Court File and Parties

Court File No.: 15-4953 Date: 2016-06-15

Ontario Superior Court of Justice

Between: HER MAJESTY THE QUEEN, Applicant (C. Gzik and K. Malkovich, for the Crown)

And: BRANDON BARREIRA, JOSHUA BARREIRA, CHAD DAVIDSON & LOUIS REBELO, Respondents (J. Goldlist for Brandon Barreira, P. Zaduk for Joshua Barreira, A. Audet for Chad Davidson, G. Dorsz for Louis Rebelo)

Heard: June 13 and 14, 2016

Reasons for Ruling on Voir Dire Regarding Statement of Accused Joshua Barreira

Justice Skarica

Overview

1Tyler Johnson was shot to death in downtown Hamilton. Six people were subsequently arrested. Two females were charged with accessory after the fact. Joshua Barreira and three male co-accused were charged with first degree murder.

2Eight hours after Mr. Barreira was arrested, the police interviewed Mr. Barreira and he made inculpatory statements placing him at the scene of the shooting, including admitting he shot the victim despite independent evidence suggesting he was not the shooter.

3The defence argues that Mr. Barreira was cold, sick, hungry, exhausted and denied his right to silence. The defence argues that the police used Mr. Barreira’s exhaustion to break him down and this caused the accused to give inculpatory statements.

Issues

4The issues to be determined are:

1. Was there oppression by the police that renders the statement made by Mr. Barreira inadmissible?
2. Were there inducements that prompted the accused to make an involuntary false confession and render the statement inadmissible?

Facts

5The facts are relatively straightforward.

6The victim, Tyler Johnson was shot to death at the corner of King and Caroline Streets in downtown Hamilton.

7There are numerous videos taken by businesses downtown and these videos show a group of men involved in the attack and shooting of Tyler Johnson. They do not show Joshua Barreira shooting the victim.

8Brandon Barreira, the brother of Joshua Barreira, was arrested on December 11, 2013.

9Joshua Barreira and his wife Jennifer and Ashley Davidson, a wife of the co-accused Chad Davidson, and Chad Davidson were all arrested on February 14, 2014.

10The fourth male, Louis Rebelo, was arrested on February 20, 2014.

11Joshua Barreira made a further statement to the police on May 20, 2014 and the defence concedes that the Crown is able to prove voluntariness of that statement beyond a reasonable doubt and that statement is admissible in evidence at the trial of this matter. Joshua Barreira also made a statement to a newspaper reporter and that statement is also conceded to be admissible at this trial.

12Joshua Barreira was arrested at about 2:28 p.m. on February 14, 2014 and was interviewed by Detective Adams approximately eight hours later from 10:21 p.m. until 1:23 a.m., a period of three hours.

13The transcript and video of the February 14, 2014 statement were entered as Exhibits 2A and 2B in the voir dire. An audio tape of the arrest was entered as Exhibit 1 and it is undisputed that the accused Joshua Barreira was provided with his rights to counsel and the standard caution regarding his right to remain silent.

14Joshua Barreira was taken to the Hamilton police station upon his arrest and at 2:50 p.m. until 3:06 p.m. was provided an opportunity to speak to his counsel Sandy Smordin. At 3:25 p.m. until 3:55 p.m., he was also provided an opportunity to speak to another counsel, Joe Fiorucci.

15At 4 p.m., Joshua Barreira was fed a Swiss Chalet dinner which Mr. Barreira indicated in his statement he puked up afterward.

16The police interviewed the two females first from 3 p.m. until 10 p.m. and then at 10:20 p.m. commenced the interview of Joshua Barreira, which lasted for about 3 hours.

