Court File and Parties

COURT FILE NO.: CR-21-30000-302 DATE: 20220531 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEDAR ABDL GUERRA, ETHAN LOU LEE and ATNEIL FITZROY NELSON

COUNSEL: 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 10, 11 and 18, 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 and charged with first degree murder on January 13, 2020. Nelson and Lee were arrested in Toronto. Guerra was arrested in Sarnia, Ontario.

[2] At the outset of the trial, Crown counsel brought an application for an order permitting the Crown to adduce in evidence a statement made to the police by Mr. Guerra after his arrest. Mr. Guerra opposed this application and, in addition, brought an application to exclude the statement pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms on the basis that the statement was obtained in a manner that violated the accused’s right upon his arrest (1) to be informed promptly of the reasons therefor under s. 10(a) of the Charter and (2) to retain and instruct counsel without delay and to be informed of that right under s. 10(b) of the Charter.

[3] At the commencement of oral argument, counsel for Mr. Guerra conceded that the statement was made voluntarily, abandoned the s. 10(a) challenge, limited the s. 10(b) challenge to the implementational component of the right to counsel and, in addition, argued that if the Charter challenge failed, the Crown should be precluded from adducing the statement in the Crown’s case, and permitted to use it only in cross-examination of Mr. Guerra should he testify.

[4] I dismissed the Charter challenge and ruled that Mr. Guerra’s statement was admissible in the Crown’s case for reasons to follow. These are those reasons.

BACKGROUND

[5] The following is a summary of the circumstances from the arrest of Mr. Guerra to the completion of his statement.

Guerra’s Arrest

[6] On January 6, 2020, members of the Sarnia Police Service began conducting surveillance at the request of Det. Gallant of the Toronto Police Service in an effort to locate Guerra. On January 13, 2020, at 9:56 a.m., D.C. Anderson of the Sarnia Police Service along with other Sarnia police officers arrested Mr. Guerra in a bank in the Northgate Plaza in Sarnia. D.C. Anderson identified himself to the accused as a police officer and then, in accordance with the advice he had received from Det. Gallant, advised the accused as follows: “You are being charged with first degree murder.”

[7] D.C. Anderson then told the accused that it was his duty to inform him that he had the right to retain and instruct counsel without delay, that he had the right to telephone any lawyer he wished, that if he could not afford a lawyer, he could apply to the Ontario Legal Aid plan for free legal advice at 1-800-265-0451, a toll-free number that would put him in contact with Legal Aid duty counsel right away. D.C. Anderson then asked the accused if he understood, and he replied, “Yes sir.” D.C. Anderson then asked, “Do you wish to call a lawyer?” The accused replied, “I will when I get to the station.” D.C. Anderson asked, “What lawyer?” The accused replied, “Richard Braiden.”

[8] D.C. Anderson then told the accused that he was not obliged to say anything in answer to this charge, but anything he did say would be taken down and used in court. D.C. Anderson then asked, “Do you understand?” The accused replied, “yes, sir.”

[9] The accused was then taken out of the bank and placed in a police car. When D.C. Anderson arrested the accused in the bank, he did not have his memo book with him and gave the accused his right to counsel and caution from memory. Once the accused was placed in the police car, the officer retrieved his notebook and, at 9:59 a.m., gave him his right to counsel and cautioned him a second time, reading from his notebook. The accused’s responses were virtually identical to the first time. The officer then gave the accused a secondary caution from his notebook, and the accused said that he understood.

[10] At 10:05 a.m., D.C. Halfpenny got into the police car with Mr. Guerra. He advised Guerra that he was under arrest for first degree murder and advised him of his right to counsel a third time, in virtually the identical words as those used by D.C. Anderson. Mr. Guerra indicated that he understood and wished to speak to Mr. Braiden. D.C. Halfpenny also cautioned Mr. Guerra, who indicated that he understood the caution. D.C. Halfpenny then advised Guerra that he was being taken to the Sarnia Police station, and that after he was booked, he would be given an opportunity to speak to Mr. Braiden.

