Reasons for Ruling – Defence Application

Court File No.: CR-15-4953 Date: 2017-04-27

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 April 26, 2017

REASONS FOR RULING – DEFENCE APPLICATION BROUGHT BY BRANDON BARREIRA, CHAD DAVIDSON AND LOUIS REBELO TO BE ABLE TO RELY ON CO-ACCUSED JOSHUA BARREIRA’S STATEMENT TO THE POLICE FOR THE TRUTH OF ITS CONTENTS

The Honourable Mr. Justice Skarica

Introduction

[1] Tyler Johnson (Johnson) was shot in the heart at close range on November 30th, 2013 in downtown Hamilton. Surveillance videos show the shooter (a man wearing a red hoodie, admitted to be the accused Chad Davidson (Chad)) approaching Johnson with a gun in his hand, and then shooting Johnson, who ultimately died from his injuries. The shooter can be seen to be accompanied by two other men, as he approaches the victim. It is alleged by the Crown that Brandon Barreira (Brandon), and Joshua Barreira (Joshua), were the two men accompanying Chad. Louis Rebelo (Louis) was speaking to Johnson as the three men approached. It is the Crown’s theory that Chad shot Johnson and was assisted in that shooting by the other three accused, and that all four accused are guilty of a planned and deliberate murder of Johnson.

[2] Upon the arrest of Joshua on February 14, 2014, Joshua provided a videotaped statement to the police, which has been entered as evidence. Joshua’s mother subsequently called the police and asked the police to interview Joshua once more. The police attended the jail and Joshua provided to them an audio statement on May 20, 2014. In the audio statement, Joshua indicated that Chad, in a drug induced frenzy, shot and killed Johnson without the prior knowledge or intent of the other three accused.

[3] Louis was arrested on February 20, 2014 and provided his own statement to the police, which has been introduced as evidence.

[4] All four of the accused have elected not to call defence evidence. Brandon, Chad and Louis seek to have Joshua’s audio statement be considered by the jury as evidence for its truth, admissible on their behalf, in furtherance of the defences they wish to put forward.

Issues

[5] Is the statement of the accused, Joshua, admissible on behalf of Brandon, Chad and Louis pursuant to the Khelawon principled exception to the hearsay rule? Should the strict rules of evidence be relaxed in favour of the accused in applying this principle?

Issue – Is the Statement of Joshua Admissible on Behalf of the Other Accused Pursuant to the Khelawon Principled Exception to the Hearsay Rule?

Background Facts

[6] The four accused are charged with the first degree murder of Johnson on November 30, 2013.

[7] At this trial, the Crown has adduced videotapes which appear to show the victim, Johnson, being shot at close range by the accused, Chad.

[8] The Crown’s theory is that Chad shot Johnson and was aided by the other three accused in a planned and deliberate murder.

[9] One of the accused, Joshua, has given two statements. The Crown introduced both statements as part of its case. In the second statement (an audio statement given after all four accused and two spouses had been arrested and some were applying for bail), Joshua indicates that Chad, in a drug induced frenzy, shot Johnson and the other three accused were innocent bystanders who merely happened to be in the wrong place at the wrong time. I have instructed the jury, pursuant to the usual procedure, that these two statements are only admissible against Joshua and not against the other accused.

[10] The Crown adduced a variety of surveillance videotapes at the trial. Chad has since admitted that he is the man wearing the red hoodie on the video tapes. This man can be seen to have a gun in his hand seconds before Johnson is shot. On the video, Johnson can be seen to swing at Chad, and he appears to miss. Chad then shoots Johnson. Joshua and Brandon have admitted that they are the two accused who accompany Chad as he approaches Johnson. Louis has admitted to be the individual who is speaking to Johnson as the other three men approach. Chad, after a brief altercation, then shoots and kills Johnson.

[11] At the close of the Crown’s case, Brandon, Joshua and Chad brought Corbett applications to have their criminal records edited. I ruled that the youth records could be edited out, but I ruled that basically the entire adult records of the three accused, who brought Corbett applications, were admissible in cross-examination pursuant to section 12 of the Canada Evidence Act.

