Court of Appeal for Ontario

Date: 2020-03-18 Judges: Hourigan, Miller and Nordheimer JJ.A.

Docket: C64042 Between: Her Majesty the Queen, Respondent And: Brandon Barreira, Appellant

Docket: C64124 And Between: Her Majesty the Queen, Respondent And: Joshua Barreira, Appellant

Docket: C65065 And Between: Her Majesty the Queen, Respondent And: Chad Davidson, Appellant

Counsel:

• Richard Litkowski and Jessica Zita, for the appellant, Brandon Barreira
• Delmar Doucette and Andrew Furgiuele, for the appellant, Joshua Barreira
• Michael Lacy and Deepa Negandhi, for the appellant, Chad Davidson
• Susan L. Reid and Elena Middelkamp, for the respondent

Heard: February 19 and 20, 2020

On appeal from: The convictions entered by Justice Antonio Skarica of the Superior Court of Justice, sitting with a jury, on May 12, 2017.

Reasons by: Nordheimer J.A.

A. Overview

[1] Brandon Barreira, Joshua Barreira and Chad Davidson each appeal from their convictions for first degree murder after a trial with a jury that took place over a period of approximately twelve weeks.

[2] For the following reasons, I would allow the appeals and order a new trial.

[3] The offences arise out of events that took place shortly after 3:00 a.m. on November 30, 2013 in the Hess Village district of the City of Hamilton. At that time, Tyler Johnson was shot and killed. The police charged the three appellants, along with Louis Rebelo, with first degree murder in Johnson’s death, on the basis that they acted together in a planned and deliberate murder.

[4] It is not necessary, in light of my conclusion, to go into great detail with respect to the events that ultimately led to the shooting of Johnson. A limited review of those events will be sufficient to provide the backdrop for the issues that arise from the trial proceedings. In my reasons, in the interests of clarity, I will refer to the Barreira brothers by their first names and the other parties by their last names.

B. Background

[5] At trial, Davidson admitted, through counsel, that he was the person who shot Johnson. However, he took the position that he had done so instinctively in reaction to a punch directed at him by Johnson, and was therefore guilty of manslaughter only. Brandon, Joshua, and Rebelo, all admitted through counsel that they were present at the scene of the shooting but denied being parties to it. On May 12, 2017, the jury found the three appellants guilty of first degree murder. The jury found Rebelo not guilty of murder but guilty of manslaughter.

[6] Davidson was a crack cocaine addict. His partner, Ashley Dore-Davidson, did not want Davidson to use drugs but testified they had a “don’t ask don’t tell” policy regarding his drug use. Sometimes, she accompanied him to purchases but did not confront him about his drug use. According to Dore-Davidson, Davidson became paranoid when using crack cocaine.

[7] Joshua sold drugs. Davidson sometimes bought crack cocaine from Joshua, and had been to his house on multiple occasions to purchase it. On November 29, 2013, the day before the shooting, Davidson and Dore-Davidson went to Joshua’s place so that Davidson could buy crack cocaine. At that time, Davidson told Joshua that he was going to get more money to buy more crack cocaine later that day. After this transaction, Davidson and Dore-Davidson went to their home on Hamilton Mountain.

[8] Later on in the evening of that same day, Friday, November 29, Brandon, and Joshua were in the Hess Village area. Johnson was also in this area. They were at different bars. By the early morning of Saturday, November 30, both Brandon and Johnson had separately wound up at a Tim Horton’s in the same area. Brandon had called Joshua asking that Joshua pick him up at the Tim Horton’s and Joshua had agreed.

[9] Meanwhile, there had been text messages between Joshua and Davidson about Davidson wanting to buy more crack cocaine. At one point, Joshua used Rebelo’s phone to call Davidson and suggest that, if Davidson wanted more crack cocaine, he should meet Joshua at the Tim Horton’s. Davidson drove there with Dore-Davidson.

[10] Joshua arrived at the Tim Horton’s in his car about a minute after Brandon had arrived. Minutes later, Davidson and Dore-Davidson arrived in their vehicle. Davidson got out of his vehicle and into Joshua’s vehicle, ostensibly to buy crack cocaine. Brandon was also in Joshua’s vehicle. They drove off with Dore-Davidson, who had been joined by Rebelo, following.

[11] Various surveillance videos recorded the travel of the two vehicles. They drove along King Street, across Queen Street, along Main Street, and across Caroline Street, back to the Tim Horton’s on King, a total of eight short city blocks.

