Ontario Superior Court of Justice
Court File No.: CR22-393
Date: 2025-04-28
Between
His Majesty the King
and
Carlos Guerra Guerra
J. Moser, K. Mildred, for the Crown
R. Golec, for the Defendant
Heard: March 21, 2025 and March 25, 2025
Justice P.J. Moore
Overview
[1] This is the sentencing of Carlos Guerra Guerra for second degree murder, assault with a weapon, obstructing justice, and intimidation of a justice participant.
[2] On January 3, 2025, a jury found Carlos Guerra Guerra guilty of second degree murder and assault with a weapon following a 12-week jury trial that commenced with jury selection on October 15, 2024.
[3] Following the trial, Carlos Guerra Guerra pled guilty and was found guilty of two additional charges on a separate indictment which had been severed prior to trial. Those charges are obstructing justice in relation to telling Emily Altmann to delete all their text messages and not to say anything; and intimidation of a justice participant for threatening other witnesses. The Crown relies on the evidence at trial and Mr. Guerra Guerra’s admissions, during his evidence at trial, to committing these offences.
The Facts
[4] Section 724(3) of the Criminal Code, RSC 1985, c C-46 allows me to make findings of fact essential to the jury’s verdict and also to make findings of fact disclosed by the evidence. In doing so, I must accept as proven all factual implications, express or implied, that are essential to the jury’s verdict of guilty. If a factual implication is ambiguous, I should not attempt to follow the logical process of the jury, but make my own independent determination of the relevant facts. In order to rely on an aggravating fact, I must be satisfied of that fact beyond a reasonable doubt. I should only find such facts as are necessary to permit the imposition of a proper sentence. See: R. v. Brown, [1991] 2 S.C.R. 518, at p. 523; R. v. Ferguson, 2008 SCC 6, paras. 16-19.
Undisputed Facts / Facts Necessarily Found by the Jury
[5] The charges arose from an incident in the early morning hours of July 31, 2021 at a bush party in London, Ontario. The party was a big bonfire in a bush lot and was to celebrate a birthday. It was attended by many partygoers, mostly high school students from local high schools and some first-year university students. There were up to 150 people present at the party at its peak.
[6] Mr. Guerra Guerra was called to the party by Emily Altmann who claimed that she was being harassed or threatened by a group of ten males at the party. Ms. Altmann had earlier been involved in an altercation with another female, over a thrown drink and some photos/videos being taken, which led to her group and the other female’s group engaging in a verbal altercation and Ms. Altmann’s group being told to leave the party.
[7] Logan Marshall was the boyfriend of the female accused of throwing the drink and taking the photos/videos who was involved in the verbal altercation with Ms. Altmann. He became involved in the verbal altercation along with his best friend Josue Silva and six other male friends and they demanded, including through yelling and swearing, that Ms. Altmann’s group leave the party.
[8] Mr. Guerra Guerra was out at another party on the other side of town with Dylan Schaap, Mr. Schaap’s girlfriend and another female friend of Mr. Guerra Guerra, when he received the call/texts from Ms. Altmann telling him that she was about to be beaten up by ten guys at a bush party. When Mr. Guerra Guerra and his three friends (collectively referred to as the “Guerra Guerra group”) arrived at the bush party location, Ms. Altmann was already out of the bush party and standing with two female friends opposite the entrance to the trail leading to the party. Although Mr. Guerra Guerra initially thought that a group approaching Ms. Altmann might be of concern, that group simply walked past her and her friends. Ms. Altmann was unharmed and not in any danger at that point.
[9] Mr. Guerra Guerra had in his possession a loaded handgun and took it with him in a shoulder bag into the party. He testified that he had retrieved the firearm earlier that day, after work, from a cache of firearms he was keeping for his friend Mr. Schaap. He had then gone to his female friend’s house to have his hair put in braids, and after that he went to run errands with Mr. Schaap and his girlfriend.
[10] Mr. Guerra Guerra had told Dylan Schaap that he was carrying a gun at some point prior to attending the party. Several witnesses observed Mr. Schaap armed with a machete after he exited the vehicle before heading into the party. Mr. Guerra Guerra and Mr. Schaap wore masks over their faces to hide their identities. The Guerra Guerra group and Ms. Altmann and her two friends as well as another friend, along with her boyfriend Mac Tulloch, went back down the path to the party.
