim that he was not aware that a shooting was to take place, was sufficiently involved to be trusted with knowledge of what became of the murder weapon. I agree with Crown counsel that it would be permissible for a trier of fact to view his offer as evidence that he had more knowledge of the murder than he was willing to admit, and in turn supports an inference that he was a party to the murder. No possible prejudice flows to Nelson from this evidence. It gives rise to neither moral prejudice nor reasoning prejudice. It may operate unfortunately for Nelson, but not unfairly.
Lee:
- Nelson’s comments relating to Lee being the shooter and Guerra directing Lee to get out of the vehicle and slap Williams (chart E)
[49] Lee says that Nelson’s comments relating to Lee being the shooter are not only inadmissible against him but have no probative value for the Crown as against Nelson. Guerra adopts Lee’s argument in relation to Nelson’s comments relating to Guerra directing Lee to get out of the vehicle and slap Williams. Lee says that admitting Nelson’s statement does nothing more than provide Nelson with a full defence. I do not agree.
[50] Nelson’s brief comments about Lee and Guerra have to be viewed in context. In this part of his statement, Nelson was providing his account of the shooting, including what took place in the Benz immediately before, at the time of and immediately after the shots were fired. While Nelson denied that he had any foreknowledge of the shooting, his statement is inculpatory in many respects. He effectively admitted that he committed the actus reus of the offence. He drove the shooter to the general location of the murder. He followed the victim down the driveway to the underground garage where the shooting took place. He brought the vehicle to a stop on the ramp, allowing the shooter to get out of the vehicle and shoot Williams and allowing the three men to make a quick getaway. This account of what took place is obviously highly relevant evidence for the Crown in relation to Nelson.
[51] In addition, I agree with the argument advanced by Crown counsel that this part of the statement is relevant and admissible for a second reason. It is open to the Crown to argue that Nelson’s efforts in his statement to distance himself from Lee and from the plan to murder Williams are lies, having regard to other evidence of his behaviour (including videos recovered from his cell phone) that suggest otherwise. If the jury concludes that these are lies, then they are probative of his knowledge, motive, and intentions at the time of the shooting, and are harmful to his defence and beneficial to the prosecution.
[52] Unquestionably, false or misleading statements made by an accused can be circumstantial evidence of guilt and can be the subject of an after the fact conduct instruction to the jury. But before leaving such an instruction with the jury, the trial judge must be satisfied that the statements relate to a material issue and that there is independent evidence of fabrication: R. v. Clifford, 2016 BCCA 336, 407 D.L.R. (4th) 65, aff’d 2017 SCC 9, [2017] 1 S.C.R. 164; R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, leave to appeal refused, [2010] S.C.C.A. No. 263; and R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A). While I would not wish to be taken to have finally decided how I will charge the jury on this issue at this pre-trial stage, I am presently of the view that the test is met.
[53] As a result, for these reasons, I am satisfied that this part of Nelson’s statement has significant probative value.
[54] Lee and Guerra argue that this evidence could be stripped of the references to them without undermining its probative value for the Crown. I do not agree. In my view, it would be impossible for the Crown to fully develop either the inculpatory aspects of Nelson’s narrative or the import of its allegedly false aspects if it was stripped of the mention of the involvement of Guerra and Lee in the events in the Benz on the way to, at the time of and immediately after the shooting.
[55] In my view, removing the identity of the two other men in the Benz and their roles as shooter and the speaker of the words that allegedly prompted the shooting would result in a bizarre and fragmented story and deprive it of its potential credibility in relation to Nelson’s role in the events surrounding the shooting. In particular, it would make no sense to the jury that having implicated himself in the crime in this way, Nelson was then unable to identify the shooter or to explain the reason for a third man to be in the Benz. As D.S. Ferguson J. put it in Jacobson, “The jury should have as much as possible of a statement said to constitute an admission in order to place it into context for the purpose of determining its truth.”
[56] Of particular pertinence to this issue is the decision of the Court of Appeal in R. v. McLeod (1983), 1983 CanLII 3605 (ON CA), 6 C.C.C. (3d) 29. In that case, the three accused, McLeod, Pinnock and Farquharson, were jointly tried for attempted murder in the course of a robbery. Pinnock gave a statement to the police in which he admitted that he fired a gun at the victim, albeit accidentally, and that he was carrying it at the behest of Farquharson. The trial judge found that the statement was made voluntarily and admitted it in evidence. Farquharson asked the trial judge to redact the reference to him from the statement. The trial judge refused. His decision was affirmed on appeal. Grange J.A. stated, at p. 34:
Editing of statements is often resorted to with advantage to blot out totally immaterial and prejudicial portions of an accused's statement. I am satisfied, however, after perusing the statements here, that no benefit could result from an attempt to delete from each statement the names of the other accused. In my view, such a course, which would obviously mar the flow of language, would only arouse the suspicion and speculation of the jury. To make sense of them and to render justice, the statements, if admitted at all, had to be admitted whole.
