CITATION: R. v. Barreira et al., 2017 ONSC 2540

COURT FILE NO.: CR-15-4953

DATE: 2017-04-24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Ms. Malkovich and Ms. Gzik, Crown Counsel for Her Majesty the Queen

• and -

BRANDON BARREIRA, JOSHUA BARREIRA, CHAD DAVIDSON and LOUIS REBELO

Ms. Goldlist, Defence Counsel for Brandon Barreira

Mr. Zaduk and Ms. Page, Defence Counsel for Joshua Barreira

Mr. White and Ms. Audet, Defence Counsel for Chad Davidson

Mr. Dorsz, Defence Counsel for Louis Rebelo

HEARD: at Hamilton April 19, 2017

REASONS FOR RULING – DEFENCE APPLICATION BY LOUIS REBELO FOR DIRECTED VERDICT

The Honourable Mr. Justice Skarica

INTRODUCTION

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

[2] After the Crown closed its case, Louis brought a motion for directed verdict for first degree murder and all included counts.

ISSUE

[3] Should the accused’s application for a directed verdict be granted?

BACKGROUND FACTS

[4] Louis Rebelo and three other accused are charged with the first degree murder of Tyler Johnson on November 30, 2013.

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

[6] The case against Louis is mainly circumstantial. It consists of Louis’ presence at the scene as depicted by surveillance videos, association with the other accused, witnesses’ description of Louis’ conduct just prior and just after the shooting, phone records and post-offence conduct including a statement given to the police.

1. THE SURVEILLANCE VIDEOS

[7] Exhibit 66 is a compilation of a variety of surveillance videos from Hess Village and a number of businesses in downtown Hamilton surrounding the shooting scene. The videos depict the activities of the various accused and the victim before and after the shooting in the early morning hours of November 30, 2013.

[8] At 2:59 a.m., Joshua, Robert Ferreira (Ferreira) and Louis arrive at Tim Hortons in a dark coloured Jaguar. Brandon and two witnesses – James Kendall (Kendall) and Marcelo Sousa (Sousa) exit the Tim Hortons and get in the back seat of the Jaguar. Joshua exits the driver’s set at 3:03 a.m. and Louis enters Tim Hortons at 3:05 a.m.

[9] At 3:04 a.m., a Jeep arrives at the Tim Hortons and parks directly beside the Jaguar. The outside Tim Hortons video is blurry but there is a glimpse of a man with a red hoodie getting out of the Jeep and getting into the passenger side of the Jaguar. Ashley Dore-Davidson (Ashley) testified that Chad got out of her Jeep, talked to Joshua and then Chad got into the passenger side of the Jaguar. Chad was wearing a red hoodie at that time.

[10] At 3:07 a.m. Louis gets into the passenger side of the Jeep and Ferreira gets into the back seat. Ashley testified that she had met Louis twice in the fall of 2013 and knew him only as Louis. She did not know where Louis lived, and in her police statement she referred to Louis as “buddy”. She never gave Louis a ride before, and Louis was not on any of her telephone contacts list. Chad vaguely knows Louis.

[11] At 3:07 a.m., the vehicles leave the Tim Hortons lot in virtual tandem, both going west on King Street. The Jaguar is being driven by Joshua with Chad in the front passenger seat, and Brandon, Kendall and Sousa in the back seat. The Jeep follows out behind them. The Jeep is being driven by Ashley with Louis in the front passenger seat and Ferreira in the back seat.

[12] At 3:08 a.m., Johnson and Ricky Moore (Ricky) walk northbound on Hess Street onto King Street. Shortly after Johnson and Moore turn east onto King Street, the Jaguar is observed driving past the intersection of King and Hess and is followed a few seconds later by two Jeeps, both similar to Ashley’s vehicle.

[13] Two figures can be seen walking on King Street on the fuzzy outside Tim Hortons video and at 3:09 a.m. Johnson and Ricky enter the Vida La Pita restaurant, which is next to the Tim Hortons parking lot. Mallory Turco, Ricky’s girlfriend, is parked against the wall of the Vida La Pita, near the back of building by Staybridge Suites Hotel. Turco phones Ricky to tell him she is waiting in the Tim Hortons parking lot after she sees Ricky and Johnson walk past her and go into the Vida La Pita.

[14] The Jaguar returns to the Tim Hortons parking lot and at 3:09 a.m. Joshua parks the Jaguar facing the Vida La Pita wall. Sousa and Kendall remain in the vehicle.

[15] At 3:09 a.m., Brandon, Joshua and Chad walk eastbound from the corner of Vida La Pita with their hoods up over their heads. The Barreiras look into the Vida La Pita as they pass by. The three men congregate around the corner at the east side of the Big Bee, which is a store attached to the Vida La Pita building. At one point, Brandon is seen pointing towards the rear of the Big Bee as a vehicle pulls in from Caroline Street.

[16] Ashley testified that she overheard Louis say “back” while he was on the phone, and Louis told her to go back to the Tim Hortons plaza. She drives back to the Vida La Pita building and parks her car on the Tim Hortons parking lot, facing the west side of the Vida La Pita building, beside the Jaguar that is already parked there. She sees no one in the Jaguar. The Exhibit 66 video shows a car parked at the location described by Ashley, and she testified that you can see her headlights on in the video at the 3:10:18 a.m. mark of the Vida La Pita video. Ashley confirmed that is her Jeep. Ashley testified she kept the Jeep’s motor running. She is parked at a spot where she can see what is going on at the front of the Vida La Pita, and as well, her car is visible to persons on the sidewalk in front of the Vida La Pita and Big Bee.

[17] Once the Jeep is parked facing the Vida La Pita, Brandon runs westbound across the storefronts to the area where the Jeep is stopped. Ten seconds later, Brandon runs back across the storefronts and runs eastbound at 3:10:24 a.m. His hood is now down.

[18] At 3:10:35 a.m. Johnson and Moore exit Vida La Pita and turn left towards the Tim Hortons parking lot where the Jeep is parked. Ashely testified that Louis says “there’s my buddy” and gets out of the Jeep. At 3:10:41 a.m., Johnson is seen to be stopped by Louis and they appear to be engaged. At 3:10:43 a.m. the Barreiras and Chad come out from behind the corner of the Big Bee and approach Johnson. Brandon appears to be directing Chad and Joshua with hand movements. At 3:10:53 a.m., as the parties approach Johnson, Chad appears to be holding a handgun in his right hand. Johnson is speaking to Louis at that time and Johnson’s attention appears to be away from the parties approaching him from behind.

