Court of Appeal for Ontario

Date: January 25, 2018 Docket: C62613

Judges: Strathy C.J.O., Doherty J.A., and McCombs J. (Ad Hoc)

Between

Her Majesty the Queen Respondent

and

Jennifer Dagenais Appellant

Counsel

Michael Dineen and Mark Halfyard, for the appellant

Randy Schwartz and Erica Whitford, for the respondent

Heard

November 7, 2017

Appeal

On appeal from the conviction entered on March 23, 2016 by Justice Dale Parayeski of the Superior Court of Justice, sitting without a jury.

Endorsement

McCombs J. (ad hoc):

[1] Introduction

1On March 23, 2016, the appellant was convicted of three counts: being an accessory after the fact to murder, obstructing police, and public mischief. She appeals only her conviction on the accessory charge.

2For the reasons that follow, I would allow the appeal and enter an acquittal. In my view, a review of the trial record demonstrates that the appellant's conviction was based on a theory of liability that fell outside the scope of the indictment.

Overview

3Tyler Johnson was shot to death on November 30, 2013 in Hamilton, Ontario at about 3:00 a.m. Four men, Joshua Barreira, his brother Brandon Barreira, Chad Davidson, and Louis Rebelo, were later arrested for first-degree murder. The appellant and her friend Ashley Dore-Davidson were arrested for their alleged roles as accessories after the fact to the murder.

4The appellant did not call any evidence at trial. Trial counsel conceded guilt on the obstruct police and public mischief charges, but argued that the Crown had failed to prove the charge of being an accessory after the fact to murder.

5The focus of the appellant's trial was on her conduct in trying to help her boyfriend Joshua Barreira avoid justice. Joshua Barreira was alleged to be one of three men guilty of murder as a party to the shooting carried out by his friend Chad Davidson.

6On May 11, 2017, more than a year after the appellant's trial, three of the men, Chad Davidson, Joshua Barreira, and Brandon Barreira, were convicted of first-degree murder. The fourth man, Louis Rebelo, was convicted of manslaughter.

7Section 592 of the Criminal Code permits proceeding with an accessory after the fact charge prior to the principal's trial. However, proceeding in this manner places an added burden on the Crown, because proof of guilt of the principal offender is an essential element of the crime of being an accessory after the fact: R. v. Duong (1998), 124 C.C.C. (3d) 392 (Ont. C.A.), at para. 27. If the principal's murder conviction precedes the accessory after the fact trial, s. 657.2(2) of the Criminal Code permits evidence of the conviction to be admitted at trial as proof of the principal's guilt. By proceeding with the appellant's trial prior to the murder trial, the Crown could not rely on this provision and was required to prove that the principal was himself guilty of murder.

8In addition to evidence concerning the murder and the identity and roles of the alleged murderers, the Crown's case against the appellant rested on two main bodies of evidence:

i) About three hours after the murder, the appellant fled the city with Joshua Barreira in a car registered in her name. When the car was involved in an accident, they abandoned the accident scene. The next day the appellant falsely reported the car stolen.

ii) About two weeks later, the appellant married Joshua Barreira in a joint wedding with the shooter Chad Davidson and his long-time girlfriend, Ashley Dore-Davidson. The couples each acted as witnesses to the other's wedding. There was evidence that the marriages were for the purpose of invoking the then-existing spousal incompetency rule.[1]

9The trial judge found that the Crown had failed to prove that Joshua Barreira was guilty of murder. He found that only the shooter, Chad Davidson, had been proven guilty of murder. Since proof that the principal committed murder is an essential element of the charge faced by the appellant, she could not be convicted as an accessory after the fact to murder committed by Joshua Barreira.

10Rather than acquitting the appellant, the trial judge proceeded to convict her on the basis that she had been Chad Davidson's accessory by serving as a witness to his wedding.

11I have concluded that a review of the trial record reveals that the scope of the charge faced by the appellant was limited to her actions in relation to Joshua Barreira and did not encompass Chad Davidson as an alternate principal offender. The trial judge found that the Crown had not proven that Joshua Barreira committed murder. Therefore the Crown had failed to prove an essential element of the accessoryship charge faced by the appellant.