Issue #1 - Oppression

Law

17The principles regarding the admission of accused’s statements and oppressive conduct by the police can be summarized as follows:

1. The burden is on the prosecution to prove beyond a reasonable doubt that the confession was voluntary – see R. v. Oickle, 2000 SCC 38 at para. 30.
2. Oppression has the potential to produce false confessions. If the police create conditions distasteful enough, a suspect may make a stress-compliant confession to escape those conditions. Alternately, oppressive conditions could overbear the suspect’s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police and gives an induced confession – see Oickle at para. 58.
3. Oppression can include factors such as depriving the suspect of food, clothing, water, sleep, medical attention, denying access to counsel and excessively aggressive, intimidating questioning over a prolonged period of time and use of non-existent evidence – see Oickle at paras. 59, 60. The application of the confession rule is contextual – see Oickle at para. 47 and R. v. Spencer, 2007 SCC 11 at para. 11.
4. The accused must have an operating mind which “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment.” – see Oickle at para. 63.
5. The exercise of an accused’s right to silence cannot, except in very limited circumstances, be used as evidence of guilt – see R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R 519 at paras. 41-51 and R. v. G.L., 2009 ONCA 501 at paras. 38, 39.
6. The common law recognizes that an individual has a right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities. The importance of police questioning in the fulfilment of their investigative role cannot be doubted – see R. v. Singh, 2007 SCC 48, [2007] S.C.J. No. 48 per Charron J. at para. 28.
7. There is nothing in the rule (regarding right to silence) to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Police persuasion short of denying the suspect the right to choose or depriving him of an operating mind does not breach the right to silence – see Singh at para. 46.
8. A lengthy interview, coupled with repeated refusals to answer some questions without first speaking to a lawyer, mandate close judicial scrutiny of the admissibility of the record of interview. In the end, what must be decided is whether the conduct of the state authorities denied the appellant the right to choose speech or silence or deprived him of an operating mind – see R. v. Rybak, 2008 ONCA 354, [2008] O.J. No. 1715 (C.A.) per Watt J. at para. 190.
9. The repeated assertion by a detained person during a lengthy interview that he does not want to speak to the police any further will provide strong and sometimes conclusive evidence that any subsequent statement was not the product of a free exercise of the detainee’s right to choose whether to speak. The question is, however, a factual question to be decided on a case by case basis by the trial judge – see R. v. Roy, 2003 ONCA 4272, [2003] O.J. No. 4252 (Ont. C.A.) per Doherty J. A. at para. 13.
10. A relevant factor in the contextual analysis is whether the accused is aggressive and a “mature and savvy participant” and that he unsuccessfully attempted many times to secure deals with the police - see Spencer at para. 21.

Application of Law to Facts

18The defence complains that the accused was kept in cold conditions without a blanket. Detective Adams testified that earlier in the afternoon the accused complained that he was cold and his jacket was given to him. The jacket is visible in the video and appears to be a bulky jacket that should keep one warm. The accused had no shoes as he had earlier in the day fled barefoot in the snow to the neighbour’s house where he was arrested. The accused was then given the standard issue slippers at the station.

19The accused however indicates in the interview that it is getting warmer in the room and he could fall asleep nice and easy – see page 19 of the transcript in Exhibit 2B.

20The accused complains that he is tired and could fall asleep and at times puts his head down on the officer’s desk. However, repeatedly during the interview, the accused perks up and very attentively stares at the videos that are shown to him during the interview.

21The accused was arrested at about 2:30 p.m. and fed Swiss Chalet and a coke at about 4 p.m. The accused says he puked it all up but there was no vomit or smell in his cell. Further, when the accused complains in the video that he is thirsty and/or hungry, drinks, in the form of water and coke, are provided to him. Later in the video, chips and a chocolate bar are given to him, which he can be seen to be eating in the video. This food does not qualify as health food but it can’t be said that the accused was deprived of drink or food – see pages 79-80 of the transcript.

22The video does not show that the accused is sick in any significant way.

23The defence indicates that the accused said over 50 times that he did not want to say anything. This issue requires close judicial scrutiny to decide whether the accused was deprived of his right to choose speech or silence or was deprived of an operating mind.