At the Sarnia Police Station

[11] Sgt. Wilson then transported the accused to the Sarnia Police station, where he was booked by Staff Sgt. Mamak. D.C. Halfpenny told Staff Sgt. Mamak, in Mr. Guerra’s presence, that Guerra’s first degree murder charge was a Toronto Police charge, that Guerra was a Toronto police prisoner, that the Sarnia police were holding Guerra for them, and that he would be transported to Toronto. Mr. Guerra asked, “So that means it’s not Sarnia?” D.C. Halfpenny advised him that the charge emanated out of Toronto. Staff Sgt. Mamak confirmed that Mr. Guerra had been advised of his right to counsel, and then asked him if he wanted to talk to a lawyer, effectively advising him of his right to counsel a fourth time. Mr. Guerra said that he wanted to talk to Mr. Braiden, and Staff Sgt. Mamak told him that the police would look up his number. After completing the booking process, Staff Sgt. Mamak sent Mr. Guerra to a washroom to be searched.

[12] When the police searched Mr. Guerra, they located a quantity of a suspected controlled substance in a baggie in the accused’s buttocks. He was charged and given his rights in respect of this seizure and then returned to the booking area, where Staff Sgt. Mamak gave him the opportunity to use the telephone to consult counsel in private in a telephone room off the cell block area with the door closed.

[13] At 10:46 a.m., Staff Sgt. Mamak called Mr. Braiden’s office on behalf of the accused and was advised that Mr. Braiden was in court. Staff Sgt. Mamak left a message with Mr. Braiden’s staff indicating that Mr. Guerra was under arrest for murder, would ultimately be transported to Toronto, and wanted to speak to Mr. Braiden. He was advised that Mr. Braiden would call back.

[14] When Staff Sgt. Mamak concluded his call to Mr. Braiden’s office, Mr. Guerra, who was present in the room and was aware of what was going on, confirmed with the officers that the murder charge was a Toronto charge and that Mr. Guerra was alleged to have killed Clinton Williams. Mr. Guerra then asked to speak to an “approved” person from Legal Aid, and D.C. Halfpenny offered to call the 1-800 duty counsel hot line that D.C. Anderson had told Mr. Guerra about. Guerra said that he wanted him to do this, “To see if I can get some legal advice or something.” D.C. Halfpenny placed a call to duty counsel as Mr. Guerra requested, and at 10:53 a.m. Mr. Guerra had the opportunity to speak to a lawyer in private, with the door closed. The call ended at 11:01 a.m. The accused was then placed in a cell.

[15] Then at 11:04 a.m., Mr. Braiden called back to the station to speak to the accused. D.C. Halfpenny brought the accused back to the telephone room from his cell, where the accused spoke to Mr. Braiden in private from 11:05 a.m. until 11:13 a.m. After the call, Mr. Guerra told D.C. Halfpenny that his lawyer told him to keep in contact with him, and that he was going to try to connect him to a lawyer in Toronto. D.C. Halfpenny then took the accused back to his cell.

Transportation to Toronto

[16] At 12:08 p.m., D.C. Halfpenny removed Mr. Guerra from the cells and placed him into a police cruiser. On the way to the cruiser, Mr. Guerra said that he didn’t know who he would be able to get to speak on his behalf and defend him in Toronto. D.C. Halfpenny told Mr. Guerra that when he got to Toronto, the police there would have a list of lawyers that he could call, just like they do in Sarnia, that he could change lawyers any time he wanted, and, “So, all you’re looking at right now is getting legal advice.” D.C. Halfpenny also mentioned that it was his impression that Mr. Braiden would not go to Toronto to defend him and thought it would be better for him to get a Toronto lawyer. D.C. Halfpenny went on to say that the Legal Aid system is set up so that they have people in Toronto to help and assist him “right then”.

[17] D.C. Halfpenny and P.C. Erban then drove Mr. Guerra to Cambridge, Ontario. They arrived in Cambridge at 2:00 p.m. and turned the accused over to P.C. Obey and P.C. Persaud of the Toronto Police Service in a parking lot near Highway 401. Once P.C. Obey and P.C. Persaud had placed the accused into the back seat of their vehicle, P.C. Obey read the accused’s right to counsel to him a fifth time from the officer’s notebook. The accused acknowledged that he understood and said that he would like to speak to duty counsel. P.C. Obey then cautioned Mr. Guerra, who said that he understood that as well.