[12] Brandon has what I would consider a minor adult criminal record, but Joshua and Chad have lengthy and very serious adult criminal records. Louis has no criminal record.

[13] After my Corbett rulings, all of the four accused have decided not to testify or call any other evidence.

[14] Joshua will obviously rely on his audio statement of May 20, 2014. This statement, if believed, or even if not, has the potential to exonerate Joshua. This could occur, pursuant to W.D, if the jury determines that this statement raises at least a reasonable doubt in the context of the evidence as a whole regarding Joshua’s guilt to first degree murder, and all included offences. See R. v. W. (D.), [1991] 1 S.C.R. 742 at paras. 27, 28, per Cory J.

[15] Joshua, in his audio statement, indicates that Brandon and Louis were innocent bystanders and were in the wrong place at the wrong time. Accordingly, Joshua’s audio statement could also raise a reasonable doubt regarding Brandon’s and Louis’ guilt of first degree murder, and all included offences, if that audio statement were admissible in evidence against Brandon and Louis. However, the normal rule in joint trials is that evidence of one accused is only admissible against that accused and cannot be used for the truth of its contents by the other co-accused. See for example, R v Waite, 2014 SCC 17, at para. 3.

[16] In the audio statement, Joshua indicates that Chad was the shooter, but that Chad was under the influence of drugs just before and during the shooting. The gist of Joshua’s statement is that: (1) Joshua sold crack to Chad, (2) Chad pulled out a crack pipe and wanted to smoke crack in Joshua’s car, (3) Joshua was under a driver’s suspension at the time and had a bad drug record, (4) Joshua pulled over and stopped, (5) Chad and Joshua got out of the car, (6) Chad saw Johnson and said he had a beef with Johnson, (7) Chad was strung out on drugs, (8) Chad shot and killed Johnson and (9) Chad shot at Joshua twice before fleeing the scene in Joshua’s Jaguar. According to Joshua, Joshua and the others had no idea this was going to happen.

[17] Accordingly, Joshua’s audio statement, if admitted for the truth of its contents, has the potential to raise a reasonable doubt regarding Chad’s state of mind at the time of the shooting, and thereby reduce Chad’s liability from murder to manslaughter.

[18] The defence argues that they expected Joshua to testify in accordance with his audio statement, and that his testimony would have been admissible for and against the other co-accused. That option is no longer available for Brandon, Chad, and Louis, as Joshua will not be testifying at this trial. Accordingly, the defence seek to rely on Joshua’s audio statement under the principled rule admitting hearsay for the truth of its contents.

Law

[19] Under the principled approach to hearsay, hearsay evidence will be substantively admissible when it is both necessary and sufficiently reliable. Both necessity and reliability must be interpreted flexibly, taking into account the circumstances of the case and ensuring that the new approach does not itself become a rigid pigeon-holing analysis. See R v. Khelawon, 2006 SCC 57 at para. 84, per Charron J. Further, when assessing reliability, confirmatory or corroborating evidence can be considered. See Khelawon at paras. 93-100.

[20] In R v. Waite, 2014 SCC 17, McLachlin J. held that despite the general rule that out-of-court statements by a party are only admissible against the party making the statement, there is nothing that would prevent an accused from attempting to have a co-accused’s statements considered for their truth under the principled approach to the hearsay rule. McLachlin J. held at paras. 3 and 4:

3 We would not give effect to this argument. The general rule is that out-of-court statements by a party may be adduced as evidence of their truth by an opposite party. But, as the trial judge instructed the jury, statements admitted on that basis may in general be used only in deciding the case of the accused who made the statements. The trial judge gave this standard instruction with the express agreement of trial counsel. She did not err in doing so. The appellant's counsel at trial did not seek to adduce the co-accused's out-of-court statements for their truth as part of the appellant's case under the [page343] principled approach to the hearsay rule or on any other basis.

4 There appears to be nothing that would have prevented the appellant from attempting to have these statements considered for their truth under the principled approach to the hearsay rule. However, no such attempt was made here. There was, therefore, no basis raised for the judge to give the instruction now sought. We note that R. v. Edwards, 2004 BCCA 558, 205 B.C.A.C. 42, in which one accused adduced in evidence as part of his case an inculpatory out-of-court statement by a co-accused, gives rise to different issues which we do not have to address here.