12I would allow the appeal and enter an acquittal for the reasons that follow.

A. THE GROUNDS OF APPEAL

13The appellant advances four grounds of appeal:

1. The trial judge erred in finding that witnessing a non-fraudulent wedding could constitute the actus reus for being an accessory after the fact;

2. The trial judge erred by interpreting the accessory charge as applying to multiple "transactions";

3. The trial judge erred by convicting the Appellant on the basis of a theory of liability that fell outside the scope of the indictment and had not fairly been raised at trial; and

4. The trial judge's reasons for conviction were insufficient.

14I would allow the appeal on the third ground.

15To explain my conclusion, I will briefly review the trial record.

B. THE APPELLANT'S TRIAL

(1) The Broad Wording of the Accessory Count

16The accessory count was framed in the broadest of terms. It alleged that the appellant, in the two and one-half months between the date of the murder on November 30, 2013, and her arrest on February 14, 2014, in the City of Hamilton:

…did commit accessory after the fact to murder, contrary to the provisions of Section 240 of the Criminal Code.

17The indictment contained no information identifying how the appellant was alleged to have committed the offence, or the principal offender or offenders whom she was alleged to have helped.

(2) The Crown's Opening Statement

18Crown counsel's opening statement referenced the appellant's conduct only in relation to her boyfriend, Joshua Barreira. Although the Crown opening referred to the joint wedding, nothing in the opening statement signalled that the appellant was charged with assisting anyone other than her boyfriend, Joshua Barreira.

19Unsurprisingly, in light of the Crown's opening statement, defence counsel's focus throughout the trial was on Joshua Barreira's culpability for murder, and the appellant's conduct in assisting Joshua Barreira.

(3) The Evidence at Trial

The Murder

20Homicide officer Detective Sergeant Jason Cattle testified that Tyler Johnson was killed by a single shot to the chest outside a restaurant in downtown Hamilton shortly after 3:00 a.m. on November 30, 2013. The relevant events were captured on surveillance videos, some of which were played during Detective Cattle's testimony. The footage showed Chad Davidson and Joshua Barreira walking together toward the victim. Brandon Barreira and Louis Rebelo are also seen in the vicinity of the victim. Davidson is seen holding a handgun at his side. After a brief struggle, Davidson fired a fatal shot into the victim's chest. The four men then fled the scene.

Events Shortly After the Murder

(i) Brandon Barreira Calls His Mother from Hamilton Asking to Be Picked Up

21The evidence showed that about an hour after the murder, Brandon Barreira called his mother, Marta Leite, at her home in Cambridge, and asked to be picked up in Hamilton and driven back home. Ms. Leite, with her common-law partner Howard Puterman driving, made the 30 to 45 minute drive to Hamilton, and picked up Brandon Barreira as well as Louis Rebelo, who unexpectedly joined them.

(ii) The Accident

22The collective evidence of various witnesses established that about three hours after the murder, a Jaguar registered to the appellant was involved in an accident as it merged from a Hamilton on-ramp onto Highway 403. The appellant and Joshua Barreira were observed standing on the shoulder. The badly damaged car was in the middle of the highway.

(iii) The Drive Back to Cambridge

23Mr. Puterman testified that shortly after they merged onto Highway 403 from Hamilton, they encountered the accident. As he approached the accident scene, someone "screamed out that that was Josh's car". Mr. Puterman pulled over just past the accident scene, got out, and walked back. He saw the appellant standing by herself, and Joshua Barreira soon appeared. Mr. Puterman told them he'd be in his vehicle whenever they were ready. He returned to his vehicle, and within a few minutes, the appellant and Joshua Barreira got in. Mr. Puterman returned to their home in Cambridge. The badly-damaged Jaguar was abandoned in the middle of the highway.

