Court of Appeal for Ontario

Date: 2021-06-22 Docket: C68868

Judges: Miller, Paciocco and Nordheimer JJ.A.

Between: Her Majesty the Queen, Respondent and Joshua Barreira, Appellant

Counsel: Delmar Doucette, for the appellant Elena Middelkamp, for the respondent

Heard: June 18, 2021 by videoconference

On appeal from the sentence imposed on November 16, 2020 by Justice Harrison S. Arrell of the Superior Court of Justice, with reasons reported at 2020 ONSC 6558.

Reasons for Decision

Factual Background & Procedural History

[1] Joshua Barreira and Tyler Johnson had been involved in an altercation in September 2013. On November 30, 2013, based on information received from his brother, Mr. Barreira anticipated another fight with Mr. Johnson, so he summoned the assistance of Chad Davidson. Mr. Barreira then led a search for Mr. Johnson. During the encounter that followed, in Mr. Barreira’s presence, Mr. Davidson shot Mr. Johnson in the chest, killing him.

[2] Mr. Barreira was initially tried and convicted of murder for his role in Mr. Johnson’s death. However, in March 2020 this court set his murder conviction aside and ordered a new trial: 2020 ONCA 218, 62 C.R. (7th) 101.

[3] On August 6, 2020, the Crown accepted a guilty plea from Mr. Barreira to the lesser included offence of manslaughter.

[4] Sentencing submissions were completed on October 1, 2020. The matter was adjourned for the sentencing judge to prepare reasons for sentence.

[5] On November 16, 2020, the sentencing judge determined that 15 years’ imprisonment was a fit sentence for the manslaughter offence. Mr. Barreira was given 10 years’ credit for pre-sentence custody served prior to the sentencing hearing, and a further six months of “Duncan credit” for the harsh conditions during his pre-sentence custody, leaving a net sentence of 4.5 years.

Issues on Appeal

[6] Mr. Barreira seeks leave to appeal his sentence. He raises the following grounds of appeal:

(1) The 15-year sentence imposed by the sentencing judge fell outside the appropriate sentencing range;

(2) Since the agreed statement of facts disclosed that it was unknown whether Mr. Barreira knew that Mr. Davidson had a gun, the sentencing judge erred by failing to sentence Mr. Barreira on the basis that he did not know that Mr. Davidson had a gun;

(3) The sentencing judge erred in not assigning greater Duncan credit given the harshness of the conditions during pre-sentence custody; and

(4) The sentencing judge omitted to assign the equivalent of 69 additional days of pre-sentence custody for the 46 days Mr. Barreira had served between sentencing submissions on October 1, 2020 and the date on which his sentence was imposed, November 16, 2020.

Analysis

[7] We grant Mr. Barreira leave to appeal his sentence, and we accept his fourth ground of appeal, which the Crown concedes. It appears that the sentencing judge’s failure to give pre-sentence credit for the time between sentencing submissions and the imposition of sentence was an oversight.

[8] However, we reject the other alleged errors.

[9] First, we do not agree that the sentencing judge erred by imposing a sentence outside the appropriate range. As noted by the Supreme Court of Canada, “The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention”: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11. The relevant inquiry is whether the sentence was demonstrably unfit.

[10] Without commenting on whether the sentence imposed by the sentencing judge was outside the range, in our view the sentence was not demonstrably unfit, even considering mitigating circumstances. Mr. Barreira led the search for Mr. Johnson, invited Mr. Davidson’s participation in the attack on an unsuspecting and unarmed victim, and had an extensive criminal record, including a prior conviction for counselling murder.

[11] Second, the sentencing judge did not err by treating the uncertainty about whether Mr. Barreira knew that Mr. Davidson had a gun as a neutral factor. For Mr. Barreira to benefit from the alleged mitigating fact that he did not know Mr. Davidson had a gun, this would need to have been established on the balance of probabilities: R. v. Smickle, 2013 ONCA 678, 311 O.A.C. 288, at para. 18; Criminal Code, R.S.C. 1985, c. C-46, s. 724(3).

[12] Third, the impact of enhanced credit for harsh conditions of pre-sentence custody is a matter well within the discretion of the sentencing judge: R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255, at paras. 6-7; R. v. Ledinek, 2018 ONCA 1017, [2018] O.J. No. 6503, at para. 13. While the sentencing judge might well have given more credit for those conditions, this does not provide a basis for interfering.

Conclusion

[13] Leave to appeal from sentence is granted, and Mr. Barreira’s sentence appeal is allowed in part.

[14] The sentence of 4.5 years is set aside, and a sentence of 4 years, 113 days is substituted to reflect the 69 additional days of pre-sentence credit that should have been awarded for the 46 days Mr. Barreira had served between sentencing submissions and the date Mr. Barreira was sentenced.

“B.W. Miller J.A.”

“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”