R. v. Guerra Guerra, 2025 ONSC 1741
Court File No.: CR22-393
Date: 2025-03-19
Ontario Superior Court of Justice
Between:
His Majesty the King
and
Carlos Guerra Guerra, Respondent
Appearances:
- J. Moser, K. Mildred, for the Crown
- R. Golec, for the Respondent
Heard: December 9, 2024
Application by Crown to Recall a Witness
Justice P.J. Moore
Introduction
[1] The Crown brought an oral application on December 4, 2024 before the end of its case to recall Ricardo Silva as a witness. I heard argument on December 9, 2024 and gave a decision that same day with reasons to follow. These are those reasons.
[2] Ricardo Silva is the father of Josue Silva, the young man who was shot and killed. He was the first witness called by the Crown on Mr. Guerra Guerra’s trial for second degree murder and assault with a weapon.
[3] The Crown seeks to recall Mr. Silva on the discrete issue of Josue Silva’s airsoft gun and the location of that gun on July 30-31, 2021, during the evening of the bush bash and at the time when the shooting occurred.
[4] When Mr. Silva testified, he was not asked any questions by the Crown about Josue Silva’s possession of an airsoft pistol and he was not cross-examined by either defence counsel on that issue.
[5] During the cross-examination of the second Crown witness, Isabella Restreppo, the Defence suggested to her that Logan Marshall had a gun and Josue Silva had a machete and may also have had a gun.
[6] Following that, a number of witnesses were cross-examined on a video where Blake Hayward is holding what appears to be a gun to the head of another young man who is laughing. Logan Marshall was shown this video during his evidence. He had previously been shown the same video by the police and told them that he was pretty sure that it was Blake Hayward’s airsoft gun, but that it could have been Josue Silva’s gun or maybe Josue’s brother’s. During his testimony, he said that he had subsequently spoken with Blake Hayward and was told that it was Josue Silva’s gun. This was clearly hearsay. Blake Hayward was not a witness at the trial.
[7] The Crown has advised on this application that Ricardo Silva spoke to Det. Budzyn about Josue Silva having an airsoft pistol. He provided the airsoft pistol to Det. Budzyn on March 13, 2022 and provided him a verbal statement that he had the gun on the night of the shooting. He had taken it away from Josue Silva 1-3 months prior to the shooting and put it in his safe box where it was the night of the shooting. Ricardo Silva’s statement was disclosed to defence counsel as part of disclosure shortly after it was provided.
[8] The Crown now wishes to recall Ricardo Silva and ask him about the airsoft gun that Josue Silva had and its whereabouts at the time of the shooting.
Positions of the Parties
[9] The Crown submits that they had no basis to believe that Defence would suggest to witnesses during the trial that Josue Silva had a gun at the bush party because there was no other evidence to that effect. Given the questions by the Defence, information that Josue Silva did not possess his airsoft gun on July 31, 2021, is now relevant and material. The Crown would only be asking Mr. Silva questions about the information from his statement that was disclosed two years ago so his presence in the courtroom throughout the trial should not be a concern.
[10] The Defence submits that Ricardo Silva should not be permitted to testify again. They note that after he testified, he has sat through all the other witnesses on the trial including through the testimony of the last four witnesses after the Crown brought this application. They submit that if the Crown wanted to recall Mr. Silva, they should have done so earlier. The Defence submitted that if Ricardo Silva is recalled, his credibility would be vigorously challenged including questioning him about some conflicts that occurred outside the courtroom during the trial.
[11] Mr. Golec argued that the Defence did not have any duty to put their theory, that Josue Silva may have had a gun, to Ricardo Silva during cross-examination under the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.) because the Defence position is that his evidence with respect to the airsoft gun is mistaken or self-serving.
[12] The Defence takes the position that if Ricardo Silva is permitted to be recalled, they would then have to recall Logan Marshall, Braeden Bubb Clarke and Det. Budzyn and the court would also have to hear from Blake Hayward. In summary, their position is that the evidence has so little value and such high prejudice that the witness should not be recalled.
