Court File and Parties

COURT FILE NO.: CR-15-4953 DATE: 2017-02-17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Ms. Malkovich and Ms. Gzik, Crown Counsel for Her Majesty the Queen

- and -

BRANDON BARREIRA, JOSHUA BARREIRA, CHAD DAVIDSON and LOUIS REBELO Ms. Goldlist, Defence Counsel for Brandon Barreira Mr. Zaduk and Ms. Page, Defence Counsel for Joshua Barreira Mr. White and Ms. Audet, Defence Counsel for Chad Davidson Mr. Dorsz, Defence Counsel for Louis Rebelo

HEARD: at Hamilton February 16, 2017

REASONS FOR RULING – DEFENCE APPLICATION TO EXCLUDE EVIDENCE OF THE APPLICANTS’ MARRIAGES AND CONVICTIONS OF THEIR SPOUSES MS. DORE-DAVIDSON AND MS. DAGENAIS

The Honourable Mr. Justice Skarica

Introduction

[1] Tyler Johnson was shot in the heart at close range on November 30th, 2013 in downtown Hamilton. Surveillance video(s) show the shooter (a man wearing a red hood) approaching the victim Mr. Johnson with a gun in his hand and then shooting Mr. Johnson, who ultimately died from his injuries. The shooter can be seen to be accompanied by two other men when approaching the victim. It is alleged by the Crown that Mr. Chad Davidson (Chad) is the shooter and Mr. Joshua Barreira (Joshua) is one of the three accused who assisted Chad in a planned and deliberate murder. Chad and Joshua had common law spouses at the date of the murder. Chad and Joshua and their common law spouses all got married together, approximately two weeks after the murder and days after Mr. Brandon Barreira (Brandon) was arrested for first degree murder. Chad and Joshua’s spouses were both subsequently charged and convicted of accessory after the fact to murder.

Issues

[2] Should the Crown be permitted to introduce the convictions of accessory after the fact to murder of the spouses of Chad and Joshua if and when those spouses testify?

[3] Should the Crown be permitted to introduce evidence of the joint marriages of Chad, Joshua and their two spouses shortly after the murder of Mr. Johnson? Can any adverse inferences be made regarding these marriages?

Issue #1 – Defence Application Excluding Evidence of the Spouse’s Convictions

Background Facts

[4] Chad, Joshua, and the two other accused are charged with the first degree murder of Mr. Johnson on November 30, 2013.

[5] As indicated in previous rulings, my review of the materials filed on this motion and other motions to be decided before me indicates the Crown will adduce a videotape which allegedly shows the victim Mr. Johnson being shot at close range by the accused Chad.

[6] I understand that the Crown’s theory is that Chad shot Mr. Johnson and was aided and abetted by the other three accused in a planned and deliberate murder.

[7] One of the accused, Joshua, has given three statements. The latter two statements indicate that Chad is the shooter and the other three accused charged were innocent bystanders who happened to be merely in the wrong place at the wrong time. These statements are only admissible against Joshua and not against Chad.

[8] At the preliminary hearing, the Crown adduced a variety of surveillance videotapes and Ms. Krystal Dore and Ms. Danielle Waun (Danielle) testified that the person alleged to be the shooter (the man wearing the red hood) is the accused Chad. In a previous ruling, I found this evidence to be admissible at trial. Two of the accused, Brandon and Louis Rebelo (Louis), have formally admitted that they can be seen in the video which the Crown alleges reveals the four participants in the murder.

[9] In a previous ruling regarding the admission of prior discreditable conduct regarding Chad and Joshua, I held that evidence showing the relationships between the accused, including being involved in a criminal lifestyle with each other, was admissible to rebut the defence of innocent association (i.e., being in the wrong place at the wrong time) as the Crown was alleging that the accused were acting in concert in the execution of a planned and deliberate murder of Tyler.

[10] These four accused are not the only ones who have been charged in relation to the murder of Mr. Johnson.

[11] Ashley Dore-Davidson (Ashley), the wife of Chad, and Jennifer Dagenais (Jennifer), the wife of Joshua, were charged with commit accessory after the fact to murder on or between November 30, 2013 and February 14, 2014.

[12] Ashley drove Chad to the scene of the murder and also escorted Louis to the scene of the murder. After Tyler was shot, Ashley drove away from the murder scene with Louis. Brandon is arrested on December 11, 2013. The police release surveillance videos regarding the murder on December 12, 2013. On December 13, 2013, Ashley, Chad, Jennifer and Joshua were married in a double marriage ceremony.

