Court File and Parties
COURT FILE NO.: CR-15-4953 DATE: 2017-03-09
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 March 8, 2017
REASONS FOR MID-TRIAL RULING – DEFENCE APPLICATION FOR REMEDIES TO AMELIORATE PROCEDURAL UNFAIRNESS FLOWING FROM ORDER OF NAMES ON THE INDICTMENT
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, accompanied by two other individuals, approaching the victim Tyler Johnson with a gun in his hand, and then shooting Mr. Johnson, who ultimately died from his injuries. The Crown alleges that Chad Davidson (Chad) is the shooter. Brandon Barreira (Brandon) and Joshua Barreira (Joshua) have admitted that they are the other two individuals on the video in the company of Chad. Louis Rebelo (Louis) has admitted to being in the proximate area of the victim when the victim was shot as shown on one of the videos. Chad has not made any admissions regarding the videos. Joshua, in two statements, alleges that Chad was the shooter and that shortly afterward, Chad fired two shots at Joshua. The Crown has called two witnesses who, in cross-examination by Joshua’s counsel, (Joshua is second on the indictment) testified that there may have been multiple shots over a gap of time. However, in the following cross-examination by Chad’s counsel (Chad is third on the indictment), those witnesses retreated significantly from that position. A further witness testified that he saw Joshua Barreira distraught some time later that night but again, after Chad’s cross-examination, indicated he was so intoxicated that the whole night was a blur and he could not be sure he saw Joshua that night at all.
ISSUES
[2] Counsel for Joshua seeks a combination of orders including orders declaring:
a) The applicant will have the right to re-cross-examine or re-examine witnesses after cross-examination conducted on behalf of the co-accused Chad.
b) The order of cross-examination on behalf of Joshua and Chad will alternate from witness and witness.
c) Chad will be called upon to lead evidence before Joshua is called upon to lead evidence.
d) Chad will be called upon to address the jury before Joshua is called upon to do so, and,
e) Such other orders that the Court feels is appropriate to address the alleged procedural unfairness identified by Joshua.
FACTS
[3] Joshua, Chad and the two other accused are charged with the first degree murder of Tyler Johnson on November 30, 2013.
[4] As indicated in a previous ruling, my review of the materials filed on this motion and other motions to be decided before me all indicate that the Crown will adduce a videotape that allegedly shows the victim Mr. Johnson being shot at close range by the accused Chad.
[5] 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.
[6] One of the accused, Joshua, has given three statements, and 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 or the other two accused.
[7] In the second and third statements by Joshua, he indicates that after Chad shot the victim once, Chad got in Joshua’s car and shortly after, Chad fired two shots at Joshua with at least one shot hitting the Vida La Pita Wall behind them.
[8] No bullet casings were found at the scene. The only forensic evidence is that one .22 calibre bullet was found in the body of the victim, Mr. Johnston. The wall of the Vida La Pita is very rough and it is impossible to tell if any bullet ever - struck the wall or not.
[9] Accordingly, a live issue at this trial is whether there was one shot fired by the shooter or whether there was one shot followed by a gap in time followed by two further shots.
SCOTT LAPOINTE
[10] The Crown called Scott LaPointe (Scott) who testified he was walking near the scene of the shooting when he heard a gunshot. He testified that he “probably” heard a couple. There could have been 2-3-4 shots.
[11] In cross-examination by counsel for Joshua (who is second on the indictment), Scott indicated he could not remember but there probably was more than one shot and there may have been as many as four shots.
[12] In the following cross-examination by counsel for Chad (who is third on the indictment), Scott testified that he did not know how many shots were fired. After the first shot, it was all a blur. He heard the first shot and was scared and “booked it”. After the first shot, he wanted to get out of there.
LINDSAY BRUDER-GRANT
[13] Lindsay Bruder-Grant (Lindsay) testified in chief that she was near the scene of the shooting and she heard “pop-pop-pop.” There were 5-10 seconds between the first and second pop.
[14] In cross-examination by counsel for Joshua, Lindsay testified that she had never heard gunshots before. It was possible that she may have heard another pop before the three pops, but she testified that is not what happened. It was hard for her to say about that prior pop and she did not know. She knows she heard three pops. She saw what appears to be Joshua’s car leave the scene at a high rate of speed shortly after the pops.
[15] In the following cross-examination by counsel for Chad, she testified that she heard 3 pops all in a row. She estimated that the total time for the three pops was 5 seconds but intimated in cross-examination that the total time for all three pops could have been 2-3 seconds. Accordingly, her evidence leads to the fair inference there was no gap in time at all between these pops.