[11] Emily Altmann attempted to call the girl she was in the dispute with as well as Logan Marshall on an Instagram app, but they did not answer her calls.
[12] After a period of time, the Altmann/Guerra Guerra groups decided to leave the party and when leaving the bush party they encountered Logan Marshall, Josue Silva and a third male. Mr. Guerra Guerra and Mr. Schaap engaged in a physical altercation with the males. Logan Marshall was attacked by Mr. Schaap and struck with the blunt end of his machete on the head causing him a significant head injury. Mr. Marshall was able to scramble away into the bush and fled. He was later taken to the hospital and diagnosed with a concussion.
[13] Josue Silva and possibly a second male became involved in a physical altercation with Mr. Guerra Guerra and they fell to the ground. Mr. Silva was still wearing his backpack. Mr. Guerra Guerra shot Mr. Silva in the abdomen with his gun. Based on the jury’s verdict, Mr. Guerra Guerra intended to kill Mr. Silva or to cause him grievous bodily harm which he knew would likely result in his death, when he shot Mr. Silva. He was not acting in self-defence or under provocation at the time.
[14] The shooting occurred at about 1:08 a.m. on July 31, 2021. The bullet went through Mr. Silva’s abdomen, out his back and through the backpack. Mr. Silva remained conscious for a period of time but was found to be vital signs absent at 1:43 a.m. and was pronounced deceased at the hospital at 2:11 a.m.
[15] After Mr. Guerra Guerra fired the gun, he told his friends to run. Once at the entrance to Pack Road, he told his female friend to slow down or walk in order to avoid suspicion from others. Their group returned to Mr. Guerra Guerra’s vehicle and he drove away from the scene at a normal speed. The group went to Mr. Schaap’s apartment and Mr. Guerra Guerra and Mr. Schaap came up with a joint fabricated story to tell the police if they were questioned. All four individuals agreed to follow the plan.
[16] For the purposes of the obstructing justice and intimidation counts only, the Court heard evidence, and Mr. Guerra Guerra admitted during his testimony, that in a text conversation with Ms. Altmann starting at 1:13 a.m., Mr. Guerra Guerra said “don’t say nun” and told her several times to delete all their messages to each other. Ms. Altmann did delete all the messages from her phone. Fortunately, the messages were stored in the cloud and accessed by the police through Ms. Altmann’s Macbook computer, pursuant to a search warrant. Mr. Guerra Guerra also told Ms. Altmann to “tell everyone keep their fucking mouths shut”, “if he dies you already know what time it is”, “make sure everyone understands to forget the night” and lastly, “If anyone in your group snitched you know what’s gonna happen to them.” Ms. Altmann passed on these messages to her friends and the messages initially had the desired effect, as the witnesses were not truthful or forthcoming with the police in their initial statements.
[17] Mr. Guerra Guerra then returned to his father’s apartment, where he threw out his clothes to avoid detection. His father was out of town. He also removed his braids. He returned the loaded gun and other guns to Mr. Schaap at his apartment so the murder weapon could be disposed of.
Disputed Aggravating Facts
[18] The Crown must prove any disputed aggravating facts beyond a reasonable doubt. Most of the disputed aggravating facts involve Mr. Silva’s actions that evening and whether or not he was armed with a machete; Mr. Guerra Guerra’s knowledge and intentions prior to the shooting; and Mr. Guerra Guerra’s post-offence conduct after the shooting. I have therefore divided the disputed facts into three categories: 1) Mr. Silva’s conduct; 2) Mr. Guerra Guerra’s knowledge and conduct prior to the shooting; and 3) Mr. Guerra Guerra’s post-offence conduct.
Mr. Silva’s Conduct
[19] The Court heard from Isabella Restrepo, Rachel Johnson and Logan Marshall about receiving information, after the verbal altercation with Ms. Altmann, warning them that there were people coming back into the party armed with a weapon(s).
[20] They testified that they took the warning seriously enough to go and hide in the deeper bushes. The group hiding included Ms. Restrepo, Ms. Johnson, Matt Swann, Mr. Silva and Mr. Marshall. The three witnesses testified that they were afraid and that at no point did anyone in the group indicate that they were armed with a weapon or discuss weapons, including Mr. Silva. No one at the party that evening saw Mr. Silva or anyone else other than Mr. Schaap and Mr. Guerra Guerra armed with a weapon.