[19] At 3:10:57 a.m. Brandon runs behind Johnson. Johnson takes a swing at Chad but appears to miss. Chad jumps back. Just before Johnson is shot, Ricky hears someone say “T” (the nickname for Johnson) and immediately hears “pack, pack, pack”. When that happens, Chad is close to Johnson, Joshua is next to Chad and Louis is next to Johnson. There appears to be no reaction by Louis at the time of the shooting.

[20] Ricky runs away toward King Street. A taxi driver, Tariq Ahmad, who is parked at the Vida La Pita parking lot within several feet from the shooting hears a click and sees a young man grabbing his jacket and running to Tim Hortons. Mr Ahmad pulls out at 3:11:13 a.m. on the Vida La Pita video. Johnson can be seen on the Tim Hortons video run to the vestibule doors of the Tim Hortons where he collapses and dies. Mallory Turco sees this and leaves the area.

[21] At around 3:11:07 a.m. a blurry vehicle is seen to leave from the Tim Hortons parking lot from the area where Ashley was parked. Ashley testified that Louis got back in her vehicle in a panic and she saw bodies going in different directions and she left within seconds. According to Ashley, Louis said, “Let’s go, I don’t believe what just happened.”

[22] Ashley pulls out and drives westbound on King Street and drives westbound and lets Louis and Ferreira out at James Street and never sees Louis again.

[23] Joshua can be seen on the videos walking from the rear of the Big Bee and Vida La Pita plaza and walking westbound on King Street to Hess Street where he takes a cab. The cab driver describes the man who appears to be Joshua as calm and normal.

[24] The Jaguar can be seen on the Exhibit 66 video to leave almost immediately after Ashley’s Jeep leaves the area.

2. THE PHONE RECORDS

[25] Jessica Riley (Jessica), the ex-spouse of Louis, has a cell phone with the number 289-921-7012 (7012). Jessica and Louis have a son, Manuel. On November 30, 2013, she was at the Hush Bar and saw Brandon there. See Exhibit 7 photos. She exchanged numbers with Brandon. She was at the Hush bar from midnight until about 2 a.m. On her way out at 2 a.m., she saw Ricky and Justin Moore and Johnson coming into the Hush Bar and she talked to them for a few minutes before leaving.

[26] Jessica testified that Louis had a work phone from A1 Asphalt and he could communicate on it by text. Andrew Saunders from A1 Asphalt testified that Louis was given a work phone in September of 2013 and the number assigned to it was 905-979-7564 (7564). Louis was given this phone and it was still assigned to him in November of 2013. The billing record from Bell Mobility was entered as Exhibit 49 and the call detail records have been filed as Exhibits 63, 63A and 63B.

[27] Exhibit 63A, which consists of a variety of excerpts of billing records of 7564, show numerous contact between 7564 (A1 phone assigned to Louis –“Rebelo phone”) and 7012 (Jessica Riley). There are numerous contacts between 7564 and 7012, from November 16 leading up to November 30, 2013. Further, after the shooting, from 9:36 a.m. until 5:13 p.m. on November 30, 2013, there were numerous contacts between these two numbers.

[28] There was evidence from witnesses at the trial that Louis was with Joshua and Ferreira at Stowaway’s Bar in Hamilton. Phone records indicate that at 2:46 a.m., Brandon places a call to Joshua. Joshua, Louis and Ferreira leave the bar and go to Tim Hortons arriving there at 2:59 a.m., as previously discussed regarding the video evidence.

[29] At 2:47 a.m., 2:48 a.m., 2:49 a.m., 2:52 a.m., 2:56 a.m. and 3:04 a.m., there are calls back and forth between Louis’ 7564 phone and phones ending in the numbers 2232 and 5515, which the evidence establishes were the phones and numbers being used by Ashley and Chad. Ashley testified that she and Chad had met Louis at Joshua’s house a few times. However, this is the first time there was any phone communication. Ashley testified that the phone rang that morning and Chad probably picked it up. As a result of these calls, Chad told Ashley he had to go out, and Ashley drove Chad to the Tim Hortons at Caroline and King in their Jeep. The Jeep can be seen on the video to arrive at 3:04 a.m.

[30] As indicated above, the 6 calls made between 2:47 a.m. and 3:04 a.m. caused the armed Chad to join Joshua and the other accused. The phone records show that as the 6 calls occur, the Davidson phone is moving from the Hamilton Mountain toward the location where the other accused are waiting at the Tim Hortons.

[31] As indicated earlier, the Jaguar and Jeep leave the Tim Hortons at 3:08 a.m. and proceed up King Street. Johnson and Ricky are seen to be walking down Hess and King at that time and the Jaguar drives by at around 3.08 a.m.

[32] The cell phone records indicate that at 3:08:32, 7564 (Rebelo phone) phones 289-244-8364 (a phone associated with Joshua). It is around that time that Ashley says that Louis is on the phone and tells her to go back to the Vida La Pita – Tim Hortons plaza. Ashley testified that she sees her car lights on the Vida La Pita video at the 3:10:18 mark of the Vida La Pita video.

[33] After the shooting, which occurred at around 3:11 a.m. on November 30, 2013, Chad and Brandon are in the Jaguar, Louis is in Ashley’s jeep and Joshua is walking back to Hess Street to get a cab. All of the four accused are leaving the scene in a different manner than when they arrived at the Tim Hortons plaza for the first time at around 3 a.m.

[34] At 3:17 a.m. there is a phone call from 7564 (Rebelo phone) to 8364 (Joshua), but it goes to voicemail. At 3:19 a.m. there is a call from 5515 (Davidson phone) to 7564 (Rebelo phone) that lasts for 46 seconds.

[35] At 3:21 a.m., 7564 (Rebelo phone) phones 905-525-2583 (Blue Line Taxi number, according to the phone records). Blue Line Taxi records indicate that at 3:22 a.m. they receive a call from 905-979-7564 (Rebelo phone), and the customer is listed as “louie”. The customer is to be picked up at the Bank of Montreal located at 275 James Street North, Hamilton.

[36] In the early morning hours of November 30, 2013, Brandon phones his mother, Marta Leite (Marta), to pick him up. Marta and her husband drive from Cambridge and pick Brandon up. When they pick Brandon up, Louis is a short distance away and they pick him up too. There had been communication between 7564 (Rebelo phone) and 8364 (Joshua phone) at 4:34 a.m. and 4:36 a.m. on November 30, 2013.

