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 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 14, 15, 2017

Reasons for Ruling – Crown Application to Permit Introduction of Other Discreditable Conduct

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 three other men when approaching the victim. The alleged shooter, Chad Davidson and one of the other three men, Joshua Barreira have significant criminal pasts. Accordingly, a whole host of discreditable conduct issues need to be resolved at this pre-trial motion on a charge of first degree murder.

Issues

[2] Should the Crown be permitted to introduce prior discreditable conduct against the accused Joshua Barreira, who has a significant criminal background extending many years?

[3] Should the Crown be permitted to introduce prior discreditable conduct against the accused Chad Davidson, who also has a significant criminal background extending many years?

Issue #1 – Crown Application Allowing the Admission of Prior Discreditable Conduct Against the Accused Joshua Barreira

Background Facts

[4] Chad Davidson and the three other accused are charged with the first degree murder of Tyler 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, the Crown will adduce a videotape which allegedly shows the victim, Mr. Johnson, being shot at close range by the accused, Mr. Davidson.

[6] I understand the Crown’s theory is that Mr. Davidson 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 Barreira, has given three statements and the latter two statements indicate that Chad Davidson 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 Mr. Barreira and not against Mr. Davidson.

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

[9] Given the number of discreditable conduct rulings that are required to be made, I propose to outline the basic legal principles that are applicable and then apply the principles to the varying factual scenarios brought before me.

Law

[10] The leading case in this area is R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. Justice Binnie held at paras. 55, 69, 70, 74, 75:

55 Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.

(2) Identification of the "Issue in Question" is an Important Control

69 McLachlin J. speaks in B. (C.R.), supra, of the "value of the evidence in relation to an issue in question" (p. 732 (emphasis added)). McIntyre J., in Sweitzer, supra, emphasized that whether or not probative value exceeds prejudicial effect can only be determined in light of the purpose for which [page936] the evidence is proffered (p. 953). The importance of issue identification was also emphasized in D. (L.E.), supra, at p. 121; C. (M.H.), supra, at p. 771; R. v. Litchfield, 1993 SCC 44, [1993] 4 S.C.R. 333, at p. 358; R. v. B. (F.F.), 1993 SCC 167, [1993] 1 S.C.R. 697, at p. 731; R. v. Lepage, 1995 SCC 123, [1995] 1 S.C.R. 654, at para. 35; and Arp, supra, at para. 48.

70 An indication of the importance of identifying "the issue in question" is that the trial judge is required to instruct the jury that they may use the evidence in relation to that issue and not otherwise.

74 The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. It is therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. If the issue has ceased to be in dispute, as for example when the fact is admitted by the accused, then the evidence is irrelevant and it must be excluded: R. v. Clermont, 1986 SCC 26, [1986] 2 S.C.R. 131, at p. 136; R. v. Bosley (1992), 1992 ONCA 2838, 18 C.R. (4th) 347 (Ont. C.A.), at p. 360; R. v. Proctor (1992), 1992 MBCA 2763, 69 C.C.C. (3d) 436 (Man. C.A.), at p. 447; R. v. Hanna (1990), 1990 BCCA 11027, 57 C.C.C. (3d) 392 (B.C.C.A.); and B. (L.), supra, at p. 50. The relative importance of the issue in the particular trial may also have a bearing on the weighing up of factors for and against admissibility. Similar fact evidence that [page938] is virtually conclusive of a minor issue may still be excluded for reasons of overall prejudice.

75 The "issues in question" are not, it should be emphasized, categories of admissibility. Their identification is simply an element of the admissibility analysis which, as stated, turns on weighing probative value against prejudice.

[11] It is clear that the basic and fundamental question that must be determined is whether the probative value of the evidence outweighs its prejudicial effect – see R. v. Arp, 1998 SCC 769, 129 C.C.C. (3d) 321 (S.C.C.) at para. 42, Handy at para. 54.

[12] Justice Charron in R. v. L.B. (1997), 1997 ONCA 3187, 116 C.C.C. (3d) 481, [1997] O.J. No. 3042 (C.A.) leave refused (1997) SCCA No. 524 outlined the enquiry process as follows at para. 10:

Because of the inherently prejudicial nature of evidence of discreditable conduct, it is subject to a general exclusionary rule unless the "scales tip in favour of probative value." 9 The trial judge who is charged with the delicate process of balancing the probative value of the proposed evidence against its prejudicial effect should inquire into the following matters.

1. Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?
2. If so, is the proposed evidence relevant and material?
3. If relevant and material, is the proposed evidence discreditable to the accused?
4. If discreditable, does its probative value outweigh its prejudicial effect?