[21] Regarding necessity, Dilks J. in R v Brown, [2001] O.J. No. 3234 (S.C.J.), held that a co-accused cannot be compelled to testify by another accused, and that the co-accused’s evidence is unavailable and this satisfies the necessity requirement. Justice Dilks also held in Brown that that the reliability requirement in the circumstances of that case was satisfied as well. Accordingly, in Brown, a co-accused’s confession was admissible for the truth of its contents for the applicants, and exonerating parts of the co-accused’s confession could be used to raise a reasonable doubt on behalf of the applicants. See Brown at paras. 52-56.

[22] In R v Finta, [1994] 1 S.C.R 701, depositions of a deceased witness who had not been cross-examined were held to be admissible on the principled hearsay exception. Justice Cory held at paras. 283-290:

(5) Admissibility of the Evidence of Dallos

283 The evidence of Dallos came in two forms. The first was a deposition given by him to the Hungarian state police in Szeged on January 16, 1947. On that occasion, Dallos was told of his obligation to tell the truth and advised that he might have to confirm his testimony by oath. Dallos testified that the Commandant of the Gendarmerie guarding the Jews confined in the brickyard was a man by the name of Bodolay. Captain Finta, he said, was in charge of those detained and the taking of their possessions.

284 The second was a statement made before the People's Tribunal of Szeged in the form of a deposition, in which he stated again that Bodolay was in charge of the brick factory along with another man by the name of Narai. Neither form of evidence was subject to cross-examination. Both contained hearsay. The majority of the Court of Appeal observed that there is an element of fairness arising from the right of confrontation implicit in the adversarial system. However, the majority held that the trial judge did not err in admitting the evidence in light of this Court's judgment in R. v. Khan, [1990] 2 S.C.R. 531. The majority determined that the requirement of necessity was clearly met in this case as the declarant was dead. It also determined that Dallos' statement had the requisite indicia of reliability. It noted, at p. 136:

The statements were made on a solemn occasion, somewhat akin to a court proceeding, by a person adverse to the party seeking to tender the statement. They appear to have been made by a person having peculiar means of knowledge of the events described in the statement, and the statements themselves distinguish between events within Dallos' personal knowledge and events about which he had merely received information from others.

285 The majority also determined that the fact that the statements were officially recorded and preserved favoured their admissibility. It held that cross-examination could shed little light on the truth of what Dallos said since only he could testify to that. On this issue they observed, at p. 136:

The cross-examination of which the Crown says it was deprived could only clarify what was said by Dallos. As in the case of a business record, there is little reason here to doubt the accuracy, as opposed to the truth, of what Dallos is reported to have said.

286 Finally, the majority held that the exception to the hearsay rule in the form of statements made against penal interest by a person who is unavailable could only be invoked by the defence. It concluded that it would be unfair to allow the Crown to prosecute an accused today with the assistance of evidence which had been in existence for some 46 years and which the accused was not given the opportunity to challenge.

287 In R. v. Williams (1985), 18 C.C.C. (3d) 356, Martin J.A. stated that there is a need for a flexible application of some rules of evidence in order to prevent a miscarriage of justice. He said at p. 378: "It seems to me that a court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which an exclusionary rule aims to safeguard does not exist." His words are particularly apposite to this case.

288 In R. v. Rowbotham (1988), 41 C.C.C. (3d) 1, at p. 57, the Ontario Court of Appeal held that the rules of evidence were properly relaxed in order to permit a question to be asked of a witness the answer to which constituted inadmissible hearsay. This was permitted because to do otherwise would have denied the accused the right to make full answer and defence, a right encompassed in the term "fundamental justice" now enshrined in s. 7 of the Charter.

289 In R. v. Khan, supra, this Court observed that in recent years courts have adopted a more flexible approach to the hearsay rule, rooted in the principles and the policies underlying the hearsay rule, rather than in the narrow strictures of the traditional exceptions. The requirements for the admission of hearsay evidence are that it be necessary and reliable. Necessity may be present where no other evidence is available. The testimony may be found to be reliable when the person making the statement is disinterested, and the statement is made before any litigation is undertaken. It is also helpful if the declarant is possessed of a peculiar or special means of knowledge of the event. See also R. v. Smith, [1992] 2 S.C.R. 915; R. v. B. (K.G.), [1993] 1 S.C.R. 740. The evidence of Dallos meets all these criteria and was therefore admissible.