[13] On February 14, 2014, Chad and Joshua were arrested for first degree murder. On the same day, Ashley and Jennifer were arrested for commit accessory after the fact to murder.

[14] On July 28, 2015 Ashley pled guilty to commit accessory after the fact to murder and was sentenced on October 2, 2015 to three years in prison, less time served of 29 months and 18 days, plus three years’ probation.

[15] On March 23, 2016, Jennifer was found guilty after a trial before Justice Parayeski of commit accessory after the fact to murder and intent to mislead a police officer by reporting an offence had been committed that had not been committed (she reported her car was stolen, when it was not, after an accident occurred shortly after the murder).

[16] The Crown indicates that both Ashley and Jennifer have been subpoenaed for this trial and wishes to ask them about their criminal convictions, including their convictions for accessory after the fact to murder.

Law

[17] It is settled law that that the guilty plea of an accomplice or co-accused has no relevance to the ultimate issue of the guilt or innocence of the accused: see R. v. Berry, 2017 ONCA 17, at para. 35; R. v. P.C., 2015 ONCA 30, at para. 44; R. v. Simpson, [1988] 1 S.C.R. 3, at p. 17; R. v. Duong, 39 O.R. (3d) 161 (C.A.).

[18] It is also settled law that pursuant to section 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, a witness may be questioned as to whether the witness has been convicted of any offence, including where the conviction was entered after a trial on an indictment.

[19] The criminal record of a Crown witness or a defence witness may be adduced in examination-in-chief by the party calling that witness. In R. v. Boyko (1975), 28 C.C.C. (2d) 193 (B.C.C.A.), it was held, at pp. 203-204:

The Ontario Court of Appeal considered this question again in R. v. St. Pierre (1974), 17 C.C.C. (2d) 489. In that case counsel for an accused was not permitted when his client entered the witness box to put his record to him. The Court pointed out that the words of Robertson C.J.O. in MacDonald were used in the context of a case in which the examination tended to show that the accused was a man of bad character by reason of his association with criminals. Dubin J.A. for the Court went on to say at p. 499:

Section 12(1) of the Canada Evidence Act, R.S.C. 1970, c. E-10 provides as follows:

“12(1) A witness may be questioned as to whether he has been convicted of any offence, and upon being so questioned, if he either denies the fact or refuses to answer, the opposite party may prove such conviction.”

Crown counsel submits that what that section authorizes is the right of opposing counsel to question the witness as to his or her past criminal record and does not provide the right of the person calling the witness to do so. Although that may have been what was intended, the section is not so limited and by its wording does appear to allow the question to be asked by either counsel, although the opposing party is the one given the right, if the witness denies the fact or refuses to answer it, to prove the conviction.

I am in agreement with that comment. In my view it would do violence to the plain words of s. 12 of the Canada Evidence Act … to uphold the appellant’s objection here. This view receives further support from the judgment of the Ontario Court of Appeal in R. v. MacDonald (1975), 20 C.C.C. (2d) 144 at pp.154-5.

[20] Consistent with the authorities listed in Boyko, the Crown in P.C. was able to adduce guilty pleas and convictions of two of its witnesses, “particularly given defence counsel’s refusal to refrain from cross-examining on their pleas and convictions”: para. 40. The Court of Appeal indicated that those convictions were relevant to their credibility as witnesses but were not admissible as evidence against the accused in determining his guilt: paras. 40-46.

[21] Also consistent with the Boyko principle, in Berry, the Crown was able to adduce the preliminary inquiry evidence of an accomplice who could not be located. In the transcript, the accomplice had pled guilty to manslaughter and the accused was charged with murder arising out of the same incident. The trial judge refused to edit out the evidence of the guilty plea and conviction out of what was read to the jury.

[22] The Court of Appeal in Berry held that the trial judge was correct in not editing out the guilty plea and conviction, at paras. 33-42:

The trial judge declined to edit the evidence of the guilty plea and conviction out of what was read to the jury.

In the trial judge’s view, this evidence was important for credibility purposes. As he said, the jury could not assess the credibility of Jovanovski’s evidence in a vacuum: “the status of an accomplice's charge is a vital factor in assessing the credibility of the accomplice witnesses”. The trial judge was satisfied, therefore, that the evidence of Jovanovski’s guilty plea and conviction and the sentence he received was highly relevant and material to Jovanovski’s credibility which, in turn, was an important factor for the jury to consider in its determination of the main issues of self-defence, provocation and (if intent to commit murder were established) planning and deliberation.