Application of Law to Factual Scenarios Involving Joshua Barreira

[13] The Crown possesses evidence from Marta Leite, Joshua Barreira’s mother, that Joshua Barreira started smoking marijuana around 16 years of age and has continued doing so until he was incarcerated on the charges before the court. The Crown concedes that the prejudicial effect of this evidence outweighs the probative value. Accordingly, this evidence is not admissible at this trial.

[14] The Crown possesses evidence from Marta Leite that Joshua Barreira dealt both marijuana and cocaine since he was 18 years old. Joshua Barreira’s date of birth is April 25, 1988. The Crown concedes that the prejudicial effect of this evidence outweighs the probative value. Accordingly, this evidence is not admissible at trial.

[15] The Crown possesses evidence from Marta Leite that Joshua Barreira got money to finance trips out of the country through selling drugs. The Crown concedes that the prejudicial effect of this evidence outweighs any probative value. Accordingly, this evidence is not admissible at trial.

[16] The Crown possesses evidence that Joshua Barreira’s driver’s licence was under suspension on November 30, 2013, the date of the murder. This comes from Marta Leite and Joshua Barreira (Joshua) himself. In his second statement to the police, taken on May 20, 2014, Joshua indicates at pages 33-34 that he is driving the car and cannot be driving because he is disqualified. He also notes that if he gets arrested, it is going to link him back to the murder. Joshua indicates at page 35 that he did not want to be driving. Joshua indicates at page 71 and 72 that he is trying to be discreet, he is driving a Jaguar, and should not be driving. He also did not want Chad opening crack in his car as the police could pull him over and arrest Joshua. At page 73, Joshua indicates that he does not want Chad opening the crack in his car and he’s pretty sure that he pulls into the back of the store. Joshua wants Chad to get out of the car because Chad is getting wiry and might rob Joshua. At pages 78-79, Joshua says he has underwear full of dope, and there are cops and cameras around. He gets paranoid but continues the drug deal around the store. Joshua is walking with Chad and Chad sees the victim Mr. Johnson. Chad approaches him and calls Johnson a name, and Chad shoots Johnson after Johnson takes a swing at him. Everyone gets into Joshua’s car except Joshua, and after Chad fires two shots at Joshua, they all leave and Joshua takes a cab.

[17] Given this statement, it is reasonable to infer that Joshua’s explanation for stopping at the murder scene is that he did not want to be caught driving his car due to his vulnerability to driving disqualified/drug charges. Hence, Chad and Joshua got out of their vehicle at the murder scene, and Chad, while conducting a drug deal with Joshua, saw the victim. Chad then confronted and shot the victim without anyone else knowing it was going to happen.

[18] Accordingly, given this explanation for the crime by Joshua Barreira, it is my opinion that Joshua Barreira, being under suspension and having outstanding charges of drug trafficking (if that is the case), and being involved in drug trafficking for a period of time before and during the murder, are admissible as part of the narrative. Evidence of narrative can be used to explain the context in which the alleged events occur – see, for example R. v. F. (D.S.) (1999), 1999 ONCA 3704, 132 C.C.C. (3d) 97 at para. 22 and R. v. Zhang, [2000] O.J. No. 1617 (C.A.) at para. 16. The position of the defence at trial can be an important consideration in determining the facts in issue and will assist in assessing the potential probative value of the discreditable conduct – see R. v. Batte (2000), 2000 ONCA 5751, 145 C.C.C. (3d) 449 (Ont. C.A.) per Doherty J. A. at para. 90. In my opinion, evidence of Joshua’s driving suspension and drug trafficking proximate to the murder charge has a probative value that exceeds any prejudicial effect.

[19] The Crown possesses evidence from Marta Leite that a portion of Joshua’s residence might be a crack house. At page 68 of Joshua’s second statement to the police on May 20, 2014, Joshua indicates that the house he owned at Cathcart used to have a lot of crack heads in it until he kicked everyone out and tried to make it normal. In my opinion, this evidence has no probative value at all and the prejudicial effect completely exceeds any probative value this evidence might have.

[20] Evidence rebutting the defence of innocent association is admissible provided that the probative value exceeds the prejudicial effect – see R. v. L.E.D., 1989 SCC 74, 50 C.C.C. (3d) 142 SCC per Sopinka J. at page 156 C.C.C. and R. v. P.S. (2000), 2000 ONCA 5706, 144 C.C.C. (3d) 120 (C.A.) per Moldaver J.A. at para. 31 and R. v. Chenier, 2006 ONCA 3560, [2006] O.J. No. 489 (C.A.) at paras. 79, 80. Essential to the Crown’s case is the relationship between the various accused. The Crown alleges that the accused acted in concert, and the video shows the accused walking together toward the deceased in a group like fashion. Accordingly, evidence showing the relationship of the accused is highly probative of whether or not they were acting in concert on the night of the murder.

