) ) Her Majesty the Queen Respondent – v. –, 2013 ONSC 7349

CITATION : R. v. Guerra, 2013 ONSC 7349 OSHAWA COURT FILE NO.: 13325/13 DATE: 20131127 CORRIGENDA: 20131127 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Her Majesty the Queen Respondent – and – Raphael Guerra Applicant – and – Tin Wai Steven Hong, Nathaniel Cain and Mason Gillard-Gatza Co-Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Ron Davidson and Lucas O’Neill, for the Crown David G.

Bayliss, for the Applicant Stephen Lyon for Mason Gillard-Gatza, and as agent for Michael Strathman for Tin Wai Steven Hong Paul Burstein for Nathaniel Cain, and as agent for Anthony Bryant ) ) HEARD: November 22, 2013 REVISED REASONS FOR JUDGMENT (Application for Adjournment) The text of the original endorsement has been corrected with the text of corrigendum (released today’s date) M.F. brown j.: Overview [ 1 ] This is an application brought by the applicant, Raphael Guerra, for an order adjourning and rescheduling his trial in the Superior Court of Justice currently scheduled for pre-trial motions commencing December 2, 2013 and trial proper commencing January 13, 2014. [ 2 ] On October 19, 2011, twenty-one year old Ryan Kennedy was killed during a home invasion robbery.

It is alleged by the Crown that Mr. Guerra drove his three co-defendants, Tin Wai Steven Hong, Nathaniel Cain and Mason Gillard-Gatza, to the home of Justin McKelvey in Minden, Ontario to commit the robbery. It is alleged that once in the area of the residence, Mr. Guerra remained in the car while his co-defendants entered the home with a baseball bat, bear spray and duct tape. In the ensuing melee, Justin McKelvey was injured and Ryan Kennedy sustained fatal head trauma, most likely from the baseball bat, according to the Crown pathologist. [ 3 ] Mr.

Guerra is charged with first degree murder in relation to the death of Mr. Kennedy and attempt murder in relation to the assault on Mr. McKelvey.

Background [4] The date of the alleged offenses was October 19, 2011. Mr. Hong and Mr. Gillard-Gatza were arrested on October 20, 2011,Mr. Guerra, was arrested on October 21, 2011 and Mr. Cain was arrested on October 31, 2011. All four accused are in custody awaitingtheir trial. [5] All four accused were charged on a joint information with the first degree murder of Ryan Kennedy and the attemptedmurder of Justin McKelvey. [6] The preliminary inquiry occurred in Oshawa. Evidence was heard on May 28, 29, 31; June 1, 4, 7, 8; July 4, 5, 12, 13 andSeptember 10, 2012. [7] The submissions on committal for Mr. Hong, Mr.

Gillard-Gatza and Mr. Cain occurred on September 19, 2012. Thesubmissions for committal for Mr. Guerra did not occur at the same time, solely because of the unavailability of Mr. Bayliss, defencecounsel for Mr. Guerra. The three other accused consented to committal on first degree murder and attempt murder. The submissionson committal with respect to Mr. Guerra occurred on January 18, 2013. [8] The ruling of Justice Chester on the committal of Mr. Guerra was rendered on February 14, 2013. Mr.

Guerra wascommitted to stand trial for first degree murder and attempt murder. [9] An application for certiorari to quash the committal of Mr. Guerra was sent by Mr. Bayliss to the Crown on February 15,2013, with an indication that an application for funding from legal aid was proceeding. On February 26, 2013, Mr. Guerra formally fileda notice of application to quash Justice Chester’s order for committal. [10] On March 21, 2013, as the endorsement of Justice Minden reflects, on consent, all four accused, including Mr. Guerra, agreedto the dates for pretrial motions and the trial.

The pretrial motions were fixed to commence December 2, 2013 for two to three weeks,and the trial was fixed for January 13, 2014 for an estimated two and a half months. [11] Mr. Guerra is assisted by Legal Aid Ontario and funding for the application to quash the committal for trial was granted onMay 10, 2013. [12] A complete set of the transcripts of the preliminary hearing were received as of June 4, 2013 and defence materials on theapplication were perfected on September 30, 2013. Mr. Guerra’s application to quash was heard by Justice Salmers on October 28, 2013and dismissed on November 4, 2013. Mr.