[18] On the way to Toronto, Mr. Guerra said that he wanted to speak with Legal Aid to see if he could get some legal help. The officers asked Mr. Guerra what his age and address were, if he had a cell number or a home number, where he was born, whether he was employed, how much he weighed, if he had an email address, and whether he had Spanish roots. Mr. Guerra answered their questions.

[19] The officers drove the accused to 42 Division, arriving at the sally port at 3:37 p.m. At 3:48 p.m., Mr. Guerra was taken inside the station. The booking officer confirmed that he was charged with murder, informed Mr. Guerra that he would have reasonable use of the phone and said that if he did not have his own lawyer, he would be put in touch with duty counsel, effectively advising him of his right to counsel a sixth time.

[20] After Mr. Guerra was booked, P.C. Obey facilitated a call for him to duty counsel. Specifically, at 4:12 p.m., P.C. Obey called the 1-800 number for duty counsel, left a voice mail and proceeded to work on his notes. At 5:00 p.m., he received a voice message. He called the 1-800 number again and left another voice mail for duty counsel. At 5:08 p.m. duty counsel called back. She had already spoken to someone else involved in this case and felt that it would be a conflict of interest to speak to this accused as well. She told P.C. Obey that she would get someone else to call the accused.

[21] At 5:27 p.m. P.C. Obey received a call from another duty counsel, and transferred the call to the accused, who spoke to the duty counsel in private. The call ended at 5:42 p.m. Then, at 6:33 p.m., P.C. Obey escorted the accused to a main floor interview room and left him with Det. Sgt. Gallant and D.C. Emptage of the Homicide Squad, who conducted a recorded interview of the accused.

[22] When he first arrived in the interview room, Guerra immediately began speaking. Det. Sgt. Gallant interrupted him and told him that there were a few things he had to cover before giving the accused the opportunity to talk. Det. Sgt. Gallant introduced himself and D.C. Emptage and asked the accused to identify himself. He then reminded him that he had been arrested that morning by Sarnia police for first degree murder and confirmed with him that he had been advised of his right to counsel, effectively advising him of his right to counsel a seventh time, and that he had been cautioned. Det. Sgt. Gallant also confirmed that Guerra understood his right to counsel and that he told the police in Sarnia that he wanted to speak to a lawyer. Det. Sgt. Gallant also confirmed that Guerra had spoken to his London lawyer while he was still in Sarnia as well as “a lawyer in Sarnia in the book”, by which he obviously meant duty counsel.

[23] Det. Sgt. Gallant then tried to confirm with Mr. Guerra that he had spoken to a lawyer at 42 Division as well. Mr. Guerra at first said that he had not spoken to a lawyer, but when Det. Sgt. Gallant said that he thought Mr. Guerra had spoken to duty counsel while in 42 Division, he said, “Yeah, duty counsel.” He explained that he didn’t have a “specific lawyer yet” but he did receive legal advice.

[24] I pause to note that counsel for Mr. Guerra argued that in this exchange, it appears that the accused did not understand that the duty counsel he spoke to in Toronto was a lawyer. I do not see it that way at all. Mr. Guerra understood that the duty counsel he spoke to in Sarnia was a lawyer, and it seems obvious that he also understood that the duty counsel he spoke to in Toronto was a lawyer. He acknowledged that the Toronto duty counsel gave him legal advice. He was simply distinguishing duty counsel from a lawyer actually retained by him to act in his defence.

[25] The accused also confirmed that he understood that he was charged with first degree murder, and knew what murder meant. Det. Sgt. Gallant explained the difference between manslaughter, second degree murder and first degree murder, and specifically that first degree murder meant planned and deliberate murder. D.C. Emptage then reminded the accused that he was charged with first degree murder and read the standard caution and secondary caution to him. The accused replied that he understood “to a certain extent.” In the course of this explanation, the accused said, “Your officers [in Sarnia] told me I’m being charged with murder … now it’s first degree murder … like what is it?” D.C. Emptage then clarified the secondary caution for him.

[26] The accused then asked why he was sitting there, and D.C. Emptage explained that they were giving him the opportunity to tell his side of the story, and that the interview was being video and audio recorded. The accused said that they wanted him to say that he was guilty and would manipulate him to make him say what they wanted him to say. He confirmed that he had been told that he was being charged for the murder of “some guy named Clinton” but denied knowing him. He said duty counsel told him certain things, and he was not turning down the interview – he was there to listen to what the police had to say. But they were not going to scare him. He was innocent, and if it took three years for him to get out of jail, so be it. He didn’t do anything.