[21] Marta Leite testified that Chad Davidson sold stolen property to the Barreira family when he was approximately 14. Joshua would have been 6-7 years old at the time. Chad Davidson visited the Barreira residence two times when he was between 14 and 16. This is approximately 20 years ago. She testified that she knew that Joshua was selling drugs to Chad. This is confirmed by Joshua in his second statement where he indicates he was selling drugs to Chad, and that he was doing so on the night of the murder. Joshua also indicated that Louie (presumably Louis Rebelo) knew that Joshua sold drugs and Louie does coke occasionally. Marta Leite, in a letter to Chad Davidson, refers to Chad Davidson saying he would do anything for Joshua. This evidence of a long standing relationship between Chad Davidson and Barreira family (including Joshua), which references their association in a criminal lifestyle, is highly probative to rebut any defence of innocent association. This is especially since Joshua’s last two statements are that on the night of the murder three of the accused were merely in the wrong place at the wrong time, and had no idea that a murder was in the offing. The evidence outlined above has probative value that exceeds any prejudicial effect and is admissible at this trial.

[22] The Crown seeks to introduce records from the Barton Street jail in Hamilton, which show that Chad Davidson and Joshua Barreira were in the jail at the same time from December 8 to December 29, 2008. The records show that they were in different units and do not establish that these two individuals had any contact at all while at the jail in December of 2008. In my opinion, there is virtually no probative value in these records without more evidence of contact and the prejudicial effect of these records outweighs any limited probative value that these jail records may have. Accordingly, these jail records are not admissible at this trial.

[23] The two letters that Marta Leite sent to Chad Davidson, included in Tab 2 and 3 of the Crown’s application record, are simply letters sent by Marta Leite to Chad Davidson. They have no more probative value than a will say statement. The letters themselves are not admissible as they have no probative value at all. Marta Leite can testify to any conversations she had with Chad Davidson regarding any relevant matter at this trial in the way other witnesses can. In her second letter, Marta Leite refers to Josh going crazy and having “fucked up” dreams and “he hears voices”. The defence argues this evidence is not admissible, should she testify to that. I note that Joshua, in his third statement dated September 11, 2014 to Susan Clairmont, indicates that he is starting to have dreams and finishes the statement by saying, “I see Tyler standing by my bed saying, ‘Hey bro, what? You couldn’t save me?’”. My impression is that this statement could be interpreted by the jury in a variety of different ways, which could include an inference of regret and indicative of a guilty conscience. Similar statements are made by Joshua Barreira regarding his dreams in his second statement, dated May 20, 2014, at pages 18-19. I note that in R. v. Terry, 1996 SCC 199, [1996] 2 S.C.R. 207, the accused who fatally stabbed a man told witnesses about a dream concerning the specific circumstances of the killing to them shortly after the event. The Supreme Court of Canada held that the dream was of limited value but it was admissible as part of the narrative and it was for the jury to decide what inference, if any, should be drawn in the context of all the evidence. I find that the evidence of Joshua having dreams regarding Tyler Johnston is admissible as part of the narrative, and it is up to the jury to decide what inferences they wish to draw. I find that the evidence of Joshua’s dreams as outlined by both Joshua and his mother has probative value that exceeds any prejudicial effect.

[24] Joshua Barreira’s criminal record includes convictions in 2006 for possession of a loaded prohibited or restricted firearm, possession of firearm or ammunition contrary to a prohibition order, and in 2009, a conviction for counsel to commit murder. The Crown seeks to introduce evidence of these convictions before the jury. No details have been provided regarding the details of these offences.

[25] The Crown argues that the convictions for firearms some six and a half years ago are probative of Joshua Barreira having access to firearms. The Crown argues that the conviction for counsel to commit murder in 2009 is proof that Joshua Barreira understands the law regarding murder in that you don’t have to be the shooter but it is sufficient to be a party. In my opinion these convictions, without more, have prejudicial effect that exceeds any probative value. In fact, the evidence here is that Joshua did not have any firearms and there is no evidence regarding Joshua assisting Chad Davidson in obtaining a firearm. Joshua, in the statement to Susan Clairmont, argues that he is not guilty of murder as he is not the shooter, which is the opposite of the inference the Crown wishes the jury to make. In my opinion, these convictions are proof of propensity towards violence, accessing weapons and being a party to murder. This is the prohibited purpose (evidence of bad character of the accused) that the law regarding discreditable conduct seeks to avoid when the prejudicial effect outweighs the probative value – see Handy at para. 50 and R. v. Bhular, 2011 BCCA 395 at para. 17.