[37] At approximately 6:20 a.m., Joshua and Jennifer Dagenais (Jennifer) are involved in a single motor vehicle accident on the 403 in Hamilton, and the Jaguar is heavily damaged. Marta’s vehicle comes upon them and picks up Joshua and Jennifer. Joshua, Brandon and Louis all go back to Cambridge to 33 Princess Street.

[38] The 7564 (Rebelo phone) records indicate that on November 30, 2013 a number of calls are made from and to Cambridge by the 7564 number to 7012 number (Jessica Riley) at around 9:36 a.m. to 10:02 a.m. At 9:54 a.m. the 7564 (Rebelo phone) made a call from Cambridge to Patricia Picado’s phone at 905-389-2369, with billing address at 34 Jonathon Court, Hamilton (Patricia Picado is Louis’s sister, and 34 Jonathon Court is Louis’s address and place of arrest).

3. STATEMENT TO THE POLICE AND AFTER THE FACT CONDUCT

[39] Louis is the last of the four accused to be arrested. On February 20, 2014, Louis is arrested without incident at the residence of his sister, Patricia Picado, at 34 Jonathon Court, Hamilton.

[40] During his arrest interview, Louis repeatedly lies to the police about his involvement, his whereabouts at the time of the homicide and in the hours thereafter, his knowledge of the offence, his relationship with Johnson and his relationship with the co-accused. Later in his interview he does admit to being present when Johnson was shot, but denies knowing it was going to happen. Louis indicated that when he approached Johnson that night, Johnson was suspicious. Louis indicated that someone must have used his phone that night but does not name the person. Louis did not remember how he got his phone back. Louis did not call Chad. Louis could not remember a conversation that took place in Ashley’s car that they were going to swing back to the Tim Hortons and Vida La Pita plaza. Louis thought the plan was to go to a bar on James Street.

[41] Louis tells the police that after the murder, he destroyed his SIM card from his cell phone. (Exhibit 64 indicates that the SIM card for 905-979-7564 was changed on December 12, 2013, a day after Brandon’s arrest). There was gunpowder on his clothing, as Louis was shaking Johnson’s hand at the time of the shooting. Louis threw away this clothing, but he does not know the exact location. At no time does Louis divulge leaving the city with Joshua and Brandon within hours of the murder.

LAW

[42] The starting point regarding the law discussing directed verdicts is United States of America v. Shephard 1976 CanLII 8 (SCC), [1977] 2 S.C.R 1067 wherein Justice Ritchie indicated:

I agree that the duty imposed upon a "justice" under s. 475(1) is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is "sufficient" to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

[43] Where the Crown’s case consists in part or in whole of circumstantial evidence, the trial judge’s role is a little more complicated and requires a limited weighing of the evidence. In R v Arcuri, 2001 SCC 54, McLachlin C.J.C. outlined the trial judge’s role as follows at paras. 21-23, 30:

The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty": Shephard, supra, at p. 1080; see also R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154, at p. 160. Under this test, a preliminary inquiry judge must commit the accused to trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction": Shephard, at p. 1080.

22 The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802, at pp. 842-43; Monteleone, supra, at p. 161. The nature of the judge's task, however, varies according to the type of evidence that the Crown has advanced. Where the Crown's case is based entirely on direct evidence, the judge's task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true: see Watt's Manual of Criminal Evidence (1998), at par. 8.0 ("[d]irect evidence is evidence which, if believed, resolves a matter in issue"); McCormick on Evidence (5th ed. 1999), at p. 641; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at par. 2.74 (direct evidence is witness testimony as to "the precise fact which is the subject of the issue on trial"). It is for the jury to say whether and how far the evidence is to be believed: see Shephard, supra, at pp. 1086-87. Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge's task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.

23 The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt's Manual of Criminal Evidence, supra, at par. 9.01 (circumstantial evidence is "any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue"); McCormick on Evidence, supra, at pp. 641-42 ("[c]ircumstantial evidence ... may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion"). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

30 In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

[44] The “some evidence” rules and “no evidence” rules must relate to all the essential elements of the charge in question. See R v Skogman, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93 and R v Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 at para. 16.

[45] A preliminary inquiry judge (or a trial judge on a motion for directed verdict) is not permitted to assess credibility or reliability and that where more than one inference can be drawn from the evidence; only the inferences that favour the Crown are to be considered. See Sazant at para. 18.

[46] The directed verdict principles were recently summarized in R v Bains, 2015 ONCA 677, where Justice Watt held at paras. 158-160:

The Directed Verdict Standard

158 The standard a judge is to apply when asked to decide a directed verdict application at the conclusion of the case for the Crown is the same standard a justice applies in deciding whether to order committal at the conclusion of a preliminary inquiry under s. 548(1) of the Criminal Code. The issue to be determined is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilt: United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080; R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154, at p. 160; and R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21.

159 The standard on a directed verdict application does not differ according to whether the Crown's case consists of direct or circumstantial evidence. But the nature of the judge's task varies according to the nature of the evidence adduced. Where the evidence of any essential element is entirely circumstantial, the judge engages in limited weighing of the evidence to determine whether the evidence, considered as a whole, is reasonably capable of supporting the inference the Crown seeks to have the trier of fact draw about that essential element: Arcuri, at para. 23.

160 The limited weighing of circumstantial evidence on an application for a directed verdict does not entitle the judge to draw factual inferences, assess credibility or ask whether he or she would find guilt established if assigned the role of trier of fact: Arcuri, at para. 23. Provided the judge concludes that the evidence as a whole, if believed, could reasonably support an inference of guilt, a directed verdict motion will fail: Arcuri, at paras. 23, 30, 33.

[47] Regarding the line between proper inference and improper speculation, I indicated in R v Morgan, 2013 ONSC 1522 the following suggestions at paras. 9-11:

Reasonable Inferences vs. Speculation

9 The Oxford Canadian dictionary defines 'inference' as an act of inferring; 'inferring' is defined as "deduce or conclude from facts and reasoning". 'Speculation' is defined as "from a theory or conjecture especially without a firm factual basis".

10 Black's Law Dictionary, 9th edition, defines 'inference' as "a conclusion reached by considering other facts and deducing a logical consequence from them." 'Speculation' is defined as "the act or practice of theorizing about matters over which there is no certain knowledge."