(iv) The Appellant's False Report That Her Car Had Been Stolen

24Evidence was led that the appellant called 911 shortly after 3:00 p.m. on December 30, to report that her car had been stolen. A recording and a transcript of the call were tendered in evidence. The 911 operator advised the appellant that the OPP had some involvement with her vehicle and she needed to contact the OPP. The appellant was given an OPP number to contact. She called about an hour later and repeated her false claim to the OPP officer who was investigating the "fail to remain collision" involving the appellant's Jaguar. She agreed to meet with the officer the following morning to provide a statement, but she did not attend. The officer made repeated efforts to contact the appellant but was unsuccessful.

25The appellant's false report led to the public mischief and obstruct police charges that were not contested at trial.

The Arrest of Brandon Barreira

26Brandon Barreira was arrested on December 11, 2013, at his mother's home in Cambridge. Reports of his arrest were on the news along with video footage depicting Joshua Barreira, Chad Davidson, and Louis Rebelo.

The Double Wedding

i) The overheard conversation about getting married

27A casual friend of Ashley Dore-Davidson testified that on December 12, the day after Brandon Barreira's arrest, Ashley showed up unexpectedly with Chad Davidson and another couple she introduced as Jenn and Josh. Ashley asked if it was okay if the four stayed overnight at her apartment and she agreed.

28The witness testified that the following morning, December 13, she overheard parts of a conversation in which Ashley was suggesting that the four of them should get married: Ashley to Chad, and Jenn to Josh. The witness testified that Jenn and Josh were opposed to the suggestion, and Ashley said something like "this is what we have to do and that the women wouldn't have to testify, or talk to the police if they were married to each other."

ii) The wedding itself

29That same day, on December 13, two days after Brandon Barreira was arrested, the appellant married Joshua Barreira in a joint wedding along with Ashley Dore-Davidson and Chad Davidson. The Crown position was that the couples' hasty marriages were arranged because the arrest of Brandon Barreira and the news reports led them to fear that Joshua Barreira and Chad Davidson's arrests were imminent.

30The court heard evidence that the appellant and Ashley Dore-Davidson each obtained "rush" marriage licenses that day. Later that same day they were married in a joint ceremony. No guests were present. They each acted as witnesses to the other's wedding.

Evidence of Ashley Dore-Davidson

31Ashley Dore-Davidson testified. She was clearly a reluctant witness. Despite having recently pleaded guilty to being an accessory after the fact to the murder of Tyler Johnson committed by Chad Davidson, she denied knowing who shot the victim. She claimed that she had not read the disclosure and had not listened as the facts were read in at her guilty plea. She refused to read a transcript of her guilty plea when invited to do so by the Crown, saying:

I don't want to. 'Cause as far as I'm concerned, I pled guilty just to get out of jail. I pled to whatever, I didn't care, as long as it got me out of jail faster. So I don't want to read it. I'm out in 10 days, so I don't care.

32Ms. Dore-Davidson confirmed that she had suggested the joint wedding, but testified that she never discussed the shooting with the appellant. She agreed that the couples signed as witnesses to each other's weddings, but was never asked whether there had been discussion about witnessing each other's wedding.

Evidence of Lindsay Dagenais

33Lindsay Dagenais, the appellant's older sister, testified that she disapproved of the appellant's relationship with Joshua Barreira. She testified that she learned that her sister had gotten married in a joint wedding with Ashley Dore-Davidson and Chad Davidson. She testified that on the advice of her sister's lawyer, she did not discuss the murder with her. She was asked whether she ever asked the appellant why Chad Davidson acted as a witness at her wedding and she said she did not. She was not asked the key question upon which the appellant's conviction was ultimately founded: whether she knew why the appellant had acted as a witness to the Dore-Davidson wedding.

The Focus of Crown and Defence Counsel in Examination of Witnesses at Trial

34My review of the evidence at trial leads me to conclude that the appellant's witnessing of Chad Davidson's wedding to Ashley Dore-Davidson was never on the radar as an alternate theory of liability.

35On the contrary, the focus of both Crown and defence counsel was on the appellant's conduct in relation to a single principal, Joshua Barreira. Nothing in the evidence signalled that the Crown was relying on an alternate theory of accessoryship with Chad Davidson as the principal.

(4) Closing submissions of Crown and defence counsel

Crown submissions

36Crown counsel's closing submissions focused upon the appellant's efforts to help Joshua Barreira avoid justice.