The Law
[13] The Crown provided me two cases, R. v. M.B.P., [1994] 1 S.C.R. 555, and R. v. McKinnon et al, 2014 BCSS 721, and an excerpt from the textbook Canadian Encyclopedic Digest, Chap. 85 entitled “Recalling a Witness”, prepared and updated by Peter Sankoff, LLM in October 2024.
[14] In the textbook, the author indicates that it is a fairly uncommon occurrence that a witness who has already been called and cross-examined will need to be recalled but it is within the trial judge’s discretion to permit the recalling of a witness. However, that discretion will be applied differently if the Crown seeks to recall the witness before the close of its case compared to after it has closed its case. If the Crown has already closed its case, it should not be permitted to recall a witness unless it can satisfy the test for re-opening. If the witness is being recalled to rebut something raised in the Defence case then it would normally be allowed as reply evidence.
[15] The author goes on to state the following:
Other situations can arise, however. A party might not have closed its case, but nonetheless realized that some piece of important proof was not adduced through a witness. Or new information might have come to light after the witness was discharged. In these cases, leave should be granted where the testimony would correct an omission or misapprehension of the evidence. (Giffin v. Lee, 2005 CarswellOnt 7550 (Ont. S.C.J.)) Recall should also be permitted where an intervening event has occurred that requires the witness to provide new evidence on a material point. (Nova Scotia (Minister of Community Services) v. R.(J.), 2011 NSFC 13 (N.S. Fam. Ct.); Cabana v. Newfoundland and Labrador, 2023 NLSC 125 (N.L.S.C.))
[16] In M.B.P., the Supreme Court was dealing with a sexual assault case where the complainant and her mother had finished testifying and the Crown had closed its case, the Defence then announced an intention to call an alibi witness and the trial judge allowed the Crown to re-open its case and recall the complainant’s mother on a date issue. The Court indicated that a keystone principle in determining whether the Crown should be permitted to reopen its case is whether the accused will be prejudiced in his or her defence. The Court stated at pages 11-13:
A trial judge’s discretion in this regard must be exercised judicially and with a view to ensuring that the interests of justice are served.
Traditionally, courts in Canada and England have treated the stage reached in a proceeding as correlative to prejudice and injustice to the accused. That is, a court’s discretion with respect to reopening will be exercised less readily as the trial proceeds. The point is illustrated by taking the following three stages in a trial:
- before the Crown closes its case,
- immediately after the Crown closes its case but before the defence elects whether to or not to call evidence (most commonly, this is where the defence has moved for a directed verdict of acquittal for failure of the Crown to prove some essential ingredient of its case), and
- after the defence has started to answer the case against it by disclosing whether it will be calling evidence.
In the first phase, before the Crown has closed its case, a trial judge has considerable latitude in exercising his or her discretion to allow the Crown to recall a witness so that his or her earlier testimony can be corrected. Any prejudice to the accused can generally be cured at this early stage by an adjournment, cross-examination of the re-called witness and other Crown witnesses and/or a review by the trial judge of the record in order to determine whether certain portions should be struck.
Once the Crown actually closes its case and the second phase in the proceeding is reached, the trial judge’s discretion to allow a reopening will narrow and the corresponding burden on the Crown to satisfy the court that there are no unfair consequences will heighten.
[17] In McKinnon, the Crown sought to recall three surveillance officers who were master note takers before it had closed its case. Fisher J. noted that there was little authority governing the situation where the Crown seeks to recall witnesses while its case is still ongoing. He relied on the MBP case as providing some direction and concluded at para. 6 that an essential consideration is the fairness to the trial. The Court in McKinnon also relied on R. v. Hernandez, 2008 BCSC 1470 where the court was called on late in the trial, but before the close of the Crown case, to rule on whether the Crown could recall an expert witness to give additional evidence. Some of the evidence had not been given due to an oversight, some was recently discovered, and some the Crown has initially intended to lead through another witness. The trial judge allowed the Crown to recall the witness but only in relation to evidence that had been omitted due to oversight as it found that it was too late in the case to introduce the recently discovered evidence and it would have been inconsistent with extensive admissions.