It was open to the trial judge to adopt this approach, in my opinion, because the guilty plea and conviction may well have provided the strongest basis upon which Jovanovski’s credibility — and therefore his evidence, which was central to the Crown’s case — could be attacked by the defence. In this respect, the decision was favourable to, rather than prejudicial to the appellant.

At the same time, however, the trial judge was very much alive to the need to balance the probative value of the contested evidence against its prejudicial effect. He recognized the settled law that the guilty plea of an accomplice or co-accused has no relevance to the ultimate issue of guilt or innocence of the accused: see R. v. Berry, [1957] O.R. 249 (Ont. C.A.); R. v. Buxbaum (1989), 33 O.A.C. 1 (Ont. C.A.), leave to appeal to S.C.C. refused, [1989] S.C.C.A. No. 239 (S.C.C.); R. c. Lessard (1979), 50 C.C.C. (2d) 175 (C.A. Que.); R. v. Caesar, 2016 ONCA 599, 350 O.A.C. 352 (Ont. C.A.). In the course of his thorough probative value/prejudicial effect analysis, the trial judge gave careful consideration to defence counsel’s argument about the prejudicial impact of the accomplice’s guilty plea.

The trial judge fully understood the danger that jurors might use the guilty plea to draw impermissible inferences. He concluded, nonetheless, that the risk could be effectively managed by clear instructions to the jury about the permissible and impermissible uses to which the evidence relating to the guilty plea could be put. On that basis he was satisfied that the probative value of the evidence outweighed its prejudicial effect and ruled that it was admissible.

In keeping with that reasoning, the trial judge did give very clear instructions, both before Jovanovski’s evidence was read to the jury and in his charge to the jury. In his mid-trial instruction, he said:

Mr. Jovanovski's guilty plea, and this is very important, has absolutely no bearing on whether Mr. Berry is guilty of first-degree murder or any included offence. You must not think that because Mr. Jovanovski has pleaded guilty, Mr. Berry must be guilty of something too. Mr. Jovanovski may have any number of reasons for pleading guilty and any number of reasons for testifying at Mr. Berry's trial through being called by the Crown. The fact Mr. Jovanovski pleaded guilty to manslaughter and received a particular sentence is only relevant in assessing Mr. Jovanovski's credibility. [Emphasis added by Court of Appeal.]

The trial judge repeated this instruction in essentially the same terms in his charge to the jury. Indeed, he reinforced it by adding the following:

Mr. Jovanovski may have had [a] great number of reasons for pleading guilty and any number of reasons for testifying for the Crown at Mr. Berry’s trial. He may have pleaded guilty so he could get out of jail. He may have pleaded guilty because he took responsibility for his actions. It is for you to decide how much or little weight you put on Mr. Jovanovski’s guilty plea in assessing his credibility. Remember, his guilty plea has zero relevance in your determination of whether Mr. Berry is guilty of any offence. [Emphasis added by Court of Appeal.]

These sharp and clear-cut directives reminded the jury that Jovanovski may well have had his own motives for the plea and for giving the evidence he gave, while at the same time leaving no doubt that the jury was not to use the evidence of the guilty plea to determine any issues of guilt or innocence, but only for purposes of assessing the credibility of Jovanovski’s evidence.

In addition, the trial judge provided a strong Vetrovec-like charge that was to the appellant’s advantage in terms of the jury’s assessment of Jovanovski’s credibility and evidence. In this portion of the charge, he directed the jurors to consider whether Jovanovski had a motive to be untruthful or a reason to downplay his involvement and exaggerate the appellant’s role. He told them there was good reason to look at Jovanovski’s evidence “with the greatest care and caution” and that it would be dangerous for them to rely on that evidence without confirmation from some other source.

In view of the foregoing, the jury could not have been confused or left in any doubt about the two important features of Jovanovski’s guilty plea and sentence from the defence point of view: first, that the evidence could not be used for the purpose of determining the appellant’s guilt or innocence, but only for the purpose of assessing his credibility; and secondly, that Jovanovski may have had a motive to fabricate his evidence because he had received favourable treatment in his own case, in exchange for his testimony against the appellant.

The exercise of weighing the probative value of proffered evidence against its potential prejudicial effect in the course of the dynamics of a trial is a discretionary task for which trial judges are particularly well-suited. Their decisions in that regard are entitled to deference. See, for example, R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544 (S.C.C.), at para. 110. Absent an error of law or principle, a material misapprehension of the evidence, or a palpable and overriding error of fact in the exercise of that discretion, there is no basis for an appellate court to interfere.