11 In R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 86 O.R. (3d) 134 (S.C.), Justice Ducharme analyzed the difference between inference and speculation:

B. The drawing of inferences

[23] While the jurisprudence is replete with references to the drawing of "reasonable inferences," there is comparatively little discussion about the process involved in drawing inferences from accepted facts. It must be emphasized that this does not involve deductive reasoning which, assuming the premises are accepted, necessarily results in a valid conclusion. This is because the conclusion is inherent in the relationship between the premises. Rather the process of inference drawing involves inductive reasoning which derives conclusions based on the uniformity of prior human experience. The conclusion is not inherent in the offered evidence, or premises, but flows from an interpretation of that evidence derived from experience. Consequently, an inductive conclusion necessarily lacks the same degree of inescapable validity as a deductive conclusion. Therefore, if the premises, or the primary facts, are accepted, the inductive conclusion follows with some degree of probability, but not of necessity. Also, unlike deductive reasoning, inductive reasoning is ampliative as it gives more information than what was contained in the premises themselves.

[24] A good starting point for any discussion of inference drawing is the definition offered by Justice Watt:

An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances.8

Equally important is Justice Watt's admonition that, "The boundary which separates permissible inference from impermissible speculation in relation to circumstantial evidence is often a very difficult one to locate."9

[25] The process of inference drawing was described by Doherty J.A. in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 209 as follows:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation. As Chipman J.A. put it in R. v. White (1994), 1994 NSCA 77, 89 C.C.C. (3d) 336 at p.351, 28 C.R. (4th) 160, 3 M.V.R. (3d) 283 (N.S.C.A.):

These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from the whole of the evidence on the other. [Emphasis added]

[48] Regarding the elements of first degree murder, the Crown must establish that the murder is both planned and deliberate. The element of planning and deliberation must precede the murder. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill, is not a murder that is planned and deliberate. Planning and deliberation must not be confused with intention. See R v Singh, [2005] O.J. No. 1318 (S.C.J.) at para. 4.

[49] Justice McCombs in R v Weese, 2010 ONSC 3589, described the evidentiary requirements of a planned and deliberate murder at paras. 15-17:

Planning and Deliberation

15 Planning and deliberation are two essential elements of first-degree murder⁴. They must both be proved beyond a reasonable doubt.

16 For first-degree murder to be proved, the planning and deliberation must take place before the murder. The term "planned" does not require sophistication, but it does require that it be "carefully thought out". The term "deliberate" means "considered, not impulsive", "slow in deciding", "cautious": R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074 at para. 18; R. v. Reynolds (1978), 1978 CanLII 1269 (ON CA), 44 C.C.C. (2d) 129 at p. 136-37.

17 Although the evidence shows that there was very little time between the initial confrontation and the shooting, even a short period of time can be sufficient for the killer to engage in the requisite planning and deliberation: R. v. McMartin, [1963] B.C.J. No. 99 (C.A.) at para. 40; R. v. Plewes, 2000 BCCA 278, [2000] B.C.J. No. 832 (C.A.) at para. 38; R. v. Hay, 2009 ONCA 398, [2009] O.J. No. 1904 (C.A.) at paras. 67-69. Depending on the conclusions reached by the jury, the evidence could support findings of planning and deliberation beyond a reasonable doubt.

[50] In R v Turningrobe, 2008 SCC 17, [2008] 1 S.C.R. 454, the Supreme Court of Canada allowed an appeal agreeing with the reasons given by Fraser J. A. In the Alberta Court of Appeal judgment, 2007 ABCA 236, Justice Fraser indicated that a conviction for first degree murder could be based on circumstantial evidence holding at paras. 135, 136:

135 A "planned" murder is one that "was conceived and carefully thought out" prior to being committed: R. v. Nygaard 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074 at para. 43. To convict of first degree murder, therefore, the jury must be satisfied that the accused has agreed in advance of the intentional killing to a "design" or "scheme", that is, a plan to murder the victim: R. v. Smith (1979), 1979 CanLII 2233 (SK CA), 1 Sask. R. 213 at para. 28 (C.A.). Of course, a jury can conclude a murder was planned and deliberate based on circumstantial evidence, even where other inferences may be possible: R. v. Mitchell 1964 CanLII 42 (SCC), [1964] S.C.R. 471 at para. 41. Indeed, absent a confession, a jury will ordinarily be relying on circumstantial evidence in assessing an accused's intentions at the relevant time: Mitchell, supra, at para. 41.

136 A "deliberate" murder requires something more than an intentional act since "it is only if the accused's act was intentional that he can be guilty of murder": More v. R. 1963 CanLII 79 (SCC), [1963] S.C.R. 522 at para. 36. In R. v. Nygaard 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074 at 1084, the Supreme Court approved the meaning of "deliberate" given by Gale J. in R. v. Widdifield (1961, Ont. S.C.), unreported, as excerpted in 6 Crim. L.Q. 152 at 153:

As far as the word "deliberate" is concerned, I think that the Code means that it should also carry its natural meaning of "considered," "not impulsive," "slow in deciding," "cautious," implying that the accused must take time to weigh the advantages and disadvantages of his intended action.

[51] The Crown’s theory is that Chad shot Johnson in a planned and deliberate murder, and that Louis and the other two accused were parties to the planned and deliberate murder. Party liability for a first degree murder was described by Justice Watt in R v Almarales, 2008 ONCA 692 at paras. 63-72:

Secondary Participation in First Degree Murder

63 Section 229 of the Criminal Code defines the crime of murder. Section 231 classifies murder for sentencing purposes. Murder is either first degree murder or second degree murder. Planned and deliberate murder is first degree murder. Murder committed during the actual or attempted commission of certain offences involving domination of others, such as unlawful confinement, is also first degree murder.

64 As a general rule, a person may commit a crime as a principal or as a secondary party. Participation as a secondary party includes aiding or abetting a principal to commit an offence. This general rule, which permits the commission of a crime through participation as a principal or a secondary party, is not a universal rule. Statutory language may confine liability to certain modes of participation. R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, 158 C.C.C. (3d) 486 at para. 62.

65 Secondary participation by aiding or abetting includes both conduct and fault requirements. Conduct may include acts, omissions (where there is a legal duty to act), words and gestures. The fault element has to do with the aider's or abettor's state of mind when engaged in the conduct.

66 Section 21(1)(b) applies to aiders. A person is a party to a crime as an aider if that person:

• Does (or, in the case of a legal duty, omits to do) something that helps the (or a) principal to commit the offence [the conduct requirement]; and

• Provides the assistance with the intention of helping the (or, a) principal to commit the offence [the fault requirement].

R. v. Maciel (2007), 2007 ONCA 196, 219 C.C.C. (3d) 516 (Ont. C.A.) at para. 86, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 258, 220 C.C.C. (3d) vi; R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973, 99 C.C.C. (3d) 193 at paras. 36-37.