JASON FERNANDES
[16] Jason Fernandes (Jason) in chief told the Crown that he saw Joshua at Stowaways Bar in the early morning on the night of the shooting. Joshua came in the back door, did not talk to anyone, and left after a few minutes.
[17] In cross-examination by counsel for Joshua, Jason agreed that when he saw Joshua come in the back door, Joshua was holding his head with both hands and was upset and flustered. Joshua looked helpless and was unhappy.
[18] In the following cross-examination by counsel for Chad, Jason testified that he was pretty wasted that night and was doing powder cocaine. Jason concluded that he could not even be sure if he saw Joshua at all that night. In the following cross-examination by counsel for Louis Rebelo, Jason could not remember how long he was at the bar and it could be anywhere up to 3 days given his sobriety at that time of his life. Further, Jason could not remember how many people were in the patio of the bar. It could have been 2 or 12 or 100.
THE POSITION OF THE APPLICANT JOSHUA BARREIRA
[19] Counsel for Joshua takes the position that the subsequent cross-examinations by counsel for Chad developed points to Chad’s advantage and to Joshua’s disadvantage. It appears that Joshua’s position is that there were multiple shots fired and Chad’s position is that only one shot was fired. Counsel for Joshua felt the cross-examination of Jason was gratuitous and he could not have foreseen Chad’s counsel cross-examining that witness in a way that was to Joshua’s disadvantage without any apparent material benefit to Chad.
[20] Further, Joshua takes the position that he will continue at every stage of the trial to suffer marked procedural disadvantages due to his being listed on the indictment before Chad.
THE POSITION OF THE RESPONDENT CHAD DAVIDSON
[21] Counsel for Chad takes the position that Joshua has failed to demonstrate that any disadvantage may beset Joshua by following the traditional and statutorily sanctioned procedure regarding cross-examination and jury addresses being done according to the order of names on the indictment. The quantity of evidence regarding Joshua is irrelevant. There is no cutthroat defence, but instead the parties differ on the number of shots fired. The indictment has been before the court for 19 months and there was no severance application. There have been 17 days of trial and the jury has become accustomed to the procedure of cross-examinations being done pursuant to the order of names on the indictment. Further, counsel has prepared for trial and strategized based on the current order of names on the indictment.
THE POSTIONS OF BRANDON BARREIRA AND LOUIS REBELO
[22] Counsel for Brandon Barreira opposes re-cross-examinations. Her preparation is based on her cross-examining first and has a strategy based on going first. She takes no position regarding the positioning of Joshua and Chad on the indictment. Counsel for Louis Rebelo takes a similar position and his preparation is based on his cross-examining last.
THE POSITION OF THE CROWN
[23] The Crown is opposed to Joshua’s application. The listing of the accused was done according to alphabetical order and there was no strategy behind it. The Crown recognizes that the court has jurisdiction to govern the trial process but this case is not a case requiring the exercise of that discretion.
LAW
A. THE RIGHT TO RE-CROSS-EXAMINATION
[24] Where re-examination makes certain new evidence relevant for which there was no prior need or opportunity to cross-examine, re-cross-examination is proper. Otherwise, there is generally no need for re-cross-examination. The permission to re-cross-examine is in the discretion of the trial judge. See R. v. M.D.H., [1993] B.C.J. No. 3403 (C.A.) at paras. 19-24, R. v. Moore, [1984] O.J. No. 134 (C.A.) at page 22.
[25] Where nothing new emerges from cross-examination, which has not already been raised during the case for the Crown and the case for the defence, or which could not reasonably have been anticipated by the defence, there is no right to re-cross-examination. Where some new issue or matter has been raised, then it may be appropriate to allow re-cross-examination limited to the new matter. See R. v. Rochester et al., [1984] O.J. No. 3462 (Ont. Co. Ct.) per Borins J. at paras. 7-10.
[26] At the pre-trial motions, it was pointed out to me that the number of shots fired at the scene was a live issue at trial. See R. v. Barreira et al., 2017 ONSC 1179 at paras. 43-45. Accordingly, evidence of multiple shots and the cross-examination thereon by Chad was not a new matter and was entirely foreseeable by counsel for Joshua. No right of re-cross-examination could arise.