[27] At times in the course of the interview, Mr. Guerra got angry at the officers, raised his voice and expressed his anger freely. He clearly was not intimidated by them. At one point he stood up and started to walk away. At times, Det. Sgt. Gallant got a bit angry in response to Mr. Guerra’s attitude, but at no time was he threatening, intimidating or overbearing. Mr. Guerra frequently interrupted Det. Sgt. Gallant. At times, Det. Sgt. Gallant interrupted Mr. Guerra. However, unquestionably, Mr. Guerra had the opportunity to say everything he wanted to say to the officers, and carefully chose to answer the questions he wanted to answer, and not answer the questions he did not want to answer.

[28] The interview then continued until 7:17 p.m. At no time during the interview did Mr. Guerra ask to speak to duty counsel or any specific lawyer. At no time did he suggest that he did not understand his right to silence.

The Position of the Applicant

Respecting Section 10(b) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[29] The accused submits that the implementational component of his right to counsel guaranteed by s. 10(b) of the Charter was violated because, despite the fact that he spoke to three lawyers, the accused did not understand the advice he was given. In particular, counsel argued that an obligation to renew the right to consult counsel arose because the police breached their undertaking to provide him with a list of lawyers when he got to Toronto, because during his trip to Toronto Mr. Guerra appeared not to understand the legal advice he was given and because when Mr. Guerra was interviewed in Toronto, he appeared not to realize that he was speaking to a lawyer when he spoke to Legal Aid counsel.

Respecting the Crown’s Right to Adduce the Statement in Its Case

[30] The Crown hopes to rely on the statement to establish certain admissions made by the accused in the statement that support the Crown’s case, and to establish certain lies told by the accused which, the Crown will argue, is after-the-fact conduct that is consistent with guilt.

[31] The accused submits that the admissions can be established by other evidence, and the lies are not admissible as after-the-fact conduct because there is no evidence that they are fabrications or concoctions. The accused further argues that the prejudicial effect of the evidence outweighs its probative value, because the police continually told him their position about the case and then overrode his ability to respond. As a result, the jury might misuse the statement.

ANALYSIS

Section 10(b) of the Charter Was Not Violated

[32] In assessing the claim that the implementational component of s. 10(b) was violated, it is important to keep in mind the contours of the right to counsel as developed in the jurisprudence of the Supreme Court of Canada. I begin with R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310.

[33] In Sinclair, McLachlin C.J. and Charron J., speaking for the majority of the Court, explained, at paras. 24-26, that the purpose of s. 10(b) is to provide a detainee with an opportunity to obtain legal advice about how to exercise his legal rights relevant to his legal situation. In the context of custodial interrogation, which is, of course, the context here, chief among the rights that must be understood by the detainee is the right under s. 7 of the Charter to choose whether to cooperate with the police or not. As McLachlin C.J. and Charron J. put it, at para. 28, the right to choose whether or not to cooperate with the police is “the basic purpose of s. 10(b)”.

[34] McLachlin C.J. and Charron J. also made clear that the implementational component of s. 10(b) of the Charter is a one-time right to consult counsel with few recognized exceptions. They stated, at para. 64:

[W]e take the settled view to the effect that the right to counsel is essentially a one-time matter with few recognized exceptions, and expand upon this existing jurisprudence by recognizing the right to a further consultation with counsel in any case where a change in circumstances makes this necessary to fulfill s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation.

[35] Recently, in R. v. Dussault, 2022 SCC 16, Moldaver J. stated, for the Court, at paras. 33-34:

[33] On this point, it is worth reiterating what the Sinclair majority made clear: Detainees do not have a right to obtain, and police do not have a duty to facilitate, the continuous assistance of counsel. Although other jurisdictions recognize a right to have counsel present throughout a police interview, that is not the law in Canada. Canadian courts and legislatures have taken a different approach to reconciling the personal rights of detainees with the public interest in effective law enforcement: Sinclair, at paras. 37-39.