37Crown counsel supplemented her oral submissions with written submissions. Crown counsel pointed out that the written submissions had been prepared using Watt's Manual of Criminal Jury Instructions. Paragraph 12 stated:

Using Final Instructions for "Accessory After the Fact" from Watt's jury instructions, the Crown must prove the essential elements beyond a reasonable doubt including:

(i) That Brandon Barreira, Joshua Barreira, Chad Davidson and Louis Rebelo committed murder;

(ii) That Jennifer Dagenais knew that the principals had committed murder;

(iii) That Jennifer Dagenais provided assistance to the principals ; and

(iv) That Jennifer Dagenais provided assistance for the purpose of helping the principals to escape. (emphasis added)

38The portion referred to above refers to "the principals", and at other points in the written submissions"the principals" are referred to as "the men." However, as I will discuss shortly, when the written submissions reach the question contained in part (iv), the submissions no longer refer to "the principals" or "the men", but instead refer only to a single individual, Joshua Barreira:

What is important here is Jennifer Dagenais' purpose, not the effect of what she did. Crown counsel must prove beyond a reasonable doubt that Jennifer Dagenais did what she did for the purpose of helping Joshua Barreira escape. Whether her conduct actually did help Joshua Barreira escape may help you decide what Jennifer Dagenais' purpose was in giving assistance, but Crown counsel does not have to prove that what Jennifer Dagenais did actually achieved that purpose.

To determine Jennifer Dagenais' state of mind, her purpose in providing assistance to Joshua Barreira you should consider:

• What she did or did not do

• How she did or did not do it; and

• What she said or did not say about it.

All these things, and the circumstances in which they happened, may help you decide whether Jennifer Dagenais' purpose in providing assistance to Joshua Barreira was to enable him to escape. Use your good common sense. [Emphasis added.]

39It can be seen by reference to the above passage from the Crown's written submissions that the focus of the appellant's accessory charge shifted from "the principals", to a single principal, namely Joshua Barreira.

40The Crown's written submissions then turned to a discussion of the evidence concerning whether the appellant, with the requisite intent, provided assistance to Joshua Barreira. In support of this discussion, the Crown listed 22 bullet-points. The 18th bullet-point states:

• By being a witness to Ashley and Chad [ sic ] wedding, Jennifer Dagenais was also assisting in protecting Chad Davidson so Ashley would not have to testify against her now husband.

41The context of this bullet-point reference makes it clear that the Crown was relying on the appellant's witnessing of the Dore-Davidson wedding as a piece of circumstantial evidence supporting the Crown's position that the appellant was guilty of accessoryship in relation to Joshua Barreira, and not as a stand-alone alternate theory of liability in relation to Chad Davidson, an entirely different principal.

Defence Submissions

42Defence counsel's submissions addressed the case the appellant was required to meet: a charge of being an accessory after the fact to murder committed by the principal, Joshua Barreira. His submissions show that he recognized, correctly in my view, that the case against the appellant depended on proof that Joshua Barreira was guilty of murder; that she knew or was wilfully blind to his being a party to murder; and that she assisted him in trying to escape justice.

43Defence counsel first argued that the Crown's case fell short of establishing an essential element of the offence: that Joshua Barreira was guilty of murder. He next argued that entering into a valid marriage for the purpose of invoking a legal right (spousal immunity) could not form the actus reus of the offence of accessoryship. In support of this submission, he relied on R. v. Hawkins (1996), 111 C.C.C. (3d) 129 (S.C.C.), and R. v. Nguyen, 2015 ONCA 278, 125 O.R. (3d) 321.

44Defence counsel made no submissions concerning the appellant's conduct with respect to assisting Chad Davidson, but restricted his submissions to what he clearly regarded as the case to meet: whether the Crown had established the accessory charge against the appellant in relation to her conduct in assisting Joshua Barreira.

45Defence counsel did not address the issue of whether witnessing another principal's wedding could support the charge. His failure to address the witnessing issue as a basis for liability is understandable. Given this trial record, counsel reasonably understood that the appellant was charged only in relation to her conduct on behalf of Joshua Barreira.