[23] Weighing the probative value against the prejudicial effect, it is my opinion that the jury must be able to assess the credibility of Ashley and Jennifer; their criminal records assist in this assessment: see section 12 of the Canada Evidence Act; Berry, at para. 41; P.C., at paras 40-46. Their convictions do not list any accused as being responsible for the murder of Mr. Johnson and this lowers any prejudicial effect. My assessment of the evidence thus far is that it is really not a question of whether Mr. Johnson was killed in a culpable homicide. It is hard to imagine that no culpable homicide occurred here given the video evidence of Chad, the alleged shooter, accompanied by two of the other accused, approaching the unarmed victim with the shooter holding the gun at his side and almost immediately shooting Mr. Johnson in the chest after a brief altercation initiated by the group of three. Further, Joshua, in his last two statements, indicates a murder took place but it was Chad who shot Mr. Johnson (due to Chad having a beef with him) and the others were in the wrong place at the wrong time. Brandon and Louis admit they were on the surveillance videos. Presumably, Chad’s defence is that he is not the shooter, since identity is an issue regarding him.

[24] The real issue in this case is who is responsible and what degree of intent or culpability attaches to each accused. There is little question that unarmed Mr. Johnson was shot in the heart after being accosted by a man armed with a loaded gun, and that the armed man was accompanied by others, and that Mr. Johnson was shot after a short fracas initiated by the armed man and his group. This scenario lowers any potential prejudicial effect of the jury hearing about the convictions of accessory after the fact to murder. Even one of the applicants, Joshua Barreira, in his third statement, states, “Yes, I am guilty of accessory after the fact to murder.” In any event, the jury can be cautioned in the same manner as was done in Berry and as is often done frequently without any injustice being done: see Watt’s standard jury charge at Final 37.

Conclusion Regarding Issue #1 – Defence Application Excluding Evidence of the Spouse’s Convictions

[25] Accordingly, the probative value of the convictions and sentence of Ashley and Jennifer exceeds any prejudicial effect. The convictions and sentences can be adduced by the Crown when calling Ashley and Jennifer as witnesses in this trial. However, the facts behind the findings of guilt are not admissible and the jury will receive a mid-trial instruction that the convictions and sentence of these witnesses are relevant only to their credibility, and have nothing to do with the guilt or innocence of any of the accused before the court.

Issue #2 – Defence Application Excluding Evidence of Marriages of Chad Davidson and Ashley Dore-Davidson and Joshua Barreira and Jennifer Dagenais and in the Alternative, Excluding Adverse Inferences from the Marriages

Facts

[26] As indicated, Mr. Johnson was murdered on November 30, 2013. No arrests were made at the scene.

[27] The police gathered surveillance videos from stores surrounding the murder scene. From those videos, it is obvious that Brandon is one of the men in the group involved in the killing of Tyler Johnson.

[28] Accordingly, Brandon was the first accused arrested (on December 11, 2013) for first degree murder.

[29] The police had difficulty identifying the other accused. Accordingly, on December 12, 2013, police released surveillance video to the public and asked for the public’s help in identifying the other suspects on the video.

[30] On Friday, December 13, 2013, Dave Michal, a city of Hamilton employee issued marriage licences to Ashley Dore-Davidson and Jennifer Dagenais. Ashley Dore-Davidson and Chad Davidson, in addition to Jennifer Dagenais and Joshua Barreira, were married in a joint ceremony conducted by Father Brown. They served as witnesses for each other.

[31] It appears that the night before the marriages, the two couples visited the home of Danielle in Dundas (at 41 McKay Road) and spent the night there. Danielle is a friend of Ashley’s and testified that the four of them showed up unexpectedly and asked if they could stay overnight. In the morning, Danielle overheard a conversation by the couples. Joshua and Danielle were talking about going to get married and Joshua thought it was a stupid idea and did not want to do it. Jennifer said the same thing but Ashley said “that’s what they had to do.” Danielle overheard someone say that husbands and wives can’t testify against each other but could not recall who said it. Joshua said it was too obvious that all of them were going to get married at the same time. Jennifer was saying that it wasn’t her dream marriage either. The couples left in the morning as Ashley had promised the previous evening.