[34] Once a detainee has consulted with counsel, the police are entitled to begin eliciting evidence and are only exceptionally obligated to provide a further opportunity to receive legal advice. In Sinclair, McLachlin C.J. and Charron J., writing for the majority, explained that the law has thus far recognized three categories of “changed circumstances” that can renew a detainee’s right to consult counsel: “... new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient” (para. 2). Of course, for any of these “changed circumstances” to give rise to a right to reconsult, they must be “objectively observable”.

[36] In this case, the accused argues that there was objectively observable reason to believe that the first information provided to the accused was deficient. He says that it became objectively observable that the information Mr. Guerra received from lawyers whom he spoke to was deficient during two periods of time: first, in the period between speaking to duty counsel and his own lawyer in Sarnia and speaking to duty counsel in Toronto; and second, after speaking to duty counsel in Toronto and the end of his interview with homicide detectives in Toronto.

[37] In the first of these periods, counsel for Mr. Guerra points to two matters: first, the breach of the police “undertaking” to provide him with a list of lawyers when he got to Toronto; and second, he says, during the trip to Toronto Mr. Guerra appeared not to understand the legal advice he was given. There is no merit to either claim. I will deal with them in turn.

[38] The notion that there was a breach of an undertaking by the police is without foundation. When D.C. Halfpenny, a Sarnia police officer, was taking Mr. Guerra from the Sarnia police station to the police car in which he was transported part way to Toronto, Mr. Guerra said that he did not know how he would find a lawyer to defend him in Toronto. Mr. Guerra was not expressing concern about how to contact a lawyer in Toronto to give him advice about cooperating with the police, which is the basic purpose of s. 10(b). He was concerned about retaining his own counsel.

[39] D.C. Halfpenny attempted to be helpful. He said that the police would have a list of lawyers that he could call for immediate legal advice, that he could hire his own lawyer to defend himself, and that legal aid would also be available to him in Toronto.

[40] The suggestion that this commendable effort by a Sarnia police officer to be helpful to the accused was an undertaking that the Toronto police would provide him with a list of lawyers is a stretch. He was not giving, and could not give, an undertaking on behalf of the police in Toronto. In any event, the accused did not ask for a list of lawyers when he got to 42 Division. He asked to speak to duty counsel, and his request was facilitated. I am unable to see how any of this impacts the implementational component of s. 10(b).

[41] The accused’s second submission—that it was objectively observable that when the accused was in a Toronto police car on the way to Toronto that he did not understand the legal advice he had been given by two lawyers when he was in Sarnia—does not bear scrutiny. The accused told the officers in the car that he wanted to speak with Legal Aid to see if he could get some legal help. I am of the view that, once again, the accused was concerned about getting a lawyer to represent him in respect of the murder charge. But whatever his reason for wanting to speak to legal aid again, he gave no indication that he did not understand the legal advice given to him by the two lawyers who spoke to him in Sarnia.

[42] As Moldaver J. made clear in Dussault, detainees do not have a right to obtain, and police do not have a duty to facilitate, the continuous assistance of counsel. But even if the accused did have a further right to consult counsel, once he got to Toronto, and before his custodial interview, he was given the opportunity to do precisely what he asked to do: speak with Legal Aid. There was no breach of the implementational component of s. 10(b) in the period of time between speaking to duty counsel and his own lawyer in Sarnia and speaking to duty counsel in Toronto.

[43] That brings me to the second time period: after the accused spoke to duty counsel in Toronto until the end of his interview with homicide detectives in Toronto. The accused argues that there were indications in the interview with the police that he did not understand the legal advice he had been given by the three lawyers he had spoken to. I see no such indication. The accused told Det. Sgt. Gallant that he understood his right to speak to counsel, had exercised it in Sarnia by speaking to his own lawyer and “a lawyer in Sarnia in the book”, by which he obviously meant duty counsel, and had also exercised it in Toronto, and had received legal advice.

[44] The only thing that Mr. Guerra might conceivably have been confused about when he was interviewed was whether the duty counsel he spoke to in Toronto was a lawyer. As I have explained, I do not think he was confused, but in any event, he was permitted to speak to duty counsel as he requested, and he got the legal advice he required. He did not suggest otherwise. On the contrary, at one point he said, “I was already informed certain things from my duty counsel so I'm not turning down the interview but I’m here to listen to what you guys have to say. ... ‘Cause first of all, sir, you’re not going to scare me, I've already been to the pen”. There was no breach of the implementational component of s. 10(b) in the period of time between Mr. Guerra speaking to duty counsel in Toronto and the end of his interview.