[12] At the end of the drive, a few minutes after they had left, Joshua parked in front of another store, Vida La Pita, that was next to the Tim Horton’s. Dore-Davidson parked beside Joshua’s vehicle in front of the Vida La Pita. Due to discontinuities in the surveillance videos, it was not possible to say how far the one vehicle lagged behind the other during the trip.

[13] Brandon, Joshua and Davidson got out of Joshua’s vehicle. They walked past the Vida La Pita and around the east (left) corner of the building. As they were walking, they glanced back and forth at the cars to their left and the stores to their right. Brandon left Joshua and Davidson and trotted past the Vida La Pita toward the parked vehicles and then ran back to Joshua and Davidson. As he ran past the Vida La Pita, he looked toward it, and, when he got to Joshua and Davidson, he looked back.

[14] At this time, Johnson and another male left the Vida La Pita, walked west toward Tim Horton’s, and stopped at the west (right) corner of the building. Rebelo approached Johnson to speak with him. Rebelo told the police that he was friends with Johnson and the other male.

[15] Brandon walked towards the Vida La Pita. Davidson and Joshua followed. Brandon looked back and made a gesture. Davidson hesitated and almost turned around. Brandon walked past Johnson, toward the parked vehicles. Davidson and Joshua walked towards Johnson, Davidson ahead and to the right of Joshua. Davidson pulled out a handgun and held it beside his right leg. When Davidson got to where Johnson was standing, still at the west (right) corner of the building, there was an exchange between Davidson and Johnson that led Johnson to take a swing at Davidson. Johnson missed. Davidson then shot Johnson, who ran into the Tim Horton’s foyer and collapsed.

[16] The single gunshot to Johnson’s chest damaged his aorta and the left ventricle of his heart, and thus caused his death.

[17] Brandon had returned to Joshua’s vehicle before Davidson shot Johnson. After shooting Johnson, Davidson got into the front passenger seat of Joshua’s vehicle and screamed directions at Brandon, who drove away. Joshua walked away from the scene and flagged a cab half a block away. He went in search of his car and of Brandon.

[18] Meanwhile, Dore-Davidson pulled away from the Vida La Pita and drove to Joshua’s place. When she got there, Davidson came out of Joshua’s house and got into the vehicle, and they went home.

[19] I will mention one other event that was of some importance to the respondent’s theory for first degree murder. About nine weeks before the shooting, there was an alleged altercation involving Joshua and Brandon on the one hand, and Johnson and another male on the other hand. Versions of this altercation varied significantly between the witnesses, including police officers, who gave evidence about it. The respondent relied on this earlier altercation as providing motive for why the appellants would want to harm Johnson.

[20] None of the appellants gave evidence at trial. However, Joshua’s two police statements were placed in evidence. The admission of the first statement was opposed but the admission of the second statement was not. The second statement was admitted as evidence upon which all of the accused could rely.

C. Analysis

[21] The appellants raise eight grounds of appeal on which they all rely. They are:

1. The trial judge erred in his ruling, pursuant to R. v. Corbett, [1988] 1 S.C.R. 670, by refusing to remove certain convictions on Joshua’s criminal record that he sought to have removed if he were to give evidence.
2. The trial judge erred in his jury instructions by failing to relate the evidence to the issues that the jury was called upon to determine.
3. The trial judge erred in his jury instructions on the issue of motive.
4. The trial judge erred in admitting Joshua’s first statement to the police.
5. The trial judge erred in admitting a compilation video made from the various surveillance videos relating to this matter.
6. The convictions for first degree murder were unreasonable.
7. The trial judge erred in his Corbett ruling by refusing to remove certain convictions on Davidson’s criminal record that he sought to have removed if he were to give evidence.
8. The trial judge erred in admitting Dore-Davidson’s conviction for accessory after the fact to murder when the Crown called Dore-Davidson as a witness.

[22] I conclude that the trial judge failed to relate the evidence to the issues in his jury instructions. Consequently, I need only address the second ground of appeal along with the sixth ground of appeal of unreasonable verdict for first degree murder.

(1) The jury instructions

[23] I begin with the existing authorities on a trial judge’s obligations when it comes to instructing a jury. First is this court’s decision in R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508.

[24] In Newton, Laskin J.A. outlined the basic components of a proper jury instruction. He said, at para. 11:

In brief, trial judges have a broad discretion in how to charge a jury. Their decision about how much evidence to review, what structure to use and how to organize the charge falls within that discretion. But, ideally, the charge should contain some basic components. In addition to general instructions on the presumption of innocence, the burden of proof, how to assess the credibility and reliability of witnesses' testimony and the like, the charge on the particular case should contain the following five components:

i. the legal framework, typically the elements of the offence or offences with which the accused is charged; ii. the factual issues arising out of the legal framework that the jury must resolve; iii. the material evidence relevant to these issues; iv. the position of the Crown and defence on these issues; and v. the evidence supporting each of their positions on these issues.