[32] In the second and third statements made by Joshua, he indicates that Chad shot Mr. Johnson and that Joshua and the others were just there at the wrong place and the wrong time. Joshua was selling drugs to Chad when Chad saw Tyler and said he had a beef with Tyler. He then approached Tyler and shot him. Chad got into Joshua’s car with his brother Brandon and when Joshua was telling Brandon to get out of the car, Chad shot at Joshua twice almost blowing his head off. At least one of the shots hit the Vida La Pita wall. In his third statement, he says both shots hit the wall behind him. The car then took off leaving Joshua behind to take a taxi. In his third statement, Joshua changed the taxi evidence and says he drove off in the car with all of the accused but did not tell any of this to the police.

[33] The police have no evidence to refute or confirm the shots fired at the Vida La Pita wall due to the serrations in that wall. Counsel for Joshua indicates that there will be other witnesses called who heard a single shot and then a gap and then two other shots.

[34] In his second statement to the police, dated May 20, 2014, at pages 36-38, Joshua indicated that he was fleeing the city with Jennifer (at around 6:00 or 7:00 a.m. when they got into an accident) shortly after the murder to his mother’s because that was the only place that Chad did not know. Chad knew where Joshua’s uncles and dad lived. I agree with the Crown that this leads to a fair inference that Joshua was fearful of Chad.

[35] However, later in the second statement, at pages 96-101, Joshua is asked why he got married. Joshua indicates that after his brother got arrested, Chad went to Joshua’s dad’s place and asked if his brother Brandon had said anything. Chad said that they should get married and Joshua said okay. Chad never really explained it. Chad said, “let’s get married,” and “it’ll be better for everybody, trust me.” Joshua then said, “Let’s just do it.”

Law

[36] Section 4(3) of the Canada Evidence Act indicates “[n]o husband is compellable to disclose any communication made to him by his wife during their marriage and no wife is compellable to disclose any communication made to her by her husband during their marriage.”

[37] Section 4(6) of the Canada Evidence Act indicates “[t]he failure of the person charged or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.”

[38] Whether or not the jury should be instructed that they can draw an adverse inference from the assertion of the section 4(3) privilege is an issue that the Ontario Court of Appeal declined to decide in R. v. Zylstra (1995), 99 C.C.C. (3d) 477 (Ont. C.A.).

[39] The Ontario Court of Appeal has, however, decided that a spouse is entitled to rely on the spousal incompetency rule even if one of the purposes of the marriage was to preclude testimony before a court. In R. v. Nguyen, 2015 ONCA 278, Justice Gillese held, at para. 119:

[M]arriage may be an option for many common-law couples who wish to opt-in to the spousal incompetency rule prior to a trial. Indeed, the Supreme Court confirmed in Hawkins, at paras. 45-46, that a spouse is entitled to rely on the spousal incompetency rule even if the marriage takes place after the swearing of an indictment and is largely motivated by a desire to take advantage of the rule.

[40] The defence argues that, in other areas of the law where a privilege exists, the courts have indicated that no adverse inference should be drawn when a person exercises that privilege. For example, no adverse inference is available when (1) an accused exercises his right to silence (see R. v. Turcotte, 2005 SCC 50, at paras. 36-59); (2) a party fails to waive solicitor-client privilege (see R. v. Alcantara, 2013 ABCA 163, at para. 154); or (3) an accused chooses his right not to testify (see R. v. Prokofiew, 2012 SCC 49, at para. 10). Regarding the right not to testify, the trial judge may or may not, depending on the circumstances, provide an instruction to the jury affirming an accused’s right to silence – see Prokofiew at paras. 3-4.

Application of Law to Facts

[41] As indicated previously in my discreditable conduct ruling, the Crown’s theory is that the four accused acted in concert in the planned and deliberate murder of Mr. Johnson. For at least Joshua, his explanation for being at the murder scene is that he was doing a drug deal with Chad and Joshua and the other accused were in the wrong place at the wrong time when Chad saw Mr. Johnson and then, on his own, Chad decided to resolve a beef with Mr. Johnson by shooting and killing him.

[42] Accordingly, a live issue at this trial is the relationships between the various accused. I held, in my prior discreditable conduct ruling, at paras. 30 and 57, that the Crown will be permitted to adduce evidence which shows the relationships between the accused including their joint involvement in a criminal lifestyle (including Chad selling stolen property to the Barreiras and Joshua selling drugs to Chad), and Chad telling Joshua’s mother many times that he would do anything for Joshua.