290 I agree with the majority of the Court of Appeal that there was a firm foundation supporting the trial judge's ruling that the evidence of Dallos was admissible. The importance of putting all relevant and reliable evidence that is available before the trier of fact in order to provide the clearest possible picture of what happened at the time of the offences is indisputable. It would have been unfair to have deprived the respondent of the benefit of having all relevant, probative and reliable evidence before the jury. This is particularly true of evidence that could be considered to be helpful to his position.

[23] Finta was decided well before the Khelawon decision. In R v Post, 2007 BCCA 123, the B.C.C.A. considered both Finta and Khelawon, and decided that the court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice, and where the danger against which an exclusionary rule aims to safeguard does not exist. Justice Finch held at paras. 85-90:

XI. THE RELAXED STANDARD OF ADMISSIBILITY

85 The appellant submits that Malloway's statements constitute exculpatory evidence, and therefore that a relaxed standard of admissibility should apply to them. Counsel relies on several cases for that proposition, including R. v. Finta (1994), 88 C.C.C. (3d) 417 (S.C.C.). In that case, Cory J. cited with approval the remarks of Martin J.A. in R. v. Williams (1985), 18 C.C.C. (3d) 356 (Ont. C.A.), where he noted that "a court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which an exclusionary rule aims to safeguard does not exist."

86 The trial judge in this case agreed with that proposition and went even further, noting that there might be cases where evidence that is insufficiently reliable to form any part of the basis upon which a trier of fact convicts an accused may nevertheless have sufficient reliability to raise a reasonable doubt. However, he concluded that Malloway's statements could not meet even a relaxed standard of admissibility:

[69] There must, however, be some touchstone of reliability whether evidence of this sort is tendered by the Crown or by the accused. In the case at bar, I cannot conceive of any articulable standard under which I could find Ms. Malloway's statement to police to meet a threshold of reliability. To allow it to be entered would be tantamount to abdicating any gatekeeping function in respect of this type of evidence.

[70] This is not a case where I find that the evidence tendered engages concerns of fairness or due process. I therefore rule that the statements to police by Ms. Malloway are not admissible for their truth, though they may, of course, be used for the purposes of cross-examination.

87 I respectfully agree with those observations. In R. v. Kimberley (2001), 157 C.C.C. (3d) 129 (Ont. C.A.), Doherty J.A., in referring to cases supporting a relaxed standard of admissibility when it is necessary to prevent a miscarriage of justice, cautioned that "[t]hose cases do not, however, invite an abandonment of the threshold reliability inquiry where hearsay evidence is tendered by the defence."

88 I see no error in the trial judge's application of the law, and conclude that he properly excluded Malloway's statements. However, there is one further point raised by the Crown which deserves attention.

89 As the Crown points out, there is no mention of a relaxed standard in Khelawon. The Court says that the party seeking to adduce the evidence must establish necessity and reliability on a balance of probabilities. The Crown says that this indicates that a uniform standard is to be applied, regardless of which party seeks to adduce the hearsay evidence.

90 I respectfully disagree, and take the Court's remarks to be simply a re-statement of the principled approach to hearsay. I do not interpret anything in Khelawon as intended to preclude the application of a relaxed standard in a particular case where the trial fairness requires it, and the avoidance of a miscarriage of justice demands it. There is support for this position in the following passages from that case:

[47] ... The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities. In a criminal context, the inquiry may take on a constitutional dimension, because difficulties in testing the evidence, or conversely the inability to present reliable evidence, may impact on an accused's ability to make full answer and defence, a right protected by s. 7 of the Canadian Charter of Rights and Freedoms: Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505. The right to make full answer and defence in turn is linked to another principle of fundamental justice, the right to a fair trial: R. v. Rose, [1998] 3 S.C.R. 262. ...