[26] Chris Radej testified at the preliminary hearing that in or around September 28, 2013, two months before the murder, Tyler Johnson was with a taller friend and an unknown male became involved in a fight with Tyler Johnson’s taller friend, and Tyler got involved in the fight as well. Brandon Barreira (Brandon) approached Chris Radej and tried to pick a fight but Chris Radej was not interested in fighting and avoided an altercation with Brandon. Chris Radej was unable to identify the unknown male but indicated he was associated with Brandon Barreira. Tyler Johnson and his friend ran off. The unknown male then approached Chris Radej and punched him. The police intervened shortly after. Chris Radej heard through the rumour mill that the man who punched him was Brandon’s brother.

[27] Joshua Barreira in his second statement, dated May 20, 2014, at pages 92-98, relates an incident where Brandon Barreira is bumped by a Chris and he intervenes. Tyler Johnson is there. This happens some two to four months before the murder. The jury could easily draw an inference with this admission that it was indeed Joshua Barreira who is the unknown male who is involved with Tyler Johnson and his friend and then later punches Chris.

[28] The defence properly concedes that the evidence regarding this altercation is probative because it may demonstrate motive and/or animus between the deceased and some of the accused – see L.B. at para. 8, F. (D.S.) at para. 19, Batte at para. 103 and R. v. Moo, 2009 ONCA 645 at paras. 97 – 100.

[29] Accordingly, the evidence of Chris Radej and the statements of Joshua Barreira regarding the incident on September 27/28 involving the Barreira brothers and Chris Radej and Tyler Johnson have probative value that exceeds any prejudicial effect and are admissible in evidence.

Conclusion Regarding Issue #1 – Crown Application Allowing the Admission of Prior Discreditable Conduct Against the Accused Joshua Barreira

[30] The Crown will be permitted to tender the following items of evidence at the trial: (1) Joshua’s driver’s licence was under suspension at the time of the murder; (2) Joshua having outstanding drug charges and/or being involved in drug trafficking for a period of time before and during the murder; (3) evidence showing the relationships between the accused including being involved in a criminal lifestyle with each other including Chad Davidson selling stolen property to the Barreiras and Joshua Barreira selling drugs to Chad Davidson; (4) evidence of Joshua’s dreams regarding the deceased Tyler Johnston; (5) evidence of an altercation involving Brandon Barreira, Joshua Barreira aka unknown male, Chris Radej, Tyler Johnson and tall male on or about September 27, 28, 2013.

[31] The Crown will not be permitted to tender the following items of evidence at the trial: (1) Joshua Barreira smoking marijuana from 16 years of age to his arrest on this murder charge; (2) Joshua Barreira trafficking in drugs since he was 18 with the exception of trafficking in drugs to/or with the co-accused or trafficking in drugs proximate to the murder; (3) Joshua financing trips out of the country with drug money; (4) Joshua owning a crack house at Cathcart in Hamilton; (5) records of incarceration of Chad Davidson and Joshua Barreira at a time they were both in the Barton Street jail; (6) the two letters sent by Marta Leite to Chad Davidson when he was in jail on this charge; (7) Joshua Barreira’s criminal convictions for possession of firearms in 2006 and counsel to commit murder in 2009.

Issue #2 – Crown Application Allowing the Admission of Prior Discreditable Conduct Against the Accused Chad Davidson

[32] Counsel for Mr. Davidson (Chad) objects to the admission of Ms. Leite testifying to the sale of stolen goods by Chad, when he was a teenager, to the Barreira family. As indicated in paras. 20 and 21 above in this ruling, I find that this evidence is admissible as it forms part of what appears to be a long standing relationship between Chad Davidson and Joshua Barreira, including their association in a criminal lifestyle and is admissible to rebut the defence of innocent association. Joshua selling drugs to Chad Davidson is also admissible on this basis (counsel does not contest the admissibility of the drug sales by Joshua to Chad).

[33] Counsel for Mr. Davidson points out that, at page 67 of the Marta Leite transcript, Ms. Leite testifies that she’s known of Chad for a long time and has no relationship with him. Ms. Leite testifies at page 80 of the preliminary inquiry that she does not know if Chad and Joshua were friends, acquaintances, just “drug related stuff.” She has seen Chad going to Joshua’s house a couple of times and intimates Chad was there very quickly and left and she knew what was going on. At page 104 of the January 27 transcript, Ms. Leite says she saw Chad at the Cathcart residence two times despite being there frequently. This evidence of limited association appears to be contradicted by Ms. Leite in one of the letters she sent to Chad after the murder of Mr. Johnson. In her first letter to Chad on June 7, 2014, she indicates, “you’ve said many times in the past that you would do anything for Josh”. Assuming Chad did say that to Ms. Leite, this would be strong evidence of a close association between Chad and Joshua. All of this evidence relates to weight and not admissibility as the evidence of criminal associations and the “do anything for Josh” statement can be inferred by the jury to be evidence to rebut innocent association.