67 Section 21(1)(c) governs abettors. Despite its use of the verb "abets", rather than the more expansive "does or omits to do anything for the purpose of abetting", abetting includes conduct and fault elements similar to those of aiding. A person is a party to a crime as an abettor if that person:

• Says or does something that encourages the (or, a) principal to commit the offence [the conduct requirement]; and

• Offers the encouragement by words or conduct with the intention of encouraging the (or, a) principal to commit the offence [the fault requirement].

R. v. Helsdon (2007), 2007 ONCA 54, 216 C.C.C. (3d) 1 (Ont. C.A.) at paras. 43-44.

68 A person may be found guilty of first degree murder as a secondary participant in a planned and deliberate murder. Nothing in s. 231(2), which classifies planned and deliberate murder as first degree murder, eliminates or restricts the secondary participation provisions of ss. 21(1)(b) and 21(1)(c).

69 A person may be found guilty of first degree murder as an aider of planned and deliberate murder if that person:

• Did (or, in the case of a legal duty, failed to do) something that helped the (or, a) principal to commit a planned and deliberate murder [the conduct requirement]; and

• Provided the assistance with the intention of helping the (or, a) principal to commit a planned and deliberate murder [the fault requirement].

70 The fault requirement, as in all cases of secondary participation by aiding, consists of two elements: an intention to help the principal and knowledge of the principal's intention. Maciel at para. 87. An aider must know that the principal intends to commit a planned and deliberate murder, and intend to help the principal to commit a planned and deliberate murder. The aider may acquire his or her knowledge that the murder is planned and deliberate through actual participation in the planning and deliberation, or by some other means. The means of acquiring knowledge are as irrelevant to culpability as proof of knowledge is essential to it. Maciel at para. 89.

71 A person may be found guilty of first degree murder as an abettor of a planned and deliberate murder if that person:

• Said or did something that encouraged the (or, a) principal to commit a planned and deliberate murder [the conduct requirement]; and

• Offered the encouragement, by words or conduct, with the intention of encouraging the (or, a) principal to commit a planned and deliberate murder [the fault requirement].

72 As in the case of secondary participation by aiding, abetting requires proof of the abettor's intention to encourage the principal and of the abettor's knowledge of the principal's intention. An abettor must know that the principal intends to commit a planned and deliberate murder and intend to encourage the principal to commit a planned and deliberate murder.

[52] In R v Briscoe, 2010 SCC 13, the Supreme Court of Canada outlined the actus reus and mens rea required of a party to a murder. Justice Charron held at paras. 13-18:

13 Canadian criminal law does not distinguish between the principal offender and parties to an [page420] offence in determining criminal liability. Section 21(1) of the Criminal Code makes perpetrators, aiders, and abettors equally liable:

21. (1) Every one is a party to an offence who

(a)

actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c)

abets any person in committing it.

The person who provides the gun, therefore, may be found guilty of the same offence as the one who pulls the trigger. The actus reus and mens rea for aiding or abetting, however, are distinct from those of the principal offence.

14 The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, "[t]o aid under s. 21(1)(b) means to assist or help the actor... . To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed": R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, at para. 26. The actus reus is not at issue in this appeal. As noted earlier, the Crown argued at trial that Mr. Briscoe was both an aider and an abettor. The trial judge's finding that Mr. Briscoe performed the four acts of assistance described above is not disputed.

15 Of course, doing or omitting to do something that resulted in assisting another in committing a crime is not sufficient to attract criminal liability. As the Court of Appeal for Ontario wrote in R. v. F. W. Woolworth Co. (1974), 1974 CanLII 707 (ON CA), 3 O.R. (2d) 629, "one does not render himself liable by renting or loaning [page421] a car for some legitimate business or recreational activity merely because the person to whom it is loaned or rented chooses in the course of his use to transport some stolen goods, or by renting a house for residential purposes to a tenant who surreptitiously uses it to store drugs" (p. 640). The aider or abettor must also have the requisite mental state or mens rea. Specifically, in the words of s. 21(1)(b), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime.

16 The mens rea requirement reflected in the word "purpose" under s. 21(1)(b) has two components: intent and knowledge. For the intent component, it was settled in R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973, that "purpose" in s. 21(1)(b) should be understood as essentially synonymous with "intention". The Crown must prove that the accused intended to assist the principal in the commission of the offence. The Court emphasized that "purpose" should not be interpreted as incorporating the notion of "desire" into the fault requirement for party liability. It is therefore not required that the accused desired that the offence be successfully committed (Hibbert, at para. 35). The Court held, at para. 32, that the perverse consequences that would flow from a "purpose equals desire" interpretation of s. 21(1)(b) were clearly illustrated by the following hypothetical situation described by Mewett and Manning:

If a man is approached by a friend who tells him that he is going to rob a bank and would like to use his car as the getaway vehicle for which he will pay him $100, when that person is ... charged under s. 21 for doing something for the purpose of aiding his friend to commit the offence, can he say "My purpose was not to aid the robbery but to make $100"? His argument would be that while he knew that he was helping the robbery, his desire was to obtain $100 and he did not care one way or the other whether the robbery was successful or not.

(A. W. Mewett and M. Manning, Criminal Law (2nd ed. 1985), at p. 112)

The same rationale applies regardless of the principal offence in question. Even in respect of murder, there is no "additional requirement that an aider or abettor subjectively approve of or desire the victim's death" (Hibbert, at para. 37 (emphasis deleted)).

17 As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed. That sufficient knowledge is a prerequisite for intention is simply a matter of common sense. Doherty J.A. in R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, provides the following useful explanation of the knowledge requirement which is entirely apposite to this case (at paras. 88-89):

... a person who is alleged to have aided in a murder must be shown to have known that the perpetrator had the intent required for murder under s. 229(a): R. v. Kirkness (1990), 1990 CanLII 57 (SCC), 60 C.C.C. (3d) 97 (S.C.C.) at 127.

The same analysis applies where it is alleged that the accused aided a perpetrator in the commission of a first degree murder that was planned and deliberate. The accused is liable as an aider only if the accused did something to assist the perpetrator in the planned and deliberate murder and if, when the aider rendered the assistance, he did so for the purpose of aiding the perpetrator in the commission of a planned and deliberate murder. Before the aider could be said to have the requisite purpose, the Crown must prove that the aider knew the murder was planned and deliberate. Whether the aider acquired that knowledge through actual involvement in the planning and deliberation or through some other means, is irrelevant to his or her culpability under s. 21(1).