24Going through the transcript, one sees that the accused repeatedly says he won’t answer questions but then does so anyway on numerous occasions. Examples in the Exhibit 2B transcript include:

1. At page 12-13 of the transcript, the accused talks about his construction business and how his disability impacts his work.
2. At page 17, the accused says he’s not answering anything else and his lawyer told him not to answer any questions but then immediately engages in a discussion as to where Tyler got shot – heart or head. The accused then volunteers that he’s been waiting to be arrested and then at page 18 when asked why he did not go to the police, the accused answers that he did not do so because of his record and what has happened in the past.
3. At page 19 the accused again says that his lawyer advised him not to talk but then he does just that and criticizes the police and indicates, “You guys are helping me go fucking mentally insane.”
4. At page 25, the officer tells the accused that his wife Jennifer who has been arrested has been saying good things about the accused and the accused volunteers that she is a good girl and he loves her to death. At page 26, the accused says that Jennifer is a poor innocent girl sitting in jail.
5. At page 30, the accused says he’s not answering any more questions saying, “This is bullshit.” The officer says he doesn’t have to answer them but the officer has to ask them. The accused then says to keep going and the next question is regarding the date of his brother’s arrest and the accused gives a date of arrest.
6. At page 34, 35, the accused indicates that he is not answering the officer’s questions but then indicates he was testing the officer because he knows how he works. The accused goes on to say, “Fuck off, I’m not answering shit” but almost immediately starts to give information regarding knowing people and going to school with them.
7. At page 41, the accused views a video and is asked if he knows someone and responds that it looks like his mother’s boyfriend.
8. At page 44, the accused talks with the officer about Roberto Ferreira.
9. From pages 44-54, the accused and the officer make running commentaries regarding their watching of videos and at page 54, the accused clarifies that when he is saying yeah, he is not answering but just saying yeah when looking at the video.
10. At page 56, the accused out of the blue asks the whereabouts of Detective Kavanaugh, a Hamilton police officer who loves him.
11. At page 61, the accused volunteers that he saw the owner of Vida La Pita at the barbershop earlier that day.
12. At page 70, the accused says he wants to go to sleep but views videos again and at page 71, when seeing the victim Tyler Johnson, indicates that he knows who he is.
13. At page 75, while viewing the videos near the murder scene and individuals there, including his brother Brandon Barreira, the accused blurts out that he will give a statement that he pulled the trigger if the police let his younger brother and everybody go. The officer says he knows that the accused did not pull the trigger but the accused says he does not care as he just wants his brother out of jail.
14. At page 76, the accused in the same paragraph says he has nothing to say but in the next sentence says that if the police let Brandon and Jenn out, “I’ll say I did it.” The accused then says he’ll sign a paper that he shot Tyler Johnson in the head and then changes it to his chest or heart and the officer tells him that the accused did not shoot him.
15. The accused at page 77 wants to be taken back to his room but is given chips and a chocolate bar and a drink and again at page 81 says that he is not answering “shit” but almost immediately afterward offers again to say that he did the shooting if the police let his brother and Jenn go.
16. The accused then again watches videos and commentary between the officer and the accused continues from pages 81 – 111. At page 111, near the end of the video, the accused wants to leave and the officer touches the accused mildly with a finger as the accused gets near the officer and tells him to sit down and the accused does take a seat. An argument develops between the officer and the accused for the next four pages to the end of the video. The officer says that the accused does not want to help Jenn and his brother and that the officer has said that from the start.

Conclusion Regarding Issue #1 - Oppression

25After seeing the video and reviewing the transcript, it is my opinion that the accused while telling the officer that he did not want to talk, did in fact contradict that assertion with very little prodding by the police. This accused knew his rights and talked anyway. This was a savvy and experienced individual with a lengthy criminal record (see Exhibit 3) who tested the police and repeatedly tried to make a deal in exchange for letting his wife and brother go. My viewing of the video shows an individual who not only was not intimidated by the police but took ample opportunity to berate the police with a variety of long standing grievances.

26I am satisfied beyond a reasonable doubt that the accused was aware of his right to silence, chose not to exercise it and had an operating mind throughout.