[34] The Crown seeks to adduce into evidence a home invasion allegedly committed by Chad at the Barreira home. Ms. Leite testifies at page 80 – 81 of the January 26 transcript that she was home invaded on March 13, 2007 at gun point. She indicates that the people in the jail told her it was Chad and Jeremy Hall. She testified that they were wearing masks but when she saw Chad coming out of the house one day, there was something in Chad’s eyes that told her that it was Chad that home invaded her and held her and Brandon at gunpoint. No one was ever arrested or charged. Counsel for Mr. Davidson pointed out that Mr. Davidson’s criminal record shows that he received a three year sentence on September 6, 2006 and then another 90 days concurrent on February 5, 2007 and accordingly, it is reasonable to conclude that Mr. Davidson was in custody at the time of the home invasion on March 13, 2007.

[35] Accordingly, Ms. Leite’s evidence that Chad Davidson home invaded her on March 13, 2007 is not credible, has no probative value but possesses enormous prejudicial effect if it were admitted. Ms. Leite’s evidence about Chad Davidson home invading her is not admissible at this trial.

[36] Regarding the two letters from Ms. Leite to Chad, I have already held that they are will says and cannot be filed by the Crown. Ms. Leite will be permitted to testify about phone conversations between her and Chad at the jail as they appear to be admissions against interest and/or a confession by Chad admitting participation in the murder. Ms. Leite can testify that Chad told her in the past that he would do anything for Joshua. These statements by Chad to her are relevant to his participation in the crime and his associations with Joshua and the probative value of them exceeds any prejudicial effect. I agree that Ms. Leite’s opinions and beliefs that Chad was the shooter and her requests to have him plead guilty have no probative value and the prejudicial effect of her beliefs and requests outweighs any negligible probative value of that evidence and is not admissible at this trial.

[37] Ms. Leite, in her January 26 transcript at pages 68, 69, and in her January 27 transcript at pages 126 -130, indicates that Chad Davidson told her that her kids were innocent and were coming home, and that they did not do anything, and told her “the story”. At page 121 of the January 27 transcript, Ms. Leite indicates she spoke to Chad for a full twenty minutes on two occasions on the phone. Chad phoned her. Defence counsel did not want to hear “the story” and then cross-examined Ms. Leite regarding a “pen package” she sent to the jail. “The story” is given by Ms. Leite at page 68, 69 of the January 26 transcript. Basically, Chad phoned Ms. Leite and told Ms. Leite that he was going to confess to the crime and her boys were coming home and he wanted her to do a favour by getting a few things for him. I do not agree with defence counsel that Ms. Leite sending a pen package to Mr. Davidson while he was in jail after this conversation has no probative value. It has probative value in the context of what Chad promised to Ms. Leite and what Ms. Leite did in response to that story. The probative value of this confession is considerable and any evidence supporting that confession has probative value. The prejudicial effect is that Chad phoned from the jail after being charged with first degree murder, but a person being in jail after being charged with first degree murder has limited prejudicial effect in the context of his phoning and confessing to murder to Ms. Leite. All of the circumstances of this confession need to be available to the jury in order to assist them in their fact finding function. This is an example where the following comments by Justice Nordheimer in R. v. Skeete, 2012 ONSC 737 are instructive at paragraph 15:

That said, it remains the fact that a "criminal trial is, after all, about the search for truth". 1 A jury ought to be provided with information that will allow them to put the central facts into context including the nature of the relationships between persons connected to the events that might not otherwise be obvious. Jurors should not be placed in a situation where they are attempting to perform their truth seeking function in what is effectively either a factual vacuum or an artificial one. As Dambrot J. said in R. v. Riley, 2009 ONSC 15451, [2009] O.J. No. 1374 (S.C.J.) at para. 60:

I say that this case is instructive because it makes clear that the Crown is entitled to lead narrative evidence, that is, evidence that tells the story of a crime in a manner that makes it possible for the jury to properly carry out its fact finding function.

[38] Accordingly, I find that the evidence of Ms. Leite regarding the confession she says Chad made to her, and the pen pack evidence she testified to in regard to Chad’s confession, have significant probative value that exceeds any prejudicial effect.