46When defence counsel completed his submissions, Crown counsel made no submissions in reply. At no point did the trial judge say anything to counsel that could suggest that he was considering a theory of liability based on the appellant's actions in relation to the shooter, Chad Davidson.

C. THE TRIAL JUDGE'S REASONS FOR JUDGMENT

47The trial judge reserved judgment. In delivering his oral reasons for judgment on the return date, he identified what he understood to be three bases of potential liability of the appellant:

1. That she was assisting Joshua Barreira to escape when a motor vehicle accident occurred on November 30, 2013;

2. That by marrying Joshua Barreira and thus creating her right to invoke the spousal incompetency rule relative to testimony, she was assisting Joshua Barreira to avoid criminal liability; and

3. That by serving as a witness to the marriage of Chad Davidson and Ashley Dore-Davidson, she assisted the former to avoid criminal liability by permitting the latter to invoke the spousal incompetency rule.

48The trial judge commented on what he understood to be the third basis of liability by stating: "if the third point sounds convoluted, that is because it is convoluted."

49With respect, the trial judge erred in identifying the appellant's actions in relation to Chad Davidson as an alternative theory of the Crown. As I have stated, my review of the trial record reveals that the appellant was not facing a charge involving Chad Davidson as the principal to her accessoryship charge.

50The trial judge held that "the Crown has failed to prove beyond a reasonable doubt that Joshua Barreira was a party to the killing". He concluded, however, that the evidence did establish Chad Davidson's guilt for murder. Since Joshua Barreira had not been proven guilty of murder, the appellant could not be convicted for her conduct in helping him escape justice: Duong, at para. 27.

51The trial judge found, however, that by witnessing the Dore-Davidson wedding, the appellant provided assistance to Chad Davidson to avoid justice, and that "at least part" of her purpose was to "help him avoid criminal liability". Based on those findings, he convicted the appellant of the accessory charge.

52I note as well that in his reasons for sentence, on April 15, 2016, the trial judge acknowledged that the appellant's conviction was founded on a theory of liability that had not been advanced by the Crown. He stated: "there is merit in defence counsel's observation that my route to the finding of guilt here was not one put forth by the Crown " (emphasis added).

D. DISCUSSION AND CONCLUSION

53As will be clear by now, my review of the trial record has led me to conclude that the appellant's charge of being an accessory after the fact to murder related to her conduct in relation to Joshua Barreira only, and not to Chad Davidson.

54The trial judge founded the appellant's conviction on a basis that was beyond the reach of the charge she faced. Once the trial judge found that Joshua Barreira had not been proved to have committed the murder, the Crown had failed to prove a necessary element of the offence: Duong, at para. 27. The appellant was entitled to an acquittal.

55It is well-established that, subject to due process concerns, a conviction may be founded on a theory of liability that has not been advanced by the Crown, provided that theory is available on the evidence: R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 19; R. v. Khawaja (2010), 2010 ONCA 862, 273 C.C.C. (3d) 415 at paras. 143-45 (Ont. C.A.); R. v. Ranger (2003), 67 O.R. (3d) 1, at paras. 34-35 (C.A.); R. v. Pawluk, 2017 ONCA 863.

56In this case, however, the appellant's conviction was based on a theory of liability that was not founded in the evidence and never advanced at trial.

57I would allow the appeal, set aside the conviction, and enter an acquittal.

58Given my conclusions, it is not necessary to address the other grounds of appeal.

Released: January 25, 2018 ("G.S.")

"D. McCombs J. (ad hoc)"

"I agree. G.R. Strathy C.J.O."

"I agree. Doherty J.A."

Footnotes

1The obstruct police charge was stayed under the rule against multiple convictions for the same unlawful act: R. v. Kienapple, [1975] 1 S.C.R. 729.

2The Canada Evidence Act was later amended and the spousal non-compellability provisions contained in s. 4(4) and s. 4(5) were repealed: 2015, c.13, s. 52(2.1). However, the spousal privilege provisions contained in s. 3 of the Act remain.