18 It is important to note that Doherty J.A., in referring to this Court's decision in R. v. Kirkness, 1990 CanLII 57 (SCC), [1990] 3 S.C.R. 74, rightly states that the aider to a murder must "have known that the perpetrator had the intent required for murder". While some of the language in Kirkness may be read as requiring that the aider share the murderer's intention to kill the victim, the case must now be read in the light of the above-noted analysis in Hibbert. The perpetrator's [page423] intention to kill the victim must be known to the aider or abettor; it need not be shared. Kirkness should not be interpreted as requiring that the aider and abettor of a murder have the same mens rea as the actual killer. It is sufficient that he or she, armed with knowledge of the perpetrator's intention to commit the crime, acts with the intention of assisting the perpetrator in its commission. It is only in this sense that it can be said that the aider and abettor must intend that the principal offence be committed.

[53] The elements of aiding and abetting a murder were succinctly summarized in R v Chambers, 2016 ONCA 684, where Hoy A.C.J.O. indicated at paras. 34-39:

4.1. Elements of Aiding and Abetting an Offence

34 Under s. 21(1) of the Criminal Code, R.S.C. 1985, c. C-46, a person may be found guilty as a party to an offence if he or she (a) actually committed it; (b) did or omitted to do anything for the purpose of aiding any person to commit it; or (c) abetted any person in committing it. An aider or abettor is just as culpable as a principal offender for purposes of imposing criminal liability: R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, at para. 85.

35 However, the actus reus and mens rea for aiding and abetting are distinct from those of the principal offence. The elements for aiding and abetting were defined by the Supreme Court in R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, and by this court in Maciel and R. v. Helsdon, 2007 ONCA 54, 84 O.R. (3d) 544.

36 The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence: Briscoe, at para. 14.

37 The mens rea of aiding and abetting has two elements: intent and knowledge. To be found liable as an aider or abettor, an accused must have intended to assist or encourage the perpetrator to commit the crime: Briscoe, at para. 16; Maciel, at para. 87; Helsdon, at para. 43.

38 An accused can only intend to assist or encourage in the commission of a crime if she knows which crime the perpetrator intends to commit. Therefore, the Crown must prove that an alleged aider or abettor knew that the perpetrator intended to commit the crime, although she need not know precisely how it will be committed: Briscoe, at para. 17; Maciel, at para. 89.

39 Where an accused has been charged with having aided or abetted in the commission of a murder, the Crown must prove that she knew that the perpetrator had the intent required for murder: Maciel, at para. 88. In Briscoe, at para. 18, the Supreme Court clarified that an aider or abettor does not need to have the mens rea for murder personally.

[54] Regarding post offence conduct, the authorities make it clear that this is circumstantial evidence that may or may not be relevant depending on the live issues at trial and what proper inferences can be made regarding the post-offence conduct surrounding those live issues. Hoy A.C.J.O. in Chambers summarized the law regarding post-offence conduct evidence as follows at paras. 76 – 82:

6.1. The Law Regarding Post-Offence Conduct Evidence

76 The term post-offence conduct evidence, which is sometimes called after-the-fact conduct evidence, refers to evidence of acts or omissions of the accused occurring after the commission of an alleged offence. It is circumstantial evidence that a jury may use, when considering the charges against an accused, if and to the extent that it is relevant to a live issue: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72 ("White #1"), at para. 21; see also R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 ("White #2"), at paras. 22 and 31.

77 At the same time, the jurisprudence recognizes that post-offence conduct evidence "is a special brand of circumstantial evidence that carries a heightened risk of misapplication and prejudice" and that the relevance and available uses of such evidence are not always matters of common sense: David M. Paciocco, "Simply Complex: Applying the Law of 'Post-Offence Conduct' Evidence" (2016) 63 C.L.Q. 275, at p. 277; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 31. In some cases, trial judges will be obliged to deliver "cautions" and "limiting instructions" that are not generally required for other forms of circumstantial evidence: Paciocco, at p. 277.

78 In White #2, at para. 31, Rothstein J. explained that the rules governing the need for and scope of limiting instructions are those that govern the admissibility of circumstantial evidence in general: is the evidence relevant to a live issue; is the evidence subject to any specific exclusionary rules (for example, the hearsay rule); and should the evidence be excluded under a recognized judicial discretion?

79 Laskin J.A. explained how to determine the relevance and permissible use, if any, of post-offence conduct evidence in R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 55:

Post-offence conduct, therefore, is not subject to blanket rules. It is circumstantial evidence whose probative value depends on the nature of the evidence, the issue at trial and the positions of the parties. Thus, we do not automatically label certain kinds of post-offence conduct as always or never relevant to a particular issue. Rather, we must consider all the circumstances of a case to determine whether the post-offence conduct is probative and, if so, what use the jury may properly make of it. In the words of Rothstein J. in [White #2], the overriding question is this: what do "logic and human experience" suggest that a jury can legitimately or rationally infer from the accused's post-offence conduct?

80 In some cases, the post-offence conduct will have no probative value because it is not relevant to any live issue; in such cases, a trial judge must deliver a blanket "no probative value" instruction informing the jury that they should not consider the post-offence conduct. For instance, in R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, the accused was charged with aggravated assault for having allegedly stabbed someone. He admitted to having punched the victim several times before he fled from the scene. The trial judge permitted the jury to consider the post-offence conduct of flight as evidence on the aggravated assault charge, but the Supreme Court concluded that was an error. Because the accused had admitted culpability in respect of one offence (assault) and the evidence could not logically support an inference of guilt with respect to another offence he was charged with, the evidence of the appellant's flight had no probative value and the jury could make no use of it.

81 In some instances, however, evidence of post-offence conduct can logically support an inference of guilt with respect to one offence rather than another. As the Supreme Court explains in White #1, at para. 32:

It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused's flight or concealment is out of all proportion to the level of culpability admitted, it might be found to more consistent with the offence charged.

82 And post-offence conduct may be probative of one live issue, but not of another. For example, flight per se may be relevant in determining the identity of the assailant, but may not be relevant in determining the assailant's level of culpability, as between manslaughter and murder. In that circumstance, the judge must give a limiting instruction as to the appropriate and inappropriate inferences to be drawn from the evidence: White #2, at para. 39. A trial judge's failure to instruct a jury on the limited use of or inferences available from the post-offence conduct evidence may constitute reversible error: see, for example, Rodgerson.

[55] A recent example of the relevance and use of post-offence conduct is provided in R v Aravena, 2015 ONCA 250, at paras. 125-130:

Issue #4: The Instruction on Aravena's Post-Offence Conduct

125 Aravena admitted in his evidence that he travelled from Winnipeg to Ontario in the hopes of advancing in the Bandidos hierarchy. After the murder, he was elated and excited to have earned a "prospect patch."