[27] Regarding the evidence of Jason Fernandes, his evidence in chief was that he spent the evening drinking and consuming cocaine on the night of the murder and could not remember much of anything. Accordingly, Jason testifying in the cross-examination by Chad’s counsel that he was pretty wasted and could not be sure if he saw Joshua that night was entirely foreseeable. Further, counsel for Louis Rebelo also cross-examined Jason and got the response that Jason had difficulty remembering how long he was at the bar or how many people were out at the patio. It could have been 2 or 12 or 100. Accordingly, both counsel for Chad and Louis severely damaged Jason’s credibility and re-cross-examination, if allowed, would have been on a witness whose credibility was severely damaged and whose cross-examinations were entirely predictable. Accordingly, I would not exercise my discretion to allow re-cross-examination in these circumstances.
[28] I agree with counsel for Brandon Barreira that a general permission to allow re-cross-examination would provide for endless cross-examinations that would complicate the trial for no material benefit.
CONCLUSION REGARDING RE-CROSS-EXAMINATIONS
[29] Accordingly, re-cross-examinations will not be allowed by any counsel except for the rare occasion where new matters are introduced for the first time in re-examination and/or new matters are raised that could not be reasonably anticipated by the defence and were not raised at a prior time during the case for the Crown and the case for the defence.
B. – E. - TRIAL JUDGE’S DISCRETION TO MANAGE TRIAL – ORDER OF CROSS-EXAMINATIONS, ORDER OF CALLING EVIDENCE, ORDER OF JURY ADDRESSES, GENERAL ISSUES OF PROCEDURAL UNFAIRNESS
[30] The impact of the manner in which names are ordered on the indictment is felt throughout the trial. It determines the order in which peremptory challenges will be exercised, the order of questioning witnesses, the order in which each accused will be called upon to call a defence, if any, and the order in which closing addresses are presented to the jury. The content of the indictment, including the names of the accused, normally falls within the sphere of prosecutorial discretion. The court may only interfere with prosecutorial discretion where an abuse of process or the existence of an oblique motive is demonstrated. See R. v. Sandham et al., (2009), 248 C.C.C. (3d) 392, (Ont. S.C.J.) 2009 ONSC 59685 at paras. 5, 10, 16.
[31] The conventional procedure is that co-accused proceed in the order they appear in the indictment. See R. v. Allen and Allen, 2010 YKSC 28 at paras. 12-14; R. v. Phung, [2006] O.J. No. 5660 (S.C.J.) at para. 30. That convention has been followed at this trial thus far.
[32] However, as indicated in Sandham, there are further considerations. Justice Heeney in Sandham held at para. 23:
23 While the order of the names of the indictment is within the prosecutorial discretion of the Crown, the court retains the inherent power to control its own process and to remedy procedural unfairness. This power exists both at common law, and has been enshrined in s. 11(d) of the Charter: see R. v. Rose (1998), 129 C.C.C. (3d) 449 (S.C.C.) at para. 130. Thus, notwithstanding the sequence of the names on the indictment, the court retains the power to relieve against the consequences that flow therefrom, if necessary to relieve against procedural unfairness. Accordingly, the court could direct that the accused be called upon in a different order to question witnesses, call their defence, address the jury, and so on.
[33] In R. v. Rose, [1998] 3 S.C.R. 262, the Supreme Court of Canada held at para. 130:
130 The obligation of a trial judge to ensure that an accused's right to a fair trial is preserved has been enshrined in s. 11(d) of the Charter. However, the inherent jurisdiction of superior court judges to remedy procedural unfairness during the trial has always existed at common law. In R. v. Osborn, [1969] 1 O.R. 152, the Ontario Court of Appeal correctly observed that courts have from the earliest times invoked an inherent jurisdiction to prevent the abuse of trial process resulting from oppressive or vexatious proceedings. In Selvey v. Director of Public Prosecutions, [1968] 2 All E.R. 497, at p. 520, Lord Guest referred to the overriding duty of the trial judge to ensure that a trial is fair. He wrote that this duty: "springs from the inherent power of the judge to control the trial before him and to see that justice is done in fairness to the accused".
[34] In R. v. Suzack, [2000] O.J. No. 100 (C.A.), Justice Doherty held that the Charter does not demand exact parity at every procedural step in the trial process. The test is not if one can fashion a fairer process, but rather is the process so lacking in balance as to amount to a departure from the standard of fundamental fairness to the accused. Justice Doherty indicated at paras. 61-63:
61 The appellant cannot claim any unfairness as between himself and the Crown, but only that s. 635(2) gave his co-accused a tactical advantage over him. I accept that a tactical advantage may reach constitutional proportions. I also accept that a law which gives one accused an advantage over a co-accused could infringe the constitutional rights of the disadvantaged co-accused, although I would think that laws which favour one accused over another are constitutionally less suspect than a law which favours the Crown over the accused.