[21] Mr. Guerra Guerra testified that at one point during the physical altercation, Mr. Silva was standing over him armed with a machete and that was when he shot him. The Defence contends that even though the jury rejected the defence of self-defence, it does not necessarily follow that Mr. Silva did not have a machete with him. They rely on the evidence of Mr. Silva’s DNA on the machete handle of the machete found at the scene, Mr. Guerra Guerra’s testimony, the testimony of Garrett McCabe that the machete he saw being swung around near the fire appeared “dark coloured”, the evidence that the machete recovered from Mr. Guerra Guerra’s vehicle after the shooting had a dark handle and dark blade, and the evidence that Mr. Silva had previously been seen with a similar machete at his residence to the one found at the scene. The Crown submits that Josue Silva was unarmed and that the machete found at the scene was the one brought there by Mr. Schaap and left behind. The Crown relies on the evidence of witnesses at the party that Mr. Silva was not armed, the evidence of Josh Dickie that the machete blade of Mr. Schaap’s machete was chrome, and the video of Dylan Schaap returning to the vehicle after the shooting. I agree that the jury’s verdict does not necessarily mean Mr. Silva did not have a machete that evening. I find that it is possible that the jury could have rejected the defence of self-defence without finding that Mr. Silva was unarmed. I must therefore determine this issue myself. For the reasons that follow, I am satisfied beyond a reasonable doubt that Mr. Silva was unarmed.
[22] I find the evidence of the witnesses called by the Crown to be credible and reliable, with the exception of Jessica Falardeau which I warned the jury not to rely upon without corroboration. The evidence of different groups of individuals who did not know each other was generally consistent. I find that the Marshall/Silva group were warned and did indeed go into hiding when they learned of possible armed individuals attending the party.
I do not find that they were armed and “laying in wait” as was suggested by Defence. I do not find it at all plausible that, if Josue Silva had a machete in his possession while his group was hiding in the bushes, he would not have shared that fact with the others including his best friend, Logan Marshall. I believe the evidence of the members of the group who testified that they were afraid, that they were not armed, and that there was no discussion of having weapons. No one, other than Mr. Guerra Guerra, ever saw Mr. Silva with a weapon that night. I accept their evidence that they emerged from hiding, intending on locating their other friends and leaving the party.
[23] The expert from CFS provided several other alternatives on how Mr. Silva’s DNA could have been on the handle of the machete that was found at the scene. Braeden Bubb-Clarke testified that he had seen Josue Silva with a machete one time before, at his house. It was “like any other one that I have seen”. He could not describe the handle, but remembered the blade being a silvery colour. He was shown a photo of the machete found at the scene and testified that it may or may not have been the same one he saw Mr. Silva with at his home, the structure and shape were similar. He had no knowledge of Mr. Silva having a machete anywhere else other than at his house or having a machete at the bush party. He was shown the actual machete found at the scene and agreed the blade colour was the same as the one he recalled Josue Silva having. He was asked about the handle and agreed it “could be” similar. He was asked in cross-examination if he heard anyone later talk about Josue Silva having a machete during the fight and testified that he never heard that.
[24] I accept Mr. McCabe’s evidence that he saw someone with a mask swinging a machete at a tree near the fire. He was not strongly connected with any of the groups at the party and I accept his recollection of this unusual event. The only individuals described as wearing masks that night where Mr. Schaap and Mr. Guerra Guerra. Mr. Tulloch also recalls Mr. Schaap, or “Chapz”, swinging a machete at a tree near the fire. However, I have some concerns about the details in Mr. Tulloch’s evidence which included that people were swinging from a branch and that the other masked person had a shoulder bag with the word “Supreme” on it. Mr. Guerra Guerra described the bag he had that night and it was not a “Supreme” bag. Mr. McCabe testified that he saw the two men off by themselves on the other side of the fire. He gave his statement to police about 13 days after the incident. His evidence that the machete he observed being swung at a tree was dark in colour does not leave me with a doubt that the machete found at the scene could not be the machete Mr. Schaap possessed that night.