[25] While Newton was released after the jury instructions were delivered in this case, the principles outlined in Newton are not new. They can be found in many different cases over the years. Indeed, these cases are mentioned in Newton, and include R. v. Azoulay, [1952] 2 S.C.R. 495, where Taschereau J. made the same point. He reviewed a number of earlier decisions that did as well. Perhaps the most succinct expression of the principle, for the purpose of this case, is in this court’s decision in Rex v. Stephen, Allen and Douglas, [1944] O.R. 339 (C.A.), at p. 352, where Kellock J.A. said: “It is not sufficient that the whole evidence be left to the jury in bulk for valuation” (citations omitted).

[26] There is no issue taken with the trial judge’s recitation of the four essential elements of first degree murder. Rather, it is the trial judge’s repetition of the evidence in whole, and without any correlation of which parts related to which elements, that forms the gravamen of the complaint here.

[27] By the time that the jury received the case, the issues had been significantly narrowed, largely as a result of Davidson’s admission that he had shot Johnson. Among other issues that his admission resolved was the cause of death. Consequently, when the trial judge reached the first element of the offence of first degree murder, that is the cause of death, he could have simply said that, due to Davidson’s admission, the jury would likely have little difficulty in concluding that Davidson caused Johnson’s death.

[28] However, that is not what the trial judge did. Rather, it was, at this stage, that the trial judge proceeded to review the evidence of each and every witness at the trial, over 145 pages of transcript. The trial judge did not make any effort to relate any of this evidence to particular elements of the offence or to particular issues raised. Instead, the trial judge simply repeated the evidence from start to finish.

[29] In taking this approach, the trial judge fell into the very error that Doherty J.A. identified in R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.), at para. 29, where he said:

The fourth requirement, that is the relating of the evidence relevant to the positions of the parties on the contested issues, is most often achieved by a review of the evidence in the context of the various issues and an indication of what parts of the evidence may support the respective positions of the parties. By a review of the evidence, I do not mean a lengthy regurgitation of large parts of the trial judge's notes of the testimony of various witnesses. I mean references to the evidence which are sufficient in the context of the case and the entirety of the charge to alert the jury to the particular parts of the evidence which are significant to particular issues and to the positions taken by the parties on those issues. [Emphasis added.]

[30] The fundamental purpose of jury instructions is to assist the jury. The instructions should serve to help the jury understand the elements of the offence(s); the issues raised for determination; and the evidence that relates to each of those issues. A bulk recitation of all the evidence heard at the trial, without discrimination or analysis, is of no assistance to the jury. After all, the jury heard all the same evidence that the trial judge heard. What they need from both counsel and the trial judge, but especially from the trial judge, is an isolation of the evidence that is relevant to a particular issue. This is one of the most important tasks that a trial judge must undertake in crafting their jury instructions. As Watt J.A. said in R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 44:

Judicial relation of the evidence to the issues improves jurors’ understanding of the particular aspects of the evidence that bear on their decision on each essential issue in the case. [Emphasis in original.]

[31] Defence counsel objected to the trial judge’s approach during the pre-charge conference. They pointed out, for example, that the instructions failed to differentiate between the four accused. They also pointed out that the bulk recitation of the evidence under the first element of the offence, namely causation, was problematic. By way of example, it meant that the evidence of witnesses who had nothing to do with the causation element were included in the recitation under that heading. They urged the trial judge to take a different approach, to at least “group” the evidence in relation to the issues to which the evidence related. The trial judge’s response to these concerns is telling with respect to his failure to understand his fundamental task. The trial judge said, at one point:

I mean, I have to summarize the evidence the evidenced [sic] and I have to put their evidence in, what’s your proposal as to how it should be different?

[32] The trial judge missed the fundamental point, which is, that he did not have to recite every piece of evidence. As is often the case when the evidence is complete, some of the evidence became irrelevant to any issue that the jury had to decide. Nothing was to be gained by reciting evidence that did not relate to a live issue. Doing so risked confusion. That is why it was so important, especially in a lengthy trial such as this one, for the trial judge to have separated the relevant evidence from the irrelevant evidence to assist the jury.