[57] I reach the same conclusion here. I acknowledge that in this joint trial, admitting evidence against Nelson that also implicates Lee and Guerra in the offence charged but is inadmissible against them could cause reasoning prejudice. However, I am confident that a strong instruction about how this evidence may and may not be used, and in particular making it clear that it may not be used to implicate Lee or Guerra in the commission of the murder of Williams, will eliminate that prejudice. That is particularly the case because there is admissible evidence that will be led in this trial that can carry the weight of implicating Lee and Guerra in the murder.
- The comments relating to Nelson being afraid of Lee (Chart D)
[58] Although the Crown framed the items in Chart D as comments relating to Nelson being afraid of Lee, that description is not entirely accurate.
[59] In Nelson’s comments at pages 77, 79 and 80, as I read them, he simply said that he believed that cooperating with the police in a murder investigation would put him in jeopardy. That would come as no surprise to anyone. I see no reason to redact these comments. They bear on the credibility of his account of his role in the events surrounding the shooting, assist in making sense of it and have little or no prejudicial effect.
[60] In Nelson’s comments at page 90, he simply said that “of course” he was afraid of the shooter. Any rational person would be afraid of a man that he watched shoot and kill another person. I see no reason to redact this comment. It also bears on the credibility of his account of his role in the events surrounding the shooting, assists in making sense of it and has little or no prejudicial effect.
[61] In Nelson’s comments at pages 147-8, he simply said that if he were to cooperate with the police, he would have to worry about Lee; he learned this from “that night”. Given that Nelson said that Lee shot Williams “that night”, it stands to reason, and again comes as no surprise, that he would say that he learned from “that night” that he has to worry about Lee. For the same reason as the comments at pages 77, 79, 80 and 90, I see no reason to redact the comments at pages 147-9, with one exception.
[62] At the very end of page 147 the interviewer asked Nelson if Lee had killed other people. Nelson’s response was inaudible in part but, apparently, was “not that I know.” This question, and the answer at line 1 to 2 on page 148, are probative of nothing at all, and prejudicial to Lee since they leave open a suggestion that he might have killed other people. It must be redacted and, in fact, the Crown proposed making these redactions in its factum without prompting.
[63] In Nelson’s comments on page 149, as I understand them, he said that if it became known that he cooperated with the police, the whole neighbourhood would be at his house, presumably meaning, once again, that it would place him in jeopardy. Again, for the same reasons, I see no reason to redact these comments.
Nelson’s comments that Lee may still have the murder weapon (Chart B)
[64] As I have already indicated, Crown counsel agrees that insofar as Nelson’s comments on these pages are general references to Lee being involved in weapons or firearms other than the firearm used to shoot Williams, they are prejudicial and, at this time, have little probative value and should be redacted. But insofar as they relate to Nelson suggesting that Lee might still have the gun and offering to tell the police where the gun is in exchange for bail, they have probative value in relation to Nelson and, in my view, occasion no additional risk of reasoning prejudice against Lee. If a strong instruction, one that makes it clear that Nelson’s naming of Lee as the shooter may not be used to implicate Lee or Guerra in the commission of the murder of Williams, will eliminate any potential prejudice flowing from that evidence, then the same must be the case with respect to Nelson saying that Lee may still have the murder weapon. I see no reason to redact these comments.
Guerra:
- Nelson’s comments relating to Guerra directing Lee to get out of the vehicle and slap Williams (chart E)
[65] I have already considered this evidence when I considered the proposed redaction of Nelson’s comments relating to Lee being the shooter and declined the proposal that it be redacted. I need say nothing more.
Summary:
[66] I decline to order any redactions of Nelson’s statement beyond those agreed to by Crown counsel. On May 23, 2022, Crown counsel provided me with a version of the statement with all the redactions that the Crown agrees should be made blacked out for ease of reference. As is apparent from the foregoing, that version also reflects my view of the redactions that should be made. If there remains any dispute about anything in that version that is not redacted, counsel may raise it with me. This is not an invitation to reargue the motion, but simply an effort to ensure that the spirit of my ruling is complied with and that nothing was missed.