[45] In this case, the accused was advised or reminded of his right to consult counsel at least seven times and exercised that right three times before he was interviewed. He had ample opportunity to obtain advice about the extent to which he should cooperate with the police, and unquestionably understood the advice he got. In the course of his interview, he answered some questions, and did not answer others. There was no breach of the implementational component of s. 10(b) at any time.

[46] Mr. Guerra’s application to exclude the statement taken from him by the police pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms on the basis that the statement was obtained in a manner that violated his right upon his arrest to retain and instruct counsel without delay and to be informed of that right under s. 10(b) of the Charter is dismissed.

The Crown Has the Right to Adduce the Statement in Its Case

[47] I turn next to Mr. Guerra’s argument that even if there was no violation of s. 10(b) of the Charter, the Crown should be precluded from adducing the statement in its case, and permitted to use it only in cross-examination of the accused Guerra should he testify.

[48] I begin by identifying the use that Crown counsel wishes to make of Mr. Guerra’s statement.

[49] First, the Crown intends to rely on the following admissions made by Mr. Guerra in his statement:

• Mr. Guerra identified his own automobile, in particular when it was in close proximity to the car from which the shooter emerged later that day and shot Mr. Williams; his fiancée, Natasha Nickles; and himself in still images from the Travelodge surveillance video.
• Mr. Guerra identified himself in still images from the Scarborough Town Centre surveillance video shortly after Mr. Williams was shot.

[50] In addition, the Crown intends to rely on several alleged lies Mr. Guerra told as after-the-fact conduct evidence, including the following:

• Mr. Guerra said that he did not know Clinton Williams. This is contradicted by the evidence of Diane Guerra and Natasha Laughton. When told that his family said he had known Mr. Williams for ten years, Mr. Guerra implicitly agreed, saying that they had never been to his apartment and did not know where he lived.
• Mr. Guerra said several times in his statement that no one visited him and his fiancée at the Travelodge on New Year's Eve, 2019, and that no one came into his room. This is contradicted by surveillance video evidence showing Mr. Guerra greeting Mr. Nelson and Mr. Lee outside the Travelodge, supported by cell phone records. Mr. Guerra maintained his position even when shown still photographs from the video depicting him greeting Mr. Nelson and Mr. Lee at the Travelodge, showing him and his fiancée walking down the corridor with Mr. Nelson and Mr. Lee in the Travelodge towards and into his room and emerging from his room half an hour later. To the end, he denied ever meeting, far less having in his room, the two men he clearly was with in the Travelodge.
• Mr. Guerra said he had never seen or been in the silver Mercedes Benz from which the shooter emerged at the scene of the shooting and maintained this position even when shown a still photo of him apparently entering that vehicle.
• Mr. Guerra stated he had not been to 100 Wingarden Court since he had been a kid, which is contradicted by other evidence.
• Mr. Guerra claimed he was alone at the Scarborough Town Centre after the shooting, even after being told about video and phone record evidence that suggested that he was there with Mr. Nelson.

[51] There can be no doubt that the Crown is entitled to adduce Mr. Guerra’s statement to prove admissions that are relevant to material issues in the Crown’s case. A post-arrest statement of an accused made to a person in authority is admissible in evidence against that accused if it is found to have been made voluntarily.

[52] There is also no doubt that 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 giving such an instruction to 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).

[53] In this case, counsel for Mr. Guerra argues that the statement should not be admitted to prove the admissions made by Mr. Guerra because the admissions are unnecessary. The Crown can rely on other evidence to prove these matters. Counsel says that the alleged lies in the statement are inadmissible as after-the-fact conduct because there is no independent evidence of fabrication.

[54] With respect to the first argument, the admissions in the statement have not been admitted by the accused at trial. I see no basis in this case to exclude them simply because there is other evidence that might establish these facts.