[25] Mr. Guerra Guerra made no mention to members of his group that Mr. Silva was armed after they returned to his vehicle and fled the scene. In the days following, even though he continued to have contact with his female friend who was at the bush party with him, he never mentioned to her that the other person he shot was armed and that he was defending himself. I did not find Mr. Guerra Guerra credible in general, given his prior inconsistent statements and the inconsistencies in the timeline he testified to in front of the jury which was almost entirely dismantled by the Crown in cross-examination. In particular, I reject his evidence about Mr. Silva being armed, and his evidence does not leave me with a reasonable doubt on this issue. I have considered the other evidence relied on by the Defence and it does not leave me with a reasonable doubt.
On the evidence that I do accept from the other witnesses at the party, those in hiding with Mr. Silva and those who witnessed the physical altercation, I find beyond a reasonable doubt, and find as a fact, that Mr. Silva did not have a machete at the party and was not armed when he was shot.
Mr. Guerra Guerra’s Knowledge and Conduct Prior to the Shooting
[26] The Crown submits that Mr. Guerra Guerra knew that Mr. Schaap was armed with a machete when they went into the party. Mr. Guerra Guerra denies knowing that Mr. Schaap was armed until they were out by the fire, prior to the confrontation. He says that Mr. Schaap showed him the machete but did not have it out and was not swinging it around. There is no direct evidence that Mr. Guerra Guerra knew that Mr. Schaap was armed before entering the party. The circumstantial evidence, including the fact that he shared with Mr. Schaap that he was armed, the fact that they both donned masks to hide their identities, and the fact that Mr. Schaap was “flashing” the machete to other witnesses after they exited the vehicle, would strongly suggest that Mr. Guerra Guerra was likely aware at that time that Mr. Schaap was also armed, but I am unable to find this fact beyond a reasonable doubt. Mr. Guerra Guerra was certainly aware prior to the confrontation that Mr. Schaap was armed. I also accept the evidence of the witnesses who testified that Mr. Schaap had the machete out near the fire at one point in time and was swinging it around.
[27] The Crown submits that Mr. Guerra Guerra was searching for the individuals who had earlier been harassing Ms. Altmann. The Defence submits that he was not and was simply standing with Mr. Schaap and his girlfriend and he didn’t even know what the other individuals looked like. I find that there is clear evidence that Ms. Altmann was looking for Ms. Restrepo and Mr. Marshall. Her reason for calling Mr. Guerra Guerra was because she was being harassed by a group of males. This is corroborated by the Instagram calls by her to them while they were hiding. There is also evidence from Kaiah Edmonds, who was the female friend that came with Mr. Guerra Guerra to the bush party, that both Ms. Altmann and Mr. Guerra Guerra together were looking for people during some of the time. She testified that they were walking around turning their heads from side to side. This is also the evidence of Jessica Falardeau, although as already noted, I place limited weight on this witness’s evidence, unless corroborated. This evidence of searching makes sense, as it appears the only reason for returning to the party wearing masks was to confront these individuals. The fact that the Altmann group, including Mr. Guerra Guerra, were searching for the Marshall/Silva group is further corroborated by the fact that after Mr. Marshall was identified by one of the Altmann group when he emerged onto the path, Mr. Guerra Guerra immediately confronted him about bothering Ms. Altmann. I am satisfied beyond a reasonable doubt, and find as a fact, that Mr. Guerra Guerra put on a mask, carried a gun, and went looking for the individuals that Ms. Altmann had complained to him about.
[28] The Crown submits that Mr. Guerra Guerra armed himself for a nefarious purpose with the expectation that violence was the likely outcome. They refer to the circumstances of the case as approaching “near first degree murder”. Mr. Guerra Guerra testified that it was never his intention to use the gun in his possession.
[29] The Crown points to the evidence of Mac Tulloch that Mr. Guerra Guerra had a gun in his waistband prior to the confrontation, as further evidence of his intent to use the gun. The Defence challenges the credibility and reliability of Mr. Tulloch’s evidence, submitting that he only mentioned the gun to the police after they confronted him about possibly having a gun himself and that he was only able to describe the top inch of a gun in the darkened woods. I have gone back and reviewed the transcript of Mr. Tulloch’s evidence. He admits that he was not forthright with the police in his first statement, but after speaking to his parents, he called the police back that same day. It is suggested to him that he calls the police back and tells them about Mr. Guerra Guerra having a gun because he is terrified that he will get charged with murder. He testified that he wasn’t worried because he didn’t murder anyone. There is no dispute that this is true.