SEVERANCE
[67] Lee and Guerra have applied for severance if their application for redaction of certain portions of Nelson’s statement should fail, as it has. The sole basis for their application is that the Crown intends to adduce in evidence Nelson’s post-arrest statement to the police in which he implicates Lee and Guerra in the shooting of Williams and expresses some degree of fear of Lee for having done so. Nelson’s statement is, of course, inadmissible against Lee and Guerra. The Crown resists the application for severance.
[68] Section 591(3) of the Criminal Code, R.S.C. 1985, c. C-46 provides that where there is more than one accused, the court may order one or more of them be tried separately where it is satisfied that the interests of justice so require.
[69] The approach that a trial judge must take in considering an application for severance is well known.
[70] In R. v. Torbiak and Gillis (1978), 1978 CanLII 2266 (ON CA), 40 C.C.C. (2d) 193, at p. 199 (Ont. C.A.), the Court stated, “The rule is well established that prima facie where the essence of the case is that the accused were acting in concert, they should be jointly indicted and tried”. This statement was quoted with approval by Fish J., for the Court, in R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384, at para. 48. At para. 47 of Chow, Fish J. also reaffirmed what was said about joint trials and severance in R. v. Crawford, 1995 CanLII 138 (SCC), [1995] 1 S.C.R. 858. He stated:
Sopinka J. referred to the “uniform stream of authority in this country in favour of joint trials” (para. 19). Speaking for eight members of the Court, he set out compelling policy reasons for joint trials for co-conspirators despite the inevitable “double bind” that results:
There exist ... strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly. The policy reasons apply with equal or greater force when each accused blames the other or others, a situation which is graphically labelled a “cut-throat defence”. Separate trials in these situations create a risk of inconsistent verdicts. The policy against separate trials is summarized by Elliott, supra, at p. 17, as follows:
There is a dilemma here which could only be avoided by separate trials. But separate trials will not be countenanced because, quite apart from the extra cost and delay involved, it is undeniable that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion. If each alleged participant is tried separately, there are obvious and severe difficulties in arranging for this to happen without granting one of them immunity. In view of this, in all but exceptional cases, joint trials will be resorted to, despite the double bind inevitably involved.
Although the trial judge has a discretion to order separate trials, that discretion must be exercised on the basis of principles of law which include the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused. [Emphasis in original.]
[71] As Doherty J.A. put it in R. v. Savoury (2005), 2005 CanLII 25884 (ON CA), 201 O.A.C. 40 (C.A.), at para. 22,
A trial judge may order severance of the trial of a co-accused only if satisfied that “the interests of justice so require”: Criminal Code, s. 591(3). The interests of justice encompass those of the accused, the co-accused, and the community as represented by the prosecution. The trial judge must weigh these sometimes competing interests and will direct severance only if the accused seeking severance satisfies the trial judge that severance is required. To satisfy that burden, the accused must overcome the presumption that co-accused who are jointly charged and are said to have acted in concert, should be tried together.
[72] This case falls squarely into the category of cases in which strong policy reasons, which I will not repeat, favour a joint trial. Not only are the accused persons charged with offences arising out of the same event but, most importantly, the essence of the case is that the accused were acting in concert. To secure a severance, the accused must satisfy me that a joint trial will work an injustice to them. They have failed to do so.
[73] The single consideration raised by the applicants in this case that favours severance is the existence of evidence that is admissible against Nelson but not against them. Given that the evidence of concern will occupy a small amount of trial time and that there is ample other evidence that implicates Lee and Guerra (indeed, it appears to me that the Crown’s case against Nelson is the weakest), I am confident that a strong mid-trial direction followed by a similar strong direction in the charge at the end of the case will eliminate any risk that the jury will misuse the evidence. I bear in mind that the instruction on this issue will be a very simple one. The jury will easily understand it and will not be confused about their duty. I am confident that they will follow it.
[74] The application for severance is refused.
Disposition
[75] The accused’s application that redactions be made to Nelson’s statement is granted, to the extent that I have outlined. The application for severance is dismissed.
M. Dambrot J.
Released: May 25, 2022
COURT FILE NO.: CR-21-30000-302
DATE: 20220525
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
HER MAJESTY THE QUEEN
– and –
KEDAR ABDL GUERRA, ETHAN LOU LEE and ATNEIL FITZROY NELSON
REASONS FOR RULING
DAMBROT J.
RELEASED: May 25, 2022