126 Here the trial judge instructed the jury in the following terms:

There is another potential use of the post-offence conduct that you heard. One of the elements you will be considering as you deliberate is whether the accused committed planned and deliberated murder. Sometimes, evidence as to what a person does after a crime has been committed can constitute circumstantial evidence of a pre-existing plan. To use a gruesome, but real, example, evidence that the body was cut up into pieces after the murder can be connected to the purchase by the accused, before the murder, of surgical instruments, to constitute circumstantial evidence of a pre-existing plan to commit murder and butcher the body. In our case, the evidence relied upon this regard is the evidence of Bandido-related activity by the accused Mushey, Aravena and Sandham in Winnipeg following the demise of the deceased, which it relies on as circumstantial evidence of a pre-existing plan to eliminate the Toronto chapter and elevate the status of the Winnipeg chapter and its members.

127 Aravena submits that the trial judge ought to have instructed the jury that the evidence of his conduct after the killings was of no probative value as to the degree of culpability for the homicides, as it was equally consistent with guilt of manslaughter, second degree murder and first degree murder.

128 In R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, the court stated at para. 42:

Thus, Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, and White (1998) should be understood as a restatement, tailored to specific circumstances, of the established rule that circumstantial evidence must be relevant to the fact in issue. In any given case, that determination remains a fact-driven exercise. Whether or not a given instance of post-offence conduct has probative value with respect to the accused's level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial. There will undoubtedly be cases where, as a matter of logic and human experience, certain aspects of the accused's post-offence conduct support an inference regarding his level of culpability.

129 Here, Aravena's happiness right after the killing suggests a number of logical possibilities:

a) He had obtained the goal to which he aspired;

b) The events at the farm were not shocking or unexpected, but had unfolded in accordance with a plan;

c) He knew about the plan; and/or

d) He aided the killers with knowledge of the plan.

130 As a matter of logic and human experience, Aravena's conduct after the killing was relevant to whether he was a party to a planned and deliberate murder.

APPLICATION OF LAW TO FACTS

[56] In my opinion, it is open for the jury to make a number of reasonable inferences from the evidence adduced at this trial.

[57] Regarding motive, there was evidence from Detective Gibson that Brandon was in a dispute with two males at Hess Village on the weekend of September 27-28, 2013. The males called Brandon a “goof” and a “goof rat” and ran off. Later, at about 2:30 a.m., the officer saw Brandon walking with Joshua and a female in the Hess Village area. Chris Radej (Chris) testified that Brandon and an unknown male got into an altercation with Tyler Johnson and his taller friend, and the unknown male struck Chris in the face while Chris was talking to Brandon. Chris went home to his high rise apartment and later two men tried to entice Chris downstairs. Exhibit 50 is the cell phone record regarding Chris’ phone number and it is dated September 28, 2013. It shows communication with 289-921-7025 (Brandon’s cell phone number) between 3:19 a.m. and 3:48 a.m. on September 28, 2013.

[58] Accordingly, it is a reasonable inference that there was a “beef” between one or both Barreira brothers with Johnson stemming from an altercation in late September of 2013.

[59] The evidence from Jessica Riley is that she left Hush at 2 a.m. on November 30, 2013 when Brandon was still there, and she saw Johnson go into Hush. It is reasonable to infer that Brandon knew that Tyler Johnson was at Hess Village after 2 a.m.

[60] Joshua was at Stowaway’s bar that night with Louis and Ferreira. An examination of Louis cell phone records leading up to that night and the following morning show phone calls to his ex-wife, Jessica Riley, his sister and the Blue Line Cab company that picked up a “louie” shortly after the murder. There is also evidence of a call between Louis’ phone and Joshua while Louis was in Ashley’s Jeep. All this evidence leads to a reasonable inference that Louis was in possession and was using his cell phone at all material times.

[61] With Johnson being present at Hess Village after 2 a.m., an opportunity for revenge now presented itself, and Brandon, while at Smoke’s Poutinerie in Hess Village, phoned Joshua at 2:46 a.m. He made arrangements to meet Joshua and the other accused at Tim Hortons.

[62] A minute later, Louis phones a sleeping Chad, and Chad tells Ashley that they are going to the Tim Hortons downtown. Ashley testified that she heard the phone ring and Chad probably picked it up, and then he told her he wanted to go out. It is obvious that Chad gets a gun and immediately makes his way downtown from his home on the Hamilton Mountain. Louis and Chad make several phone calls to each other’s numbers. Chad has Joshua’s numbers but speaks with Louis at 2.47 a.m., 2.48 a.m., 2.49 a.m., 2.52 a.m., 2.56 a.m. and 3.04 a.m. (a total of 6 times). Given all the circumstances both before and after these calls, it is reasonable to infer that Louis and Chad are talking about the details of the plan to kill Tyler Johnson. Cell phone records indicated that as the 6 calls were taking place, the Davidson’s phone was moving from the Mountain towards downtown Hamilton. It can be inferred that Ashley is driving the Jeep, as she later parks the Jeep at the Tim Hortons.

[63] While Louis and Chad are talking on the phone, Joshua drives Louis and Ferreira to Tim Hortons where Brandon and his friends are waiting. The Jaguar arrives at the Tim Hortons at 2.59 a.m. Brandon and his friends get into the back seat of the Jaguar.

[64] The Jeep arrives at 3:04 a.m., at around the time of the last call between Louis and Chad. Chad gets out of the passenger side of the Jeep and goes into the Jaguar. Louis gets into the passenger side of the Jeep with Ashley, who he barely knows. It can be inferred that this was part of the plan that had been discussed by Chad and Louis over those 6 phone calls.

[65] Given what occurred on the videos, it is reasonable to infer that the plan was to seek out Tyler Johnson (who was known to be at Hess Village). Chad’s role was to shoot and kill Johnson with the backup of the Barreira brothers. Louis role was to distract Johnson, as Johnson would have no reason to question Louis, who was an acquaintance and there was no apparent bad blood between them. Also, both Ashley and Ferreira did not know Johnson, and so the only person in the Jeep who could fulfill the distraction role was Louis.

[66] Four minutes after the arrival of the Davidsons at Tim Hortons, the Jaguar and Jeep leave Tim Hortons at 3:08 a.m. They proceed toward Hess Street, presumably to look for Johnson. Ironically, Johnson and Ricky are walking on King Street at Hess towards the Tim Hortons and the Jaguar passes them. The Jaguar then turns left at Queen Street and makes its way back to the Tim Hortons.