62 Tactical disadvantages cannot, however, be equated with unfairness in the constitutional sense. Tactical advantages and disadvantages are inherent in the adversarial process. They come and go with the ebb and flow of the process. Where there is more than one accused on trial, the question of which accused will go first, last or somewhere in between will arise repeatedly in the course of the trial (e.g. who will cross-examine Crown witnesses first, who will call a defence first, who will go to the jury first). I do not understand the Charter to demand exact parity at each and every procedural step of the criminal trial process. Indeed, in R. v. Bain, supra, at p. 511, Cory J. acknowledged that the Charter did not even require parity as between an accused and the Crown in the selection of the jury.
63 A tactical disadvantage in the selection of the jury becomes a constitutional infringement if, when viewed in the context of the entire process, it skews the fairness or the appearance of the fairness of the proceeding so that a reasonable, well-informed person would conclude that the process was so lacking in balance as to be fundamentally unfair: R. v. Bain, supra, at p. 511. The test is not - can one fashion a fairer process, but rather is the process put in place by Parliament so lacking in balance as to amount to a departure from the standard of fundamental fairness to the accused? It is important in addressing this question to place the alleged disadvantage in the context of the entire trial process. The Charter is not a criminal procedure statute and should not be used to micro manage each and every facet of the process. The Charter's approach is broader and looks to the fundamental fairness of the process as a whole.
ANALYSIS
[35] The order of the names on the indictment gives rise to tactical advantages and disadvantages, which are inherent in the adversarial process. As indicated by Justice Doherty in Suzack, tactical disadvantages are not equal to unfairness in the constitutional sense. What I need to look for is unfairness whereby a reasonable, well-informed person would conclude that the process was so lacking in balance as to be fundamentally unfair.
[36] At this point in the trial, the Crown has called approximately 20 witnesses. Leaving aside the three witnesses referred to earlier, (Scott LaPointe, Lindsay Bruder-Grant, Jason Fernandes), in my opinion, with two exceptions, the cross-examinations by one counsel have not impacted the interests of any of the other co-accused.
[37] The exceptions refer to the evidence of Oceana Sharp and Detective Sergeant Paul Staats. Oceana Sharp revealed in the cross-examination of Joshua’s counsel that Chad was on a methadone program. Detective Sergeant Paul Staats revealed in the cross-examination of Joshua’s counsel that upon the arrest of Chad, Detective Hamilton, at the police station, retrieved a pipe for smoking cocaine from Chad’s pocket. The order of cross-examinations, flowing from the names on the indictment, regarding these witnesses, had no impact at all on the fairness of the proceedings or in inhibiting counsel for Joshua eliciting evidence to his advantage at the potential expense of Chad.
[38] When I asked Mr. Zaduk (counsel for Joshua) if there were any more “at the scene” witnesses who were going to testify about multiple gun shots, Mr. Zaduk could not confirm that any more were coming. Mr. Zaduk, in candour, indicated that it was unpredictable as to what might happen. Mr. Zaduk indicated that he was not yet settled on what an appropriate remedy would be.
[39] The suggestion by Joshua that changing the order of cross-examinations so that Joshua and Chad alternate from witness to witness has no demonstrated value at all. I was provided with no details of what the numerous witnesses are going to say or how the alternating cross-examination proposal would improve or not improve any resulting unfairness concerns. An alternating witness schedule seems to me to be an arbitrary process that has no proven ameliorating effect.
[40] Counsel for Joshua argues that there is much more evidence against Joshua than against the other accused. The marriage evidence, disreputable conduct evidence and extensive criminal record concerns are all more or less applicable to Chad as well. The real major difference between Joshua and Chad is the fact that Joshua has made three different admissible statements. These statements are only admissible against Joshua, but in the second and third statements, Joshua implicates Chad as the shooter and exonerates the remaining accused as innocent bystanders in the wrong place at the wrong time. This statement is not admissible against Chad or any of the other accused.
[41] The proper remedy for a situation where the evidence is substantially stronger against one conspirator than the other, particularly where the prosecution is tendering in evidence a damaging statement made by one under circumstances which makes it inadmissible against the other, is to direct separate trials of each accused. See R. v. Guimond, [1979] 1 S.C.R, 960 at page 15QL.