[30] Mr. Tulloch testified that he saw the gun when he was having a conversation with Mr. Guerra Guerra. He had met Mr. Guerra Guerra previously as Ms. Altmann and his girlfriend were friends. Mr. Guerra Guerra wasn’t showing the gun to him; he could only see the top few centimeters of the gun (where you hold it) sticking out of the waistband of Mr. Guerra Guerra’s pants. Mr. Tulloch’s only familiarity with guns comes from playing first-party shooter games but he believed it was not a revolver based on the shape of the handle. He later testified that when the two pairs were wrestling on the ground, one man with Mr. Schaap and another with Mr. Guerra Guerra, he heard a loud bang but didn’t know which pair it came from. I find that Mr. Tulloch was doing his best to provide the jury with an accurate description of what he recalled. I do not find any support for the suggestion that he made up the part about seeing Mr. Guerra Guerra with a gun to extricate himself from being blamed. He testified that his reluctance to name Mr. Guerra Guerra and Mr. Schaap flowed from his concern for his own safety. Other than the observation he testified to about seeing the top of the gun, it does not appear he made any attempt to place a gun in Mr. Guerra Guerra’s hand. It is Mr. Guerra Guerra who during the course of the trial and then in his testimony admitted to having a gun and being the shooter. The gun used was, in fact, not a revolver. I accept Mr. Tulloch’s evidence that he observed the gun in Mr. Guerra Guerra’s waistband at the fire, prior to the confrontation.
[31] Having considered all the evidence, I accept that when Mr. Guerra Guerra entered the party he, at a minimum, contemplated the use of the gun in his possession, if necessary. On the facts known to him, he was heading into a dark bush area where Ms. Altmann and her group were unwanted and, as he was told, had been harassed by about ten males. He had no information that these males were armed but the sheer number of them against himself and Mr. Schaap, whom he testified he was not aware was armed at the beginning, would lead a reasonable person to have some safety concerns. On the video surveillance, Mr. Guerra Guerra can be seen leading the way into the trail, along with Ms. Altmann. I am satisfied beyond a reasonable doubt and find as a fact that he and Mr. Schaap prepared themselves for a potentially violent confrontation by masking themselves so they could not later be identified. He further prepared himself for the firearm’s use by moving it from his sidebag to his waistband, where it was more readily available to him. I agree with the Defence that I can’t determine if he may have moved it back to the sidebag when the parties being sought could not be located.
[32] On the other hand, although it was only a very short period of time, Mr. Guerra Guerra did not immediately draw his gun when he saw Mr. Marshall and his friends. He only took it out after he was involved in a physical altercation with Mr. Silva. This leads me to conclude that, although I am not satisfied beyond a reasonable doubt that Mr. Guerra Guerra went into the party intending on using his gun, I am satisfied beyond reasonable doubt that he went into the party intending a confrontation and was prepared to use his gun if necessary.
Mr. Guerra Guerra’s Post-Offence Conduct
[33] The Crown asks the Court to find as aggravating facts that Mr. Guerra Guerra:
a. Drove away from the scene at a normal speed to avoid detection.
b. Took out his braids to avoid detection.
c. Planted messages on his phone with “Fireman Red” in an attempt to mislead the police and to corroborate his fabricated story.
d. Participated in a Snapchat conversation with Mr. Schaap and another individual in which they celebrated the shooting of Josue Silva.
[34] It was put to Mr. Guerra Guerra in cross-examination that he drove away from the scene at a normal speed and wasn’t driving erratically. It was then put to him that his reason for his manner of driving was that he didn’t want to get pulled over by police, who would have found him in possession of a firearm that was just used to shoot a man. Mr. Guerra Guerra testified that he doesn’t think that was his thought process at the time, that he was having a lot of thoughts and remembers being out of it. He said “maybe that had something to do with the driving, like I don’t know. Like it’s hard to -for me to try and….”. He was challenged on being out of it given his response 3 minutes later to Ms. Altmann that he was “gucci”.