[39] Tab 4 of the Crown’s application contains three photos taken by Special Constable Bowman of Chad Davidson at the Hamilton police station on October 24th, 2013. Apparently, Chad had been arrested on a charge of breach of probation. The first photo shows Chad in a bright red baggy sweat pants and red sweatshirt. The second photo shows a frontal face view with a black tattoo visible on Chad’s left neck. The third photo shows a black tattoo on the right neck. The photos all have the logo of Hamilton Police Service under the photos. I found these photos useful in assessing the admissibility of the Leaney/Brown “prior acquaintance/better position” test in a previous ruling regarding the identification evidence of Krystal Dore and Danielle Waun. Krystal Dore indicated in her KGB statement that Chad had black tattoos on his neck and there they are at Tab 4. Krystal Dore testified that the man wearing the red sweatshirt in the video from the crime scene was Chad Davidson and he was wearing a red hooded sweatshirt that she has seen before. A comparison of Exhibit DC4 (a photo of the crime scene video showing a man wearing a bright red sweatshirt) and the photo taken at the police station at Tab 4 both show a similar bright red sweatshirt with no distinctive decals or paraphernalia on the sweatshirt. Danielle Waun, the other identification witness who viewed the video, also picked out Chad Davidson from the video as the man wearing the red sweatshirt. Danielle indicated that she had seen Chad wear red before and red was his favorite color but conceded that red is a common color for clothing. I find that the three photos at Tab 4, taken approximately a month before the murder, have significant value to the jury in assessing the weight to be given to the Leaney/Brown identification evidence of Krystal Dore and Danielle Waun. The prejudicial effect is that the photos show that Chad was arrested on a breach of probation charge a month before the murder occurred. This is referred to as moral prejudice – see Handy at paras. 139 – 142. However, I am confident no Canadian jury would ever be inflamed to convict an accused of a first degree murder charge just because they learned he was arrested of a minor criminal charge just before the murder allegation – see Handy at paras 139-140 and R. v. Nurse and Plummer, [2014] ONSC at para. 53. Further, a limiting instruction is available to ensure that any moral prejudice is minimized – see Handy at para. 70. Accordingly, the three photos at Tab 4 of the Crown’s application taken on October 24, 2013 by Special Constable Brown have probative value that exceeds any prejudicial effect and these three photos are admissible in evidence at this trial.

[40] Tab 5 of the Crown’s application contains three photos that were taken from Krystal Dore’s phone. They show tattoos on Chad Davidson’s upper body, neck, hands and arms. These photos were taken from Ashley Dore’s cell phone and were taken at an unknown time.

[41] Dealing with the middle photo in Tab 5 first, Chad Davidson is wearing a muscle shirt and one can see tattoos on his arms, neck, wrists and right hand. Krystal Dore in her KGB statement indicated that Chad had tattoos on his hands, knuckles and wrists and tattoos on his neck. I found this photo useful in the Leaney/Brown application and I find that the jury would find this photo helpful in assessing the weight to be given to Krystal Dore’s identification of Chad Davidson on the videos pursuant to the “prior acquaintance/better position” test. This photo was taken from Ashely Dore’s cell phone and there is no prejudicial effect from the jury seeing this photo. Certainly, the probative value of the photo exceeds any prejudicial effect and it is admissible at this trial.

[42] Regarding the first photo at Tab 5, there are two guns tattooed on Chad’s chest area that are very prominent and striking. The Crown says that these tattoos are relevant to the issue of Chad having access to guns and possession of guns.

[43] In R. v. Pan, 2014 ONSC 4056, Justice Boswell dealt with murder charges where the accused shot a husband and wife in the head during a home invasion. The wife died and the husband survived. One of the co-accused on a Pollock application sought to introduce evidence of a variety of tattoos on another accused. Justice Boswell allowed the introduction into evidence of a tattoo with the words “Snypa” along with a tattoo of an AK-47 on the ground that it demonstrated the accused’s fascination with the gun culture – see para. 83.

[44] In R. v. Skeete, 2012 ONSC 737, Justice Nordheimer dealt with an application by the Crown to introduce evidence of a tattoo of a shotgun shell on the accused’s forearm. The charge was murder with the murder weapon being a .22 calibre handgun. Justice Nordheimer held that the tattoo might show a particular interest in firearms but that is different than demonstrating a familiarity with them. Justice Nordheimer disallowed this tattoo evidence holding that it might have assisted the Crown’s position if a shotgun had been used in the murder.

[45] The common thread from these two cases is that the tattoo evidence of a gun might be evidence of a fascination or interest in guns. The Crown seeks to go much further and seeks the admission of the tattoo to prove that Chad Davidson was more likely to access or be in possession of a handgun due to the handgun tattoos on his chest. In my opinion, these tattoos of guns are not probative of possession or likelihood of the ability to access handguns. The prejudicial effect of handgun tattoos on a charge of murder where a handgun was used is high. The prejudicial effect of the handgun tattoos far exceeds any probative value, and the evidence of handgun tattoos on Mr. Davidson is not admissible at this trial.

[46] The third photo at Tab 5 shows a tattoo with the letters “NMIF” tattooed on Mr. Davidson’s left forearm. The Crown wishes to call witnesses to testify that the letters “NMIF” mean “never murder in fear”. There was no evidence placed before me as to when this tattoo was etched into Mr. Davidson’s forearm. The Crown argues that this tattoo and evidence as to its meaning are relevant to intent to murder and self-defence.