[42] This indictment has been outstanding for 19 months and no application for severance was made by any accused. It appears to me that a severance application would be unsuccessful in any event as the essential factual nexus of evidence against all four accused are the videotapes, which allegedly capture Chad shooting the victim with the other three assisting in some capacity or other. See R. v. Last, 2009 SCC 45, [2009] S.C.J. No. 45 at para. 18.
[43] All of the accused, other than Joshua, have indicated that they have prepared and strategized their defences based on the order of the accused on the indictment. The jury selection process proceeded on the basis of the alphabetical listing of the accused. The trial proceeded on that basis and it was not until the third day of trial evidence that counsel became concerned about the order of cross-examinations.
[44] There is no suggestion that the Crown had any oblique motive or strategy in listing the accused in alphabetical order on the indictment.
[45] This application is being brought after the trial has begun. There was, what appears to me, to have been a lengthy preliminary hearing before Justice Agro – 20 days of hearings from December 1, 2014 to May 4, 2015. There were pre-trial motions brought in June of 2016 and again in February of 2017. No application regarding concerns of trial unfairness were brought at any time until after the trial commenced.
[46] In my opinion, boiling it down, Mr. White, for Chad, conducted very effective cross-examinations of the witnesses Scott LaPointe and Lindsay Bruder-Grant regarding their evidence about multiple shots. It seems to me that the order of cross-examinations did not contribute significantly to the effectiveness of Mr. White’s cross-examinations of these witnesses. However, the effectiveness of those cross-examinations understandably caused concern for counsel for Joshua and counsel initially wanted to re-cross-examine in the hope of salvaging the situation but this request was denied and this application was commenced thereafter.
[47] It should be pointed as well that Jason Fernandes was cross-examined effectively by Louis Rebelo’s counsel and the result was that Jason could not remember how long he was at the bar or how many people were there. Accordingly, the culmination of the cross-examinations by counsel for Chad and Louis resulted in Jason being rendered a very unreliable witness and I find that the order of cross-examinations contributed very little to that overall result.
[48] Effective cross-examinations may operate unfortunately for Joshua, but that is not the equivalent of prejudice. See Rochester at para. 11. Effective cross-examination on its own does not create prejudice. Otherwise why have a trial at all? Effective cross-examination may cause prejudice where it strays into forbidden territory. See for example, R. v. Figliola, [2011] ONCA 457 at para. 61. That is not the situation here.
[49] Counsel for Joshua has failed to establish that the current order of cross-examinations has or will result in any procedural unfairness that is so lacking in balance as to be fundamentally unfair.
[50] Regarding the order of calling defence witnesses and giving jury addresses, Joshua and Chad are tucked in between the other two accused. The current order of the names on the indictment gives rise to tactical advantages and disadvantages, which are inherent in the adversarial process. As in Suzack, the tactical advantage or disadvantage of whether Chad goes before or after Joshua cannot be measured at this time.
[51] In Rose, Cory J. concluded that there was no significant advantage in addressing the jury first or last. See Suzack at para. 69. Justice Heeney in Sandham indicated that there is even less of an advantage or disadvantage as between co-accused in addressing the jury before or after others. Justice Heeney concluded the same could be said about the order in which the accused are to be called upon to present a defence. See Sandham at para. 30. I agree with these comments.
[52] Counsel for Joshua has failed to establish that the current order of calling defence evidence and addressing the jury has or will result in any procedural unfairness that is so lacking in balance as to be fundamentally unfair.
B.– E. – CONCLUSION - TRIAL JUDGE’S DISCRETION TO MANAGE TRIAL – ORDER OF CROSS-EXAMINATIONS, ORDER OF CALLING EVIDENCE, ORDER OF JURY ADDRESSES, GENERAL ISSUES OF PROCEDURAL UNFAIRNESS
[53] Counsel for Joshua has failed to satisfy me that the current order of the names on the indictment, and the adherence to the usual convention of proceeding on the basis of that order, will or has led to an unfairness where the trial process is so lacking in balance as to be fundamentally unfair.
ORDER
[54] Joshua Barreira’s application, for remedies to ameliorate procedural unfairness flowing from the order of names on the indictment, is dismissed.
[55] The trial will continue to proceed according to the established rule that re-cross-examinations will not be permitted, save where new evidence has been raised in re-examination or new evidence has been raised that was not already raised in the case for the Crown and the case for the defence, or that could not be reasonably anticipated by the defence.
[56] The trial will continue to proceed according to the established convention that cross-examinations, calling of defence evidence and defence addresses to the jury will be done according to the order of the names on the indictment.
Skarica J.