[55] With respect to the second argument, the law is clear that where the Crown alleges that an accused’s statement is fabricated, the sufficiency of the evidence of fabrication must be adjudicated at the admissibility stage at the instance of the accused. This was established in O’Connor, where O’Connor A.C.J.O. stated, at para. 30:

When the Crown seeks to introduce evidence to show that an accused has fabricated out-of-court statement[s], the judge should determine at that stage whether there is sufficient evidence of fabrication, independent of the evidence tending to show the falsity of the statements, which, if accepted, could reasonably support a finding of fabrication. If there is not sufficient evidence to support a finding of fabrication, then the Crown should not be permitted to call the evidence showing the accused’s statements were false. There would be no purpose in the Crown proving that the accused made a false statement if the inference from a conclusion of fabrication is not available. To call the evidence showing an accused's statement is false in that circumstance could only tend to confuse the trier of fact and possibly unfairly prejudice the accused.

[56] It is important to note that O’Connor A.C.J.O. was addressing the admissibility of evidence showing that the statement was fabricated, and not the statement itself. Of course, if the statement has no relevance other than to show fabrication, it would be excluded as well. But that is not ordinarily the case. In fact, it is unusual to attempt to exclude falsehoods in a post-arrest statement at the admissibility stage because they rarely stand alone. Typically, a post-arrest statement that includes alleged falsehoods also includes other assertions that are inculpatory, exculpatory, or both. Although a statement can be edited, editing is usually kept to a minimum to avoid distorting what the accused said or otherwise affecting the tenor of a relevant statement.

[57] Here, the statement does have another use in addition to proving that the accused lied to the police, as I have explained, but I will proceed as if it does not, and consider the admissibility issue on that basis. In O’Connor, O’Connor A.C.J.O. went on to explain, at paras. 31-32, that although the evidence establishing the falsity of the statements does not constitute evidence of fabrication, evidence of the circumstances in which the disbelieved statements were made and the nature of the statements themselves is capable of furnishing the independent evidence of fabrication. Other cases have made clear that independent evidence of fabrication or concoction can be provided by the timing and content of the statement, the inherent implausibility of the statement, and the degree of detail in the statement: R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, at para. 48; R. v. Carignan, 2021 ONCA 496, at para. 41; R. v. Grandine, 2022 ONCA 368, at para. 62.

[58] In this case, there is independent evidence of fabrication or concoction in the statement itself. First, many aspects of Mr. Guerra’s statement easily fit the description of inherent implausibility. Most notably, his denial that anyone visited him at the Travelodge hotel, that he knew Lee and Nelson, that they had been in his hotel room, that he had been in the silver Mercedes Benz and that he had been with Mr. Nelson in the Scarborough Town Centre, even when shown still photographs that show otherwise, is all inherently implausible, as is his initial denial that he knew the deceased. In addition, the changes in his answers to certain questions asked by the police as he was made aware of what the police knew is also independent evidence of fabrication or concoction. As a result, the statement is admissible in the Crown’s case.

[59] Finally, as I have noted, the accused also argues that the Crown should be precluded from adducing the statement in its case in any event because the prejudicial effect of the evidence, if led in the Crown’s case, outweighs its probative value. The prejudice is said to flow from the police officers who interviewed the accused continually telling the accused their position about the case and then overriding his ability to respond. With respect, this is not how I would characterize the interview.

[60] In Sinclair, at para. 60, McLachlin C.J. and Charron J., for the majority of the Court, referred without criticism to “the common police tactic of gradually revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him”. The police employed this tactic here, except that they revealed no fake evidence, and did not exaggerate their case or, at most, exaggerated it only marginally. Nor did they override Mr. Guerra’s ability to respond. The manner in which they interviewed the accused occasioned no prejudice.

[61] Moreover, in my view, it is odd to assert that a police tactic employed in the taking of a statement that neither infringed the Charter nor resulted in the statement being involuntary nevertheless somehow caused prejudice to the accused, and that that prejudice justifies the exclusion of the statement. In this case, at the very least, the argument is untenable.

[62] In all the circumstances, I will permit the Crown to adduce Mr. Guerra’s statement to the police in the Crown’s case and will not require the Crown to reserve the statement for cross-examination.

DISPOSITION

[63] Mr. Guerra’s application to exclude his statement to the police on the basis that the implementational component of the right to counsel guaranteed by s. 10(b) of the Charter was violated is dismissed. His further application for an order that the Crown may not adduce the statement in evidence in the Crown’s case but must reserve it for cross-examination is denied.

M. Dambrot J.

Released: May 31, 2022