[33] The trial judge’s problematic approach to his instructions becomes more evident when one gets to the other elements of the offence of first degree murder. The second element is whether the death was caused unlawfully. This was another element of the offence that was not really in issue. It was admitted that Davidson had shot Johnson in the chest at close range. There could not be any doubt that Johnson’s death was caused unlawfully by Davidson’s act. However, the trial judge did not make that point. Rather, he simply recited the standard instruction on this element and then referred the jury to the various surveillance videos that the jury had watched “as well as the evidence already summarized at great length under the first question, Element 1.” The trial judge then mentioned the medical evidence, which went to the first element rather than the second, and the fact that Johnson had a flip knife in his front pocket. It is not clear what this piece of evidence had to do with this element.

[34] The problems continued when the next two elements were addressed. The third element, the state of mind for murder, was very much a live issue in the trial. The trial judge’s recitation of the evidence under this element began with “Consider the evidence already summarized under the two previous elements, Elements 1 and 2.” The trial judge then made brief reference to the issue of intoxication and one reference to a piece of post-offence conduct.

[35] On the fourth element, that is planning and deliberation, which was also a very live issue in the trial, the trial judge’s recitation of the evidence began with:

Consider the evidence already reviewed under Elements 1 through 3.

Consider the surveillance videos, phone records and contact by the various accused prior to the shooting.

The trial judge then added a reference to the same piece of post-offence conduct that he had referred to under the third element. None of this had any potential to assist the jury in terms of the issues that they had to decide.

[36] Another significant issue that the jury had to determine was party liability. Indeed, it was the Crown’s position that Joshua, Brandon and Rebelo were guilty of first degree murder, not as principals, but as aiders and/or abettors. The trial judge gave the standard instructions to the jury regarding aiders and abettors. There is no issue with the adequacy of the standard instructions. However, having given those standard instructions, the trial judge did not then mention any evidence that related to whether any of these accused could be found to be either an aider or an abettor. Rather, after setting out the standard instructions, the trial judge proceeded to address the issue of intoxication as it related to the state of mind requirement for the offence of murder.

[37] As a result, the jury was not given any assistance in terms of what they should consider in deciding whether they could be satisfied, beyond a reasonable doubt, that any of the accused were parties to the murder of Johnson. Party liability is, of course, not an issue with which jurors are likely to be familiar.

[38] The respondent says that the structure of the jury instructions is up to the trial judge to determine. The respondent also submits that defence counsel ultimately agreed with the manner in which the trial judge chose to give his instructions. In terms of that latter submission, no fair review of the exchanges between counsel and the trial judge at the pre-charge conference could reasonably lead to the conclusion that defence counsel approved of the trial judge’s approach. Rather, it is evident that, after making their objections, defence counsel simply surrendered to the reality that the trial judge was unwilling to alter his proposed approach. On this point, the respondent’s suggestion that something is to be taken by defence counsel’s failure to renew their objections after the instructions were given ignores one of the fundamental purposes of the pre-charge conference. Having made their objections at that time, other than perhaps stating that they stood by their objections, there was no reason for counsel to have to repeat their objections after the instructions were given. Indeed, had they attempted to do so, the trial judge would have been entitled to shut them down.

[39] The respondent is correct that the structure of the jury instructions, and the degree to which the evidence is reviewed and in what manner, are all matters within the trial judge’s discretion. Yet, the fact remains that the approach ultimately taken must fulfill the purpose of jury instructions. In reviewing the adequacy of the instructions, the task for this court is as described by Doherty J.A. in R. v. Figliola, 2018 ONCA 578, 141 O.R. (3d) 662, at para. 12:

In this court, however, the question is not whether the trial judge chose the most effective method of instruction, but whether his instructions, as given, adequately related the evidence to the issues.

[40] In my view, the trial judge’s instructions to the jury plainly failed to accomplish their central task, that is, to provide the jury with a summary of the evidence that was relevant to the issues that they had to determine. The trial judge’s instructions were simply inadequate. They failed in the same way that the instructions failed in R. v. P.J.B., which Watt J.A. described at para. 58:

What the charge as a whole lacked was a focussed reference to the factual issues to be resolved in connection with each count (as ultimately described), a statement of the positions of the parties in relation to the count, and a review of the significant features of the evidence that bore on the parties’ positions on each count.

[41] There is no choice in this situation but to order a new trial. This court cannot be satisfied that the jury properly understood the issues, and the evidence relating to those issues, such as to be able to conclude that they arrived at proper verdicts.