Bayliss sent an email to the Crown on November 7, 2013 indicating that Mr. Guerra would beappealing the decision of Justice Salmers and that they had commenced the process of seeking funding for the appeal from Legal AidOntario. Position of the Parties [13] For Mr. Guerra, Mr. Bayliss argues that Mr. Guerra has a right to an appeal to the Court of Appeal for Ontario from thedecision of Justice Salmers of November 4, 2013, pursuant to section 784(1) of the Criminal Code. He submits that the process ofobtaining funding for legal representation on the appeal is anticipated to take a minimum of four weeks. [14] Mr.

Bayliss argues that the appeal has substantial merit and it engages the fundamental issue of constructive murder. Hesubmits that in the appeal, Mr. Guerra questions whether, and under what circumstances, subjective foresight of death, which is theminimum constitutionally required mental state for murder pursuant to R. v. Martineau, (SCC), [1990] 2 S.C.R. 633, canbe established when, he argues, there is no evidence of the defendant’s knowledge before the death occurs. [15] It is Mr.

Bayliss’ position that considering the inherent funding, preparation and scheduling requirements, it is unlikely theappeal could be heard before March, 2014. Mr. Bayliss submits that it would be unfair to force Mr. Guerra to commence a trial on thecharge of first degree murder, subjecting him to the jeopardy of life imprisonment, if his committal for trial on that charge wasincorrect. Mr. Bayliss further submits that Mr. Guerra would not oppose an application to sever him from the indictment to permit thetrial of the co-defendants to proceed as scheduled. [16] Mr.

Davidson for the Crown submits that the Crown is ready to proceed with the pretrial motions on December 2, 2013 andto proceed to trial on January 13, 2014. The Crown seeks the fastest route to a joint trial and is opposed to an order of severance for Mr.Guerra. The Crown submits that the decision of Justice Chester to commit Mr. Guerra to stand trial on first degree murder was a strongdecision and supported by the evidence. Equally, the Crown submits that the decision of Justice Salmers, dismissing the application forcertiorari, was also a strong decision. Mr.

Davidson does concede, however, that there are arguable issues on the appeal of JusticeSalmers’ decision. From the Crown’s perspective, it recognizes the right of appeal of Mr. Guerra and would not be opposed to mydelaying any decision on an adjournment of the trial until Mr. Bayliss has been given the opportunity to see what steps could be taken toexpedite the appeal in this matter. The Crown also agrees that it is unlikely an appeal of the order of Justice Salmers could be heard bythe Court of Appeal before March 2014. [17] The remaining co-accused are opposed to any delay of the trial in this matter. Mr.

Lyon, who acts for Mr. Gillard-Gatza, andappears today as agent for Mr. Strathman, who represents Mr. Hong, submits on behalf of both co-accused that they are concerned withany delay of the trial date in this matter. Both Mr. Hong and Mr. Gillard-Gatza have been in custody for over two years awaiting theirtrial. [18] Mr. Burstein, who appears as agent for Mr. Bryant, the counsel for Mr. Cain, submits that the application for the adjournmentshould be dismissed. He submits that the evidentiary record before me is insufficient to demonstrate this adjournment is necessary.

Inthe alternative, he submits that it would be premature on the evidentiary record that has been presented for me to adjourn the matter. [19] Mr. Burstein argues that, simply put, Mr. Guerra’s right to appeal does not translate into a right to adjourn the trial. Mr.

Burstein argues that when a party is asking for an adjournment of a murder trial, the burden is on that party to show they have done everything possible to avoid asking for an adjournment. He submits that simply was not done in this case. Mr. Burstein also relies on material that was filed on the adjournment application which reflects, in his submission, that not everything that can be done has been done to expedite the appeal process in this matter. Mr. Burstein submits that he would have expected that Mr.

Bayliss would have already gone to the Court of Appeal to at least see if they could set timelines to get the appeal heard before January 2014. Similarly, with respect to legal aid, Mr. Burstein argues that there is no evidence before me that Mr. Bayliss has done everything that can be done to expedite the legal aid funding application. Mr. Burstein also argues that, while not a perfect remedy, Mr.