[18] Fisher J. found that his exercise of discretion must be guided by the principle of trial fairness. Whether the recall of a Crown witness should be permitted is highly fact specific to the case. He did not find that recall was restricted solely to allowing for correction or inadvertent omissions in the evidence: McKinnon at para 15. He found that Crown counsel is entitled to modify its strategy or approach as the trial proceeds, provided this does not result in unfairness to the accused. Para. 23. Where the Crown seeks to adduce additional evidence, it may inevitably fill in gaps in its case. He found the Crown is entitled to do this until it closes its case, at which time, the accused will be in a position to know the case against him: McKinnon at para. 28. He found that the prejudice to the defence can be corrected by cross-examination of the re-called witnesses, by the recall of other witnesses and by striking portions of the record.
My Analysis
[19] In this case, the Crown is seeking to recall Ricardo Silva within its own case, albeit late in the case. I find that I have a wide latitude to exercise my discretion to permit the Crown to recall a witness within its own case before it closes its case. The guiding principle in the exercise of my discretion at this stage is trial fairness.
[20] I must consider any prejudice to the accused and if that prejudice can be mitigated. The “prejudice” I am dealing with is legal prejudice. The fact that the evidence may be evidence which tends to implicate the accused does not lead to a conclusion of prejudice. The inquiry into prejudice is focused not on the effect the evidence may have on the outcome of the trial, but on its effect on the accused to make full answer and defence. A just and fair trial is one which gets at the truth, while respecting the fundamental right of the accused to make full answer and defence.
[21] I accept that the relevance of Ricardo Silva’s evidence about the airsoft gun he took from Josue Silva was unknown to the Crown at the time they called Ricardo Silva as their first witness on the trial. If Mr. Silva had been cross-examined about his son’s possession of the airsoft gun, the Crown would have been permitted to ask questions in reply. The theory of the Defence, that Josue Silva may have brought a gun to the bush party, did not start to be developed until after Ricardo Silva testified. That theory would not have been evident from the evidence in the case known to the Crown.
[22] Given the Defence theory and the questions put to other witnesses, I find Ricardo Silva’s testimony on this issue is relevant and material to the issue of self-defence. The Defence submits that it is entirely possible that Josue Silva could have simply gone out and bought another airsoft gun. While I agree that is entirely possible and I am sure it will be put to the witness, I find that does not detract from the relevance of Ricardo Silva’s evidence on the airsoft gun that he took from his son and its location on the night of the shooting.
[23] I have considered the Defence position that even if the Crown were entitled to recall Mr. Silva after the Defence theory emerged, it should have done so earlier before he sat in for most of the evidence at trial.
[24] I find that while it would have been preferable for the Crown to have recalled Mr. Silva earlier in the trial once the issue of the airsoft gun became apparent, the accused has not been prejudiced by the request being made at this time, or any prejudice that he may suffer can be mitigated by cross-examination of Mr. Silva or by recalling other witnesses if that is the request of the Defence after Mr. Silva testifies.
[25] The Crown proposed to only ask Mr. Silva about the contents of his statement that he made to the police in March 2022 to the effect that he had taken Josue Silva’s airsoft gun away from him and that it was locked in Ricardo Silva’s safe on the night Josue was shot. The statement was disclosed to Defence over two years ago. The jury is aware that Ricardo Silva turned over an airsoft pistol to Detective Budzyn. They are aware that Ricardo Silva has been sitting in the courtroom during the testimony of other witnesses and he can be cross-examined on this fact. I acknowledge that Mr. Silva is now aware of a video that could potentially be used to cross-examine him, however I find that he already provided a statement and if he strays from that statement, the Defence will still be able to impeach him so there is little prejudice arising.
[26] Overall, keeping in mind the central issue of trial fairness, I find that I should exercise my discretion to permit the Crown to recall Ricardo Silva. His testimony shall be limited to evidence arising from the statement he gave the police in March 2022 about the airsoft gun he provided to the police.
[27] Any prejudice arising from the recalling of Mr. Silva can be addressed by his cross-examination and by the recalling of other witnesses on the same issue if that remedy is sought by the Defence following Mr. Silva’s testimony.
Justice P.J. Moore
Released: March 19, 2025