[48] ... Trial fairness, as a principle of fundamental justice, is the end that must be achieved. Trial fairness embraces more than the rights of the accused. While it undoubtedly includes the right to make full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns: see R. v. Mills, [1999] 3 S.C.R. 668, at paras. 69-76. In the context of an admissibility inquiry, society's interest in having the trial process arrive at the truth is one such concern.

Application of Law to Facts

[24] Regarding the necessity requirement under the principled approach, Joshua has elected not to testify, and the other co-accused cannot compel him to do so. Accordingly, the accused have established the necessity requirement regarding Joshua’s audio statement. See Brown at para. 52.

[25] Regarding the reliability criteria, the following factors regarding circumstantial guarantees of trustworthiness are not present in this instance:

1. There is no oath and a warning to the witness of the possible criminal consequences of lying;
2. There is no ability of the trier of fact to observe the demeanour of the witness as they would in a video statement;
3. The Crown will have no opportunity to cross-examine Joshua on this statement;
4. Joshua is not a disinterested witness. His statement was given at a time when bail hearings were ongoing or contemplated by his wife and brother.

[26] Regarding the reliability criteria, indicia of reliability favoring admission of the statements on behalf of the accused include:

1. The statement was audio recorded;
2. The statement was made to the police, who were persons adverse in interest to Joshua, and was tendered into evidence by the Crown;
3. Joshua had peculiar means of knowledge of what was occurring that morning, and was present at the time of the shooting of Tyler Johnson;
4. Joshua admitted to be the person wearing the dark hoodie accompanying Chad at a time when there was very little evidence to prove that fact;
5. Joshua indicated that Joshua was shot at twice by Chad. The evidence at trial is conflicting as to whether there was one or more shots fired that morning. Further, the police examined the scene after the audio statement was provided and were unable to confirm or disprove Joshua’s statements that multiple shots were fired;
6. The police, while not cross-examining Joshua, questioned him about his statements as the audio taped interview was ongoing;
7. This is not a case such as Post, where there was not even a touchstone of reliability. Joshua’s audio statement accurately depicts the parties on the surveillance tapes, and it is for the jury to determine whether the statement is credible in the context of all the other trial evidence.

[27] Frankly, if the Crown were making this application, I would not allow the statement to be admitted for the truth of its contents due to the lack of circumstantial guarantees as outlined above.

[28] However, on a relaxed standard of admissibility where trial fairness requires it, and a miscarriage of justice demands it, given the indicia of reliability favoring admissibility as outlined above, I have come to the conclusion that it would be unfair to deprive Brandon, Chad and Louis of the benefit of having all relevant, probative and reliable evidence before the jury. See Finta at para. 290.

[29] I have considered societal concerns in addition to the accused’s right to make full answer and defence. In my opinion, allowing Joshua’s statement to be relied upon by the other accused for the truth of its contents ensures that the trial process will arrive at the truth of what happened on the morning of November 30, 2013. See Post at para. 90.

[30] Joshua’s audio statement is already in evidence before the jury. Ultimately, it will be for the jury to decide if it is credible or not in the context of the trial evidence. This decision merely expands the use that the jury can make of the statement. Given Joshua’s decision not to testify, I find that this is one of those relatively rare cases where I should exercise my residual discretion to relax, in favour of the accused, a strict rule of evidence “where it is necessary to prevent a miscarriage of justice and where the danger against which an exclusionary rule aims to safeguard does not exist.” See Williams at para. 60 and Finta at para. 287.

Conclusion

IS THE STATEMENT OF JOSHUA ADMISSIBLE ON BEHALF OF THE OTHER ACCUSED PURSUANT TO THE KHELAWON PRINCIPLED EXCEPTION TO THE HEARSAY RULE?

[31] On a relaxed standard of admissibility, the accused have satisfied their onus that the hearsay statements adduced during Joshua’s audio interview on May 20, 2014 meet the requirements of necessity and reliability. Joshua’s audio statement made on May 20, 2014 can be used by the co-accused for the truth of their contents as part of their case to be argued before the jury.

Order

[32] The statements made by Joshua, in his audio statement recorded on May 20, 2014, pursuant to the principled approach to hearsay, can be relied upon by the co-accused for their truth as part of the co-accused’s case.

Skarica J. Released: April 27, 2017