[47] In R. v. Abbey, 2009 ONCA 624, three gang members provided evidence of the meaning of a tear drop tattoo on the accused’s face. Voir dires were held with each witness regarding what the tear drop meant to them. The tear drop had a potential meaning that the accused had killed someone. There was evidence that the accused had no tear drop before the alleged murder but had it after the alleged murder. Justice Doherty held at paragraph 160 that this evidence was potentially an important link in the Crown’s case.

[48] There is no such link here. Even if the Crown were to introduce the meaning of the tattoo, what issue is it relevant to? Wearing a tattoo that means never murder in fear is not proof of intent to murder Mr. Johnson or anyone else. It is not proof of rebuttal of acting in self-defence. It is not proof that the accused had murdered someone, as in Abbey. However, it is highly prejudicial. The prejudicial effect of this “NMIF” tattoo and its meaning outweighs any probative value and neither is admissible at this trial.

[49] The Crown called at the preliminary hearing Lloyd Eason. Mr. Eason has a lengthy criminal record for dishonesty. He is a three time parole violator and has multiple convictions for robbery and has done penitentiary time for armed robbery and firearm offences. According to Mr. Eason, Chad Davidson, at the Sopinka court house custody area, told Mr. Eason that he “put two in one guy or something like that.” Both Chad Davidson and Mr. Eason were in the visiting rooms. When Mr. Eason was asked by the Crown: “‘I put two in that guy’, do you know what he was referring to”, Mr. Eason testified, “I couldn’t tell you really”. When asked where the incident took place regarding putting two in that guy, Mr. Eason testified that he did not really know – “like Tim Horton’s or something like that”, and indicated it occurred in the city of Hamilton. In cross-examination, Mr. Eason testified that ten years ago, Chad Davidson and him had a fight over a hat. Regarding the “put two in that guy” statement, Mr. Davidson and Mr. Eason were in the interview rooms that are often used by counsel. Mr. Eason was waiting outside the room and Mr. Davidson said to him as he was standing at the door, “I put two in that guy”. When asked in cross-examination about the number two, Mr. Eason testified that Chad said, “Yeah, I put two. I did it before I’ll do it again”. Mr. Eason further testified, “because you see he wants to kill me too about something else”. Mr. Eason was asked, “and you had no idea what incident Chad Davidson had been talking about?” and Mr. Eason replied, “I don’t know why I’m here today”. Mr. Eason testified that Chad Davidson never mentioned the name Tyler Johnson and the rest of it was just “shit” that Mr. Eason heard.

[50] Boiling it down to its basics, Mr. Eason’s evidence is that Chad Davidson told Mr. Eason he put two in a guy but does not know what incident Chad Davidson was talking about, or who he was talking about, or where it happened, except it was in Hamilton – “Tim Horton’s or something like that”. Plus, Mr. Eason volunteered that Mr. Davidson wants to kill him too without any details as to why.

[51] Justice Wein in R. v. Polimac, [2006] O.J. No. 4761 (S.C.J.) held at paras. 7 and 8:

7 Just because some parts of a recorded statement are inaudible does not automatically require exclusion. The question is whether the essential integrity of the statement is accurately recorded: see for example R. v. Richardson, [1995] N.B.J. No. 614 (Prov. Ct.); R. v. Mooring, [1999] B.C.J. No. 1557 (C.A.).

8 The meaning of the utterances of an accused person must be considered in context, and must not be left to speculation. In cases where only part of a conversation has been overheard, issues of admissibility must be assessed in the context of the proposed relevance. Where a partial statement is introduced as an admission by the accused, the full context must be clear, otherwise the meaning remains highly speculative. In cases such as R. v. Hunter, 2001 ONCA 5637, [2001] O.J. No. 2388, 54 O.R. (3d) 695 (C.A.) and R. v. Ferris, 1994 SCC 31, [1994] 3 S.C.R. 756, utterances by an accused person that were overheard were held to be inadmissible since the meaning of the utterance, without context, was highly speculative and the prejudicial effect obviously outweighed the tenuous probative value.

[52] In my opinion there is no context to this so called admission by Mr. Davidson to Mr. Eason. The allegation here is that Mr. Johnson was killed by a gunshot wound to his chest with a small caliber bullet. There was no “two” in a guy. Further, the jury must speculate that the guy referred to is Mr. Johnson. Mr. Eason provides no detail as to who the guy is, what incident is being talked about, and really doesn’t know where it happened other than in Hamilton – “Tim Horton’s or something like that”. And that could be because of the “shit” he has heard. Given the lack of details, the hearsay involved and Mr. Eason’s lengthy criminal record for dishonesty, the probative value of this evidence is virtually nil. Further, Mr. Eason introduces the prospect of Mr. Davidson wanting to kill him too without any details being provided. This raises the spectre of both moral and reasoning prejudice referred to in Handy at paras. 139 – 147.