[35] I have stated that I have a number of concerns with Mr. Guerra Guerra’s veracity about the events in question, but I do note that he was forthcoming and agreed that he “was walking slow, acting cool, not a worry in the world because you didn’t want to attract attention” and admitted to getting rid of his clothes and to other post-offence behaviour. I think this is a relatively minor issue, but am not satisfied beyond a reasonable doubt that his manner of driving was intentional to avoid detection.
[36] The Crown put to Mr. Guerra Guerra that he took out the braids that he had in his hair the night of the shooting, that had taken two hours to put in the previous day, to avoid detection. Mr. Guerra Guerra testified that he took them out because he didn’t wear his headwrap to bed and his braids were all messed up. He was challenged on this evidence as he had earlier said he didn’t sleep that night. He agreed he didn’t sleep but that he went to bed and his braids were messed up. The Crown returned to the issue and again suggested that he took them out because it was a pretty recognizable hairstyle. This time he responded: “And, and, and in fairness to you, like that might have actually been a thought that crossed my mind”. I note that he specifically told the police when they interviewed him that his hair that night had been up in a pony tail. While I don’t find it a significant aggravating factor, I am prepared to find beyond a reasonable doubt that one of the reasons Mr. Guerra Guerra took out his braids was to avoid detection.
[37] After the shooting, Mr. Guerra Guerra had a lengthy text conversation with a friend of his that he called Fireman Red. In the conversation, Mr. Guerra Guerra suggests that he went to the party to help a friend and on his way out a fight broke out amongst other partygoers. He tells an almost verbatim story to the police when he is interviewed shortly after. He also mentions to police that he spoke to his friend Fireman Red about that evening. The Crown theorizes that the Fireman Red conversation was a “plant” by Mr. Guerra Guerra to support his version of the events he gave the police. The Crown relies on the fact that it appears that Mr. Guerra Guerra deleted other evidence between himself and Ms. Altmann, and himself and Mr. Schaap which may have pointed to his guilt but left the Fireman Red conversation intact. The Crown also relies on the fact that the story he told Fireman Red was at times almost word for word what he told the police. While some of Mr. Guerra Guerra’s other post-offence conduct demonstrates him going to significant lengths to inhibit the investigation, and while I find the Crown theory on this point plausible, I do not find that it is the only reasonable explanation and cannot therefore find beyond a reasonable doubt that it was a “planted” story. It is equally possible that Mr. Guerra Guerra spun his tale for his friend without planning on it being found by the police, but later decided to stick to the same story when he spoke to the police. He certainly did choose not to erase the conversation and appeared willing to advise the police that Fireman Red was one of the people he had spoken to about the events at the party.
[38] Lastly, the Crown argues that Mr. Guerra Guerra participated in a Snapchat conversation with Mr. Schaap and a third male, where the group was celebrating the shooting and murder of Josue Silva. There appears to be no real dispute that Mr. Guerra Guerra was part of the conversation and in that conversation the other two appear to be bragging about the shooting. The real question is what role did Mr. Guerra Guerra play. When the third male appears to be laughing about misleading calls and first responders thinking it was a firework until they lifted up Mr. Silva’s shirt and saw a hole, Mr. Guerra Guerra responds: “Holay. He could’ve lived.” “If they took it more serious. Fucking retarded drunk ass teenagers.”. Then later, when the same male is saying that “LO is on the map”, Mr. Guerra Guerra responds, “LO Block”.
[39] I have reviewed the chat several times. Mr. Guerra Guerra clearly doesn’t take umbrage with his friends treating the shooting like a joke. He testified that he didn’t want to burst his friend’s bubble. I do not accept that he was “lamenting” the death of Josue Silva. However, Mr. Guerra Guerra’s comments are limited to text and unlike the voice messages of his friends, the Court does not have the benefit of his intonation. I find that while Mr. Guerra Guerra does not appear to be taking responsibility for Mr. Silva’s death and is instead placing the blame on Mr. Silva’s friends who did not immediately tell 911 it was a gunshot, I am unable to find beyond a reasonable doubt, based on his comments in this conversation, that he was bragging about the death or proud of what he had done. Certainly Mr. Guerra Guerra did not express any remorse for his actions during the chat conversation.
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