[42] Given this conclusion, I must address the unreasonable verdict ground, since it determines whether any new trial should be on the offence of first degree murder or only on the offence of second degree murder.

(2) Unreasonable verdict

[43] The appellants assert that the conviction for first degree murder was unreasonable. They assert that planning and deliberation was not the only reasonable inference that could be drawn from the evidence and, thus, this element of first degree murder was not proven beyond a reasonable doubt.

[44] The basic principle applicable to this ground of appeal is set out in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, where Cromwell J. said:

A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered. Applying this standard requires the appellate court to re-examine and to some extent reweigh and consider the effect of the evidence. This limited weighing of the evidence on appeal must be done in light of the standard of proof in a criminal case. Where the Crown's case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence. [Citations omitted.]

[45] The Crown’s theory in this case was that one, or both, of the Barreira brothers had a “beef” with Johnson. They argued that Brandon, at least, was aware that Johnson was in the Hess district the night of the shooting. He contacted Joshua. Rebelo was with Joshua. Prior to the shooting, there are numerous calls between Rebelo and Davidson. Davidson then comes down to the Hess district. Brandon, Joshua, Rebelo, Davidson, and others, get into two vehicles that then circle around the area. The vehicles eventually return to the Vida La Pita where Johnson is present. Brandon, Joshua and Davidson exit the vehicles. Joshua and Davidson go around the back of the building while Brandon waits at the corner of the building. Davidson has a gun.

[46] Seconds after Johnson leaves the Vida La Pita, Brandon is seen on the surveillance videos signalling Joshua and Davidson. At the same time, Rebelo exits the Jeep, approaches Johnson, and engages him in conversation. Davidson and Joshua then approach Johnson while Brandon runs to Joshua’s vehicle. Davidson has the gun out of his pocket, down at his side. When Davidson reaches Johnson, Johnson takes a swing at Davidson. Davidson then fires one shot into Johnson’s chest. Everyone flees the scene as Johnson runs to the Tim Horton’s and collapses.

[47] A reasonable inference could arise from those facts that this was a planned and deliberate murder of Johnson. That said, I understand that the defence offers other explanations for these events, particularly, that Joshua and Davidson were involved in a drug deal at the time that culminated around the back of the Vida La Pita. There is no evidence that anyone knew that Davidson had a gun. There appears to have been a pre-existing problem between Davidson and Johnson that only became known to the others when Davidson and Joshua were approaching Johnson and Davidson said “I’ve got beef with this guy”. Davidson then said to Johnson “remember me”. Johnson responded “you fucking goof” and took a swing at Davidson. The defence argued that Davidson shot Johnson as an impulsive reaction to Johnson taking a swing at him.

[48] That there are competing explanations for the events does not change the fact that the Crown’s theory is a reasonable inference on the evidence. It was up to the jury to decide if they accepted the inference advanced by the Crown as the only reasonable inference to be drawn. It should be noted, on this point, that circumstantial evidence does not have to totally exclude other conceivable inferences. However, those alternative inferences must be reasonable, not just possible: Villaroman, at para. 42. The jury did not have evidence from any of the accused with respect to these events, other than Joshua’s two statements to the police. It was open to the jury to conclude that the inference urged by the defence was nothing more than one of speculation.

[49] In deciding this issue on appeal, it is not the role of this court to substitute its view of the possible inferences to that reached by the jury. Rather, the proper approach for this court is summarized by Cromwell J. in Villaroman at para. 71:

[I]t is fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation. The trier of fact's assessment can be set aside only where it is unreasonable. While the Crown's case was not overwhelming, my view is that it was reasonable for the judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt.

[50] It was open to the jury, in this case, to be satisfied that the only reasonable inference to be drawn from the evidence was that this was a planned and deliberate murder. The objective evidence from the surveillance videos may well have figured prominently in the jury’s view on this point. At the same time, in so concluding, the jury could have viewed the inference suggested by the defence to be speculative, in light of the lack of evidence offered in support of it. I cannot say that the jury would have been acting unreasonably, if they so concluded.

[51] This ground of appeal fails which, in turn, means that any new trial must include the offence of first degree murder.

D. Conclusion

[52] I would allow the conviction appeals and order a new trial on the charge of first degree murder. It will be up to the judge on the second trial to determine afresh the other issues raised in this appeal. They are not bound by the rulings made by the judge on the first trial on any of those issues.

Released: “B.W.M” March 18, 2020 “I.V.B. Nordheimer J.A.” “I agree. C.W. Hourigan J.A.” “I agree. B.W. Miller J.A.”