[43] Another live issue is whether Chad in fact shot twice at Joshua after the murder. There is no forensic evidence to confirm or deny this. There are other witnesses who heard a shot followed by a gap of time and another two shots. Joshua, in his second statement, indicated that three hours after the murder he was fleeing Hamilton due to, first, his fear of Chad and, second, the fact that Chad knew where all of Joshua’s relatives in Hamilton lived. Yet, later in the statement, Joshua indicates that after his brother Brandon was arrested on December 11, 2013 (for a murder that Chad is responsible for and his brother is innocent of, according to Joshua), Chad showed up at Joshua’s father’s house and suggested that Chad and Joshua get married to their girlfriends together and then Joshua agrees to it.

[44] The evidence of Danielle is that, presumably a day or two after Brandon’s arrest, the two couples – Chad and Ashley and Joshua and Jennifer – showed up at her place unexpectedly and stayed the night. The two couples talked about getting married the next morning. It is a fair inference that, later that day, the two spouses of Chad and Joshua got marriage licences and all got married that afternoon with each other as witnesses.

[45] In my opinion, this ongoing close relationship of Chad and Joshua after Brandon’s arrest (an innocent man arrested for Chad’s murder according to Joshua) and the evidence of the joint marriage and the events leading up to that marriage is highly relevant to (1) the nature of the relationship between Chad and Joshua, (2) the issue of innocent association at the murder scene, (3) the issue of fear of Chad by Joshua after the murder, and (4) the reasons for Joshua and Jennifer’s flight from Hamilton some three hours after the murder. Flight from a murder scene can be used by the trier of fact as post-offence conduct related to the offence or something else depending on the circumstances: see R. v. Carrington, 2017 ONCA 2, at paras 38-42.

[46] Accordingly, the probative value of the events leading up to the joint marriages of Chad and Joshua, as well as the details of the marriages themselves, have probative value that exceeds any prejudicial effect. All of this evidence is admissible at this trial.

[47] A more difficult issue is whether an adverse inference in the nature of consciousness of guilt can be drawn from the fact of these marriages.

[48] Nguyen makes it clear that a spouse is entitled to rely on spousal incompetency even if one of the purposes of marriage is to preclude testimony before a court. Accordingly, even if the purpose of the marriage is to take advantage of the spousal incompetency rule, the courts have found that there is nothing legally or morally wrong with that purpose.

[49] What is the evidence here that these people got married to take advantage of the spousal incompetency rule? In his second statement to the police, Joshua says he got married at Chad’s suggestion. Further, in the preliminary inquiry, Danielle testified that, in the morning, the couples were arguing about getting married with Joshua and Jennifer not wanting to do it. At page 49 of her preliminary inquiry transcript, Danielle testified that she overheard someone say “they were just saying that husbands and wives can’t testify against each other.” When Danielle was asked who said it, she could not recall. Accordingly, there is no evidence as to who, among Chad, Joshua, or one of the wives-to-be, said it.

[50] Given the uncertainty of the law regarding whether an adverse inference can be made for exercising spousal privilege, the fact that there is nothing legally or morally wrong (per Nguyen) for people to get married for the purpose of invoking the spousal privilege, and the inability of Danielle to articulate who made the statement “husbands and wives can’t testify against each other”, I am unable to say that the comment overheard by Danielle has greater probative value than prejudicial effect, or that the Crown is entitled to argue that an adverse inference in the nature of consciousness of guilt can be taken from these marriages.

Conclusion Regarding Issue #2 - Defence Application Excluding Evidence of Marriages of Chad Davidson and Ashley Dore-Davidson and Joshua Barreira and Jennifer Dagenais and in the Alternative, Excluding Adverse Inferences from the Marriages

[51] The Crown will be permitted to tender into evidence the events leading up to and the details of the marriages of Chad to Ashley and Joshua to Jennifer on December 13, 2013.

[52] The Crown will not be permitted to lead evidence of the conversation that Danielle overheard (along the lines of “husbands and wives can’t testify against each other”), but Danielle will be able to testify as to the remaining matters that she testified to at the preliminary inquiry. The Crown will not be permitted to argue that an adverse inference can be drawn from the fact of these marriages.

Order

[53] The Crown will be permitted to adduce into evidence the items referred to at paragraphs 25 and 51 of this ruling.

The Crown will not be permitted to adduce into evidence or argue the items referred to at paragraph 52 of this ruling.

Skarica J.

Released: February 17, 2017

COURT FILE NO.: CR-15-4953 DATE: 2017-02-16 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - BRANDON BARREIRA, JOSHUA BARREIRA, CHAD DAVIDSON and LOUIS REBELO REASONS FOR JUDGMENT AS Released: February 17, 2017