[53] Accordingly, in my opinion, the prejudicial effect of Mr. Eason’s evidence regarding the in custody conversations with Mr. Davidson outweighs the negligible probative value of this evidence, and it is not admissible at trial.

[54] The Crown seeks to adduce Mr. Chad Davidson’s conviction for armed robbery as evidence of Mr. Davidson’s ability to have access to firearms. No details of the armed robbery have been provided. The indictment was filed as Exhibit DC2 and it indicates that on December 18th of 2007, Chad Davidson committed an armed robbery with an offensive weapon or imitation thereof. This charge arises almost 6 years before the murder of Mr. Johnson. There is virtually no probative value that this charge and subsequent conviction can lead, as the Crown suggests, to an inference that Mr. Davidson had access to firearms or an ability to do so in 2013. The prejudicial effect of the evidence of this conviction is significant and it is obvious that the prejudicial effect of the evidence of this conviction far outweighs any probative value it may have. Accordingly, the evidence of the charge and conviction of Mr. Davidson of armed robbery is not admissible as evidence at this trial.

[55] Ashley Davidson will give evidence that she met Chad Davidson in jail while he was serving the sentence for armed robbery, and that there was a homecoming party. My reading of Krystal Davidson’s evidence is that she did not approve of this relationship and it caused strains on her relationship with her sister and family. As indicated earlier, evidence of Mr. Davidson selling stolen property, his buying drugs, and being arrested on a breach of probation charge, will be allowed into evidence as it is relevant to a variety of issues. The defence argues that Ashley Davidson meeting Chad Davidson while he was in custody is not relevant to any issues. The Crown argues that it is part of the narrative of events. I am mindful of the admonition in Skeete at para. 15 that a criminal trial is a search for truth and the jury ought to be provided with information that will allow them to put the central facts into context including the nature of relationships that wold not be otherwise obvious. Since the jury will inevitably hear some of Chad Davidson’s criminal background as outlined, the prejudicial effect of their hearing that Chad Davidson met Ashley Davidson while in jail is minimal and is outweighed by the probative value of this evidence forming the narrative of the relationships that will be referred to at trial. However, evidence of the armed robbery is very prejudicial and Ashley Dore can be instructed not to mention the reason for Chad Davidson being in jail when she met him (i.e. he was in jail for the armed robbery conviction).

[56] The Crown argues that records of the accused Chad Davidson and Joshua Barreira being in the Barton Street jail at the same time in December of 2008 should be admitted into evidence as evidence of their ongoing relationship. For reasons already provided, these records have far more prejudicial value than marginal probative value and these records are not admissible at this trial.

Conclusion Regarding Issue #2 – Crown Application Allowing the Admission of Prior Discreditable Conduct Against the Accused Chad Davidson

[57] The Crown will be permitted to tender the following items of evidence at the trial: (1) evidence showing the relationships between the accused including being involved in a criminal lifestyle with each other, including Chad Davidson selling stolen property to the Barreiras, Joshua Barreira selling drugs to Chad Davidson, and Chad Davidson telling Marta Leite many times that he would do anything for Joshua Barreira; (2) phone conversations between Chad Davidson and Marta Leite regarding Chad’s admissions regarding the murder and the pen package evidence given by Marta Leite arising out of those conversations; (3) the three photos taken of Chad Davidson by Special Constable Bowman on October 24, 2013 as depicted at Tab 4 of the Crown application record; (4) the middle photo at Tab 5 of the Crown application record of Chad Davidson wearing a muscle shirt and red baseball cap; (5) Ashley Davidson’s evidence that she met Chad Davidson in jail with no mention of the reason why and no reference to the armed robbery conviction.

[58] The Crown will not be permitted to tender the following items of evidence at this trial: (1) any details regarding the home invasion of the Barreira home on March 13, 2007; (2) the two letters dated June 7, 2014 sent by Marta Leite to Chad Davidson; (3) the first and third photos at Tab 5 of the Crown application record depicting two tattoos of handguns – photo 1 and the tattoo “NMIF” – photo 3, and the meaning of “NMIF”; (4) Mr. Eason’s evidence that Chad Davidson told him in the custody area at the Sopinka court house that Chad had “put two in that guy”; (5) Chad Davidson’s charge and subsequent conviction of armed robbery, (6) the jail records of December of 2008 indicating that Chad Davidson and Joshua Barreira were in that facility at the same time.

Order

[59] The Crown will be permitted to tender into evidence at this trial the items detailed at paragraphs 30 and 57 of these reasons.

[60] The Crown will not be permitted to tender into evidence at this trial the items detailed at paragraphs 31 and 58 of these reasons.

Skarica J.

Released: February 16, 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 16, 2017