Guerra’s right of appeal would not be completely frustrated if I dismissed the adjournment application because he would still be able to argue the issue at the end of the Crown’s case by bringing a motion for a directed verdict. Analysis [ 20 ] In these circumstances, I agree with the position of Mr. Burstein in this matter. An adjournment is a discretionary remedy. On the record before me, I am not satisfied that all steps that could reasonably be taken by Mr. Guerra have been taken to avoid asking for an adjournment of the trial. [ 21 ] On February 26, 2013, Mr.

Guerra formally filed a notice of application to quash Justice Chester’s order for committal. Less than a month later, on March 21, 2013, Mr. Lyons appearing for all counsel and all accused, including Mr. Guerra, agreed to the pretrial dates of December 2, 2013, and trial dates of January 13, 2014. [ 22 ] Knowing that pretrial and trial dates had been set on March 21, 2013, there is no evidence before me that Mr. Guerra took any steps to expedite either (

a) the hearing of the certiorari motion, or (

b) the legal aid funding for such an application. As well, there is no evidence before me that Mr. Guerra has taken any steps to expedite a hearing of the appeal in this matter to the Ontario Court of Appeal, or to expedite the legal aid funding for such an appeal. [ 23 ] I also agree with Mr. Burstein that the right to an appeal is not an unfettered right. A right to an appeal in these circumstances does not automatically translate into a right of an adjournment.

In these circumstances, there are also other interests I must balance in determining whether it is in the interests of justice to grant the application. [ 24 ] The three other co-accused have been custody for over two years and they are anxious for their trial. There is also the public interest in seeing that trials are held without unreasonable delay. [ 25 ] Mr. Bayliss argues that should this adjournment application be unsuccessful, his right to an appeal would be frustrated by virtue of the fact that the trial will proceed. I also agree with Mr. Burstein that that submission is not entirely correct because Mr.

Guerra will be free to bring a motion for directed verdict at the end of the Crown’s case to argue virtually the same issue upon which he seeks to quash the committal of Justice Chester and the order of Justice Salmers. [ 26 ] I appreciate that this remedy would not be perfect because it forces Mr. Guerra to have to go to trial and then bring a motion for a directed verdict. However, one cannot say that the harm that would be occasioned to Mr.

Guerra in these circumstances would be irreparable if he still has the opportunity to make the argument at trial. [ 27 ] A similar issue was addressed by the Québec Court of Appeal in R. v. Boutin (1990), 58 C.C.C. (3d) 237. Leave to appeal to the Supreme Court of Canada was refused 59 C.C.C. (3d) iv. In that case, the accused attempted to quash the decision of the preliminary hearing judge to send him to trial on two counts of first degree murder. His application to the Superior Court for certiorari was dismissed and he appealed that decision to the Court of Appeal.

The trial judge, however, wanted to proceed with the trial and was not prepared to delay the trial until the Court of Appeal heard the appeal on the motion to quash. The Court of Appeal dismissed the application for an order staying the holding of the accused’s trial. [ 28 ] In paragraph 48 of that decision, the court acknowledged that the harm occasioned to the accused would not be irreparable if a stay of the trial was not ordered because the constitutional question raised at the preliminary inquiry may be raised again at trial.

Conclusion [ 29 ] Taking into consideration all the factors in this case especially: (

i) the lack of evidence before me that: (

a) Mr. Guerra has taken all reasonable steps to expedite the hearing of the certiorari application and legal aid funding for such hearing, and (

b) Mr. Guerra has taken all reasonable steps to expedite the hearing of the appeal to the Court of Appeal for Ontario of Justice Salmers’ order; (ii) the rights of the other co-accused who have been waiting in custody for their trial and who oppose this adjournment request; (iii) the public interest in seeing a trial held without unreasonable delay; and (iv) the fact that Mr.

Guerra will still have an opportunity to bring a motion for a directed verdict at the close of the Crown’s case; I am of the view that I should exercise my discretion and dismiss the adjournment request. [ 30 ] Accordingly, the application by Mr. Guerra to adjourn the pre-trial motions set for December 2, 2013 and trial set for January 13, 2014 is dismissed.

Justice M.F. Brown Released: November 27, 2013 CORRIGENDA

1. Paragraph 19, first sentence - The reference to Mr. Bayliss has been changed to Mr. Burstein. 2. Paragraph 29, subparagraph (iv) – The period has been changed to a semi-colon.