27I am satisfied beyond a reasonable doubt that there was no oppression by the police.

Issue #2 – Were There Any Inducements?

Law

28The relevant law, in addition to the law previously summarized, relevant to the impact of inducements, on the issue of voluntariness, is as follows:

1. Statements to persons in authority are inadmissible if they are the result of “fear of prejudice or hope of advantage.” The classic example is the prospect of leniency from the courts – see Oickle at para. 49.
2. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been over borne. The most important consideration in all cases is to look for a quid pro quo offer by interrogators regardless of whether it comes in the form of a threat or a promise – see Oickle at para. 57. However, while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement – see Spencer at para. 15.
3. The truth or falsity of a confession is a relevant factor in the inquiry in a voir dire regarding the voluntariness of a confession – see R. v. DeClercq, 1968 SCC 24, [1968] R.C.S. 902 at page 911. (Note that the Supreme Court of Canada relied on the British case of Hammond which was overruled by the House of Lords in Wong Kam-Ming (1978) 69 Cr. App. R. 47).

29The defence argues that the officer brought up the fact that the accused’s wife was downstairs in custody and that he just spoke to her – see page 25 of the transcript. The accused says at page 26 that Jenn is innocent. Jenn is brought up by the officer at pages 26, 27, 28, 81, 87, 109; 110. 112, 113, concluding at page 115 that the accused doesn’t want to help Jenn and his brother and that the officer has been saying it from the start.

30The gist of the officer’s evidence at the pages listed above is that he wants the accused to tell the truth and that can help out Jenn and his brother.

31The defence argues that the officer used the mention of Jenn and the accused’s brother as an inducement to get him to talk and this is what prompted the accused to falsely confess to the shooting. The evidence is (agreed to by the Crown) that the accused is not the shooter.

32However, as the Crown points out, it was not the police who introduced the prospect of a false confession to help out the accused’s family members. The accused at page 17 of the transcript indicates, “I was so fucked up in my head I was gonna come to the cops and just say I did it to get him out of jail…I don’t care about my life anymore.”

33Thereafter, it is the accused who continually wants to make a deal which would consist of his admitting to being the shooter on paper if the police agree to let his family members go. It is the officer who refuses to accept this deal as it would not be in accord with the truth. Accordingly, I find that in this context, the officer simply wanted the truth from the accused and indicated to the accused that the truth could help his family.

34Accordingly, the false confession was the accused’s idea from the beginning in the hope to help his family and this hope was not induced by the actions or comments of the officer.

35I have considered the accused’s false confession as a factor pursuant to DeClercq but I conclude that the officer did not make any inducements to generate that false confession.

Conclusion Regarding Issue #2 - Inducements

36Accordingly, I find that the officer did not make any inducements to the accused. There was no quid pro quo in the form of a threat or promise as outlined by Oickle. The accused’s hope for favorable treatment for his family, while arguably a noble act by the accused, was self-generated and owed its origin to the accused’s affection for his family members and not by anything improperly done or said by the police.

Overall Conclusion

37The Crown accordingly has proved that the statement given by the accused on February 14, 2014 is voluntary beyond a reasonable doubt.

38The defence asks me to exercise my discretion to exclude the statements from evidence at this trial on the basis it would cause the trial to be unfair – see R. v. Harrer, 1995 SCC 70, [1995] 3 SCR 562 at para. 21. I do not agree that the admission of this evidence would cause the trial to be unfair and decline to exercise my discretion in the manner requested by the defence.

Order

39The statement of Joshua Barreira dated February 14, 2014 is a voluntary statement and is admissible at his trial against him only subject to editing to delete references to his criminal record and criminal past.

40The statement of Joshua Barreira dated May 20, 2014 is a voluntary statement and is admissible at his trial against him. I believe that there is no need to edit this statement.

41The statement of Joshua Barreira to the newspaper reporter Susan Clairmont is also admissible at his trial against him as it was not made to a person in authority.