[67] At 3:08:32 a.m., Louis, in Ashley’s Jeep, phones Joshua, and Louis tells Ashley to go back to the Tim Hortons, which Ashley does.

[68] Johnson and Ricky go into the Vida La Pita at approximately 3:09 a.m.

[69] The Jaguar arrives at the Tim Hortons plaza and parks. Chad and the Barreira brothers get out and walk in front of the Vida La Pita, which has large windows. It is reasonable to infer that they see Johnson. The three of them go around the corner and wait.

[70] Ashley’s Jeep arrives at around 3:10 a.m., and Brandon runs to where they are parked. It is reasonable to assume that Louis is being advised either orally or by sight that Brandon and the other two are there. Ashley has parked at a point that is just feet away from the shooting, and there is a clear sight line toward the front of the Vida La Pita. Further, Ashley keeps the Jeep running and her Jeep is parked beside the Jaguar.

[71] Johnson and Ricky leave the Vida La Pita and walk toward where the Jeep is parked. Louis gets out and engages Johnson with conversation, and Johnson’s back is turned away from the approaching Barreira brothers and Chad. Johnson cannot see the approaching Chad with a loaded gun in his right hand. In his statement, Louis says that Johnson is suspicious and it is reasonable to infer that Louis’ conduct may have initiated that as Louis was fully aware of what was about to happen.

[72] Chad gets right next to Johnson and says “T”, and Johnson swings at Chad and misses. Brandon had gone by Johnson and Chad. Chad then shoots Johnson in the chest. Louis can be seen standing beside Johnson at and after the shooting. Louis seems not to react to the shooting. Meanwhile everyone else in the area immediately runs or drives away.

[73] Tyler Johnson runs to the Tim Hortons and collapses and dies. Louis, his supposed friend, does not assist Johnson but gets into the Jeep with its engine running. Within seconds of Tyler’s shooting, the Jeep takes off and proceeds down King Street.

[74] Brandon gets into the Jaguar and drives Chad away from the scene going in a different direction, also within seconds of the shooting. Accordingly, the getaway cars are parked within feet of the shooting and the group are able to get away almost immediately after the shooting.

[75] Joshua calmly walks away and takes a cab at Hess Street. All four accused have left the scene in a different manner from the way they arrived before their initial rendezvous at the Tim Hortons at around 3 a.m.

[76] According to the phone records, Louis is in contact with Joshua and Chad minutes after the shooting.

[77] Brandon phones his mother in Cambridge to come and get him. Louis, at about 4.30 a.m., is in contact with Joshua. When Brandon is picked up by his mother, Louis is in the area and he goes to Cambridge with Brandon. He stays at Cambridge that morning with the Barreira brothers who he knows have been involved in the killing of his “friend”.

[78] Louis tells the police he threw out his SIM card and flushed it. Louis in his statement to the police refuses to acknowledge that he phoned Chad just before the murder, and he says someone used his phone but will not or cannot name who. It can be inferred that Louis knows that the call to Chad was the crucial call to arrange for Chad to bring a gun down to Tim Hortons where the other accused were waiting for Chad, in order to carry out the plan to kill Johnson.

[79] Further, Louis has no explanation for the call at 3:08:02 a.m. with Joshua while he was in the Jeep with Ashley that sparked the return to the Tim Hortons plaza. This call is on 7564’s (Louis phone) billing records. This phone record coincides with Ashley’s testimony that Louis was on his cell phone as she was driving, and Louis told her to go back to the Tim Hortons plaza.

[80] Further, Louis throws away his clothes due to the fact that there is gunpowder on them. Louis changes his SIM card on December 12, 2013, a day after the arrest of Brandon. He destroys the old SIM card. Louis lies to the police in numerous ways when he is arrested and interviewed. The exact use of this after the fact conduct will depend upon its relationship to the record as a whole, and the issues raised at the trial. See Aravena at para.128 and Chambers at paras. 78-82.

[81] The above scenario consists of reasonable inferences from the evidence adduced at this trial. The jury may take a different view or may make the same inferences if they so wish. See Arcuri at para. 23 and Sazant at para. 18.

[82] The circumstantial evidence and the reasonable inferences establish a simple but carefully thought out and deliberate plan to kill Johnson. The evidence and inferences establish that all four accused have agreed in advance to a plan to murder Johnson. It was a plan consisting of a considered decision to kill Johnson. See Turningrobe at paras. 135, 136.

[83] Louis’s role was to phone and arrange Chad to meet them at the Tim Hortons so that Chad could bring down the gun that was used to kill Johnson. Further, Louis had a second role – Louis was to distract Johnson while the other accused approached him with the intention to shoot and kill Johnson.

[84] Given the above, it is reasonable for a jury to conclude that Louis, as a party to the murder, intended and did assist Chad to commit a planned and deliberate murder, and provided that assistance with the knowledge that Chad intended to commit a planned and deliberate murder. It is reasonable for a jury, on the evidence, to conclude that Louis and the Barreira brothers knew that Chad intended to commit a planned and deliberate murder, intended to help Chad to commit a planned and deliberate murder and did assist Chad to commit a planned and deliberate murder. See Almarales at paras. 69, 70 and Briscoe at paras. 14-17.

[85] Regarding Louis specifically, there is sufficient evidence for the jury to conclude that the actus reus for aiding the first degree murder of Johnson was (1) arranging for Chad to meet the group at the Tim Hortons so that the planned and deliberate murder could be carried out, and (2) then engaging Johnson so that Chad could sneak up and shoot and kill Johnson. Regarding the mens rea for aiding the first degree murder, there is sufficient evidence for the jury to conclude that Louis intended to assist Chad in carrying out the plan to commit a first degree murder and Louis knew that Chad intended to commit a planned and deliberate murder. See Chambers at paras. 34-38.

CONCLUSION

[86] I am satisfied that the Crown has adduced sufficient evidence, on every essential element of the charge of first degree murder, upon which a reasonable jury properly instructed could return a verdict of guilt. See Shephard, Arcuri at para. 23 and Bains at paras 158-160.

[87] The evidence adduced by the Crown as a whole, if believed, could reasonably support an inference of guilt of Louis Rebelo of the first degree murder of Tyler Johnson.

ORDER

[88] The motion brought by Louis Rebelo for a directed verdict of not guilty of first degree murder and any included offences is dismissed in its entirety.

Skarica J.

Released: April 24, 2017

CITATION: R. v. Barreira et al., 2017 ONSC 2540

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: April 24, 2017