Court File and Parties
COURT FILE NO.: CR-20-40000386 DATE: 20240314 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – DAMIAN GUERRERO
Counsel: Paul Alexander, for the Respondent Glen Orr, for the Applicant
HEARD: February 8, 2024
B. P. O’MARRA J.
RULING ON THE ADMISSIBILITY OF DEFENCE EVIDENCE
[1] In the late hours of October 16, 2018, there was an altercation between members of two families in a parking lot. There were loud arguments, and two vehicle tires were damaged with knives. A member of each family had called 911 in regard to the escalating altercation. The accused was a member of one of the involved families and had driven alone to the scene after others were already there.
[2] One of the 911 calls was from Veronica Sinclair. She reported that she had seen the accused brandish a handgun during the altercation. The accused left the scene in his car before the others.
[3] In her 911 call, Veronica Sinclair provided information about the accused’s identity as well as information about the car he had been driving.
[4] The police responded to the gun call and shortly thereafter observed the accused driving to his home. As the accused pulled into his driveway, two unmarked police cars pulled in directly behind him. He was the sole occupant in the car. After he was arrested, the police searched his car. In the trunk, they found a loaded illegal handgun in a satchel. The accused was charged with the illegal possession of the handgun and ammunition.
[5] The accused pleaded not guilty, and the trial proceeded before a jury.
[6] Veronica Sinclair was the only witness who claimed to have seen the accused brandish a handgun at the scene of the altercation in the parking lot. The reliability and credibility of her evidence was a prominent feature of the trial for obvious reasons. She testified on February 7, 2024 and was the last witness in the Crown’s case in chief.
[7] In terms of reliability, experienced counsel for the accused properly challenged the witness’s ability to see and accurately describe what she claimed was a handgun shown by the accused. Defence counsel pointed out inconsistences in her evidence related to the circumstances of seeing the handgun.
[8] In terms of credibility, the defence challenged the witness based on her alleged animus towards the accused’s family. The defence claimed that Veronica Sinclair resented the accused’s family because she disapproved of her daughter being involved in a romantic relationship with the accused’s sister. Veronica Sinclair denied that was the case.
[9] The cross examination of Veronica Sinclair relating to her alleged disapproval of her daughter’s relationship with the accused’s sister is contained in the following excerpts from the transcript, at pages 26-31 inclusive:
Q. Now, let’s go back before December, no, October 16, 2018. You told His Honour and the jury did you this morning that – I had trouble hearing at that point – that your daughter was a friend of Mr. Guerrero’s sister. Is that correct?
A. School friends, yes.
Q. Well that’s hardly accurate, is it? I would suggest that you were well aware that they were romantically involved. That they were lovers?
A. No.
Q. You know?
A. No. I wasn’t aware.
Q. You were never aware of it?
A. I was never aware, no.
Q. I suggest; well I suggest you were ma’am and I suggest that’s – so just to have a look here....
MR. ORR: Your Honour, I wonder if I could have Exhibit #1.
THE COURT: Yes.
MR. ORR: Q. I am going to show you a photograph of a big grey house on the bottom left hand corner. I am going to suggest that you look at that and I’m going to suggest to you ma’am that you’ve been there on a....
A. Yeah, yeah that’s the; that’s Cheyenne’s house, yes.
Q. Right?
A. Yes.
Q. And I would suggest that you went there on different occasions and you just would come to the house and just walk in the back door.
A. No. Not correct.
Q. But you’d been there?
A. I’ve been there, yes.
Q. How many times?
A. Twice, twice.
Q. Twice.
A. Twice. And you were there complaining about your daughter being involved with one of their daughters, Cheyenne. Is that correct?
A. Not to that what you’re saying, no. Part of it is correct.
Q. Well what part of it is correct and what part isn’t correct?
A. I went there complaining about my daughter because she’s been taking drugs with Cheyenne.
Q. Well I suggest ma’am that you were also – that both you and Damian’s mother here discussed the fact that they were romantically involved and you thought it was against god’s law?
[10] At this point, the Crown objected. In the absence of the jury, I ruled that counsel could continue cross examination on this topic provided it was focused. Counsel agreed and proceeded.
CROSS-EXAMINATION BY MR. ORR (Continued):
Q. Ms. Sinclair just going back then please. Do I understand you correct ma’am that it is your position that you did not know that your daughter, um, your daughter Shereka was having a romantic relationship with Cheyenne Guerrero?
A. She wasn’t. They were just friends.
Q. And I’m going to suggest to you ma’am that on different occasions you discussed this romantic relationship with Cheyenne’s mother, Damian’s mother. What do you have to say about that?
A. We have a discussion with his mother in regards to my daughter and her daughter. We did not have any discussion about sexual relationship.
Q. So a romantic relationship never came up in your discussions with Damian’s mother. Is that correct?
A. His mother mention it. Not me.
Q. His mother mentioned it?
A. Yes, at that.
Q. Well you, so you were, but you never mentioned it?
A. No. She mentioned it and I said: That’s not true. That’s what I said to her.
Q. And I’m going to suggest to you ma’am that not only did you mention it to her, but you mentioned it -- you made it clear it was against god’s law?
A. I don’t know what you’re getting at. But like I said, I did not have that discussion with her.
Q. Sorry?
A. I did not have that discussion with her.
Q. Now ma’am, you first of all, we are talking about a date, October 16, 2018. When did you first meet Cheyenne, Damian’s Guerrero’s sister? When did you first meet her please?
A. I believe it was in the summer or in April I believe. She came to my driveway to pick up my daughter because they were going to Wonderland.
Q. Right and....
A. And they’re friends.
Q. Now ma’am, when you said that you went to that house depicted in that exhibit that I showed you earlier, Exhibit #1, it’s down in the bottom left hand corner. When do you say that you went to that house, please?
A. I went there one -- I don’t remember the month, but I believe it was in the same year. My daughter; I came to the conclusion that something was up with my daughter and I was looking for her and I couldn’t find her.
Q. Yes?
A. And at the time she got really beat up by another girl at school. Well it wasn’t on the school property. It was after school. And she was there hiding. And I went there looking for her and they said she wasn’t there. And then I left and reached up to the top of the street, then his younger sister and his mother came back and said she’s there. That’s the first time I went there. And then I called the ambulance from there.
Q. Now, I’m going to suggest again and then I will go on from there, that on more than one occasion you went to the grey house.
A. Twice, I went there twice.
Q. And you protested about the two girls having a romantic relationship?
A. No, I did not. No, I did not.
Q. Why do you say that you were over at that grey house?
A. Pardon?
Q. Why do you say that you went to the grey house?
A. The grey house?
Q. The grey house, the house in the photograph there, the Guerrero house. Why do you say you went there?
A. I went there looking for my daughter. That’s why I went there.
Q. And why did you believe that your daughter was there?
A. Because that’s the only place she goes. At the time she didn’t have any other friends.
Q. So your daughter was spending a lot of time to your understanding, at the Guerrero house, back in 2018. Is that correct?
A. Whenever she goes there to do homework, she will call me from there and let me know she’s there. She’s never go there without letting me know. She said I’m going there to do my homework, or to get help with my homework.
Q. Now, going to -- and I’m going to suggest ma’am that because of this what I allege and you deny it, romantic relationship, you in fact on more than one occasion beat up your daughter Shereka. What do you say about that?
A. I did what? Beat up my daughter?
Q. Yeah, that she would go over to the Guerrero household with bruises?
A. That’s not true. That’s not true.
[11] Counsel for the accused gave an opening address to the jury the next day. He indicated that his client would testify and deny knowledge or possession of the handgun and ammunition. The first witness for the defence would be Cheyenne Guerrero. She is the accused’s sister. She would testify that the gun and ammunition belonged to her and that she did not tell anyone else in the family about them.
[12] Preceding the events of October 16, 2018, Cheyenne Guerrero was involved in a romantic relationship with Veronica Sinclair’s daughter. Before Ms. Guerrero testified in the absence of the jury, counsel for the accused reiterated his position that Veronica Sinclair had animus towards the accused’s family based on her disapproval of this romantic relationship. Counsel advised the court that Ms. Guerrero would be referring to text messages she had from Veronica Sinclair that clearly showed her disapproval of her daughter’s relationship.
[13] Crown counsel objected to the admissibility of the text messages based on concerns about collateral evidence as well as their late arrival at trial. I asked counsel for the accused why he did not seek to cross examine Veronica Sinclair on the text messages. His response was that she had denied his suggestion and “that was that.” Much later in his submissions, counsel advised that he was not aware of the text messages until the night before Ms. Guerrero was to testify. He submitted that the text messages were admissible through her testimony.
[14] After hearing counsels’ submissions, I made a brief ruling with reasons to follow at a later date so that the trial before the jury could proceed. I ruled that the text messages were not admissible at that stage.
ANALYSIS
[15] When questions are related to “collateral” issues, the questioner is usually stuck with the answer. Many questions going to the credibility of a witness might well be collateral. However, bias of a witness is always relevant and is not collateral: R. v. MacDonald, 2007 ABCA 53, 412 A.R. 188, at paras. 11-12.
[16] The alleged bias or animus of the witness Veronica Sinclair relates to her disappointment over the romantic relationship between her daughter and Cheyenne Guerrero, the accused’s sister. That issue is related to but distinct from whether there was such a romantic relationship. Evidence as to whether there was such a relationship would be collateral to the issues at this trial and thus inadmissible.
[17] Counsel for the accused was permitted to explore the issue of potential animus over several pages of transcript. The defence application to file or refer to texts that related to this issue did not arise at the “11th hour”. It was later than that. The Crown had closed its case and the defence had made an opening address to the jury.
[18] The alleged animus dates back to events before and after October 16, 2018. There was uncontentious evidence at trial of aggressive and threatening behavior between the two families shortly before the accused was arrested. Cheyenne Guerrero was a critical witness at trial. She would claim exclusive possession of the gun and ammunition. She would present the text messages at issue. In my view, defence counsel has an obligation of due diligence to prepare their witnesses for trial on a timely basis. This obligation includes canvassing whether a witness may have relevant evidence to be vetted by the court in a timely way. This is especially the case in a trial with a jury.
[19] Veronica Sinclair was properly and thoroughly cross examined by experienced counsel on the very issue allegedly referred to in the text messages. In the particular circumstances of this case, the defence should not be permitted to refer to the text messages that were not mentioned in cross examination of the Crown witness.
B.P. O’Marra J. Released: March 14, 2024