CITATION: R. v. Barreira et al., 2017 ONSC 948
COURT FILE NO.: CR-15-4953
DATE: 2017-02-09
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 February 7 and 8, 2017
REASONS FOR RULING – SITTING AT COUNSEL TABLE, RESTRAINTS, HOT LUNCHES
The Honourable Mr. Justice Skarica
INTRODUCTION
[1] Counsel for Louis Rebelo and Joshua Barreira bring applications for an order permitting the applicants Louis Rebelo and Joshua Barreira to be seated beside counsel at the counsel table for the duration of their trial. Louis Rebelo, Joshua Barreira and the two other accused are charged with first degree murder. The accused also bring applications to remove leg shackles and have hot meals provided to them by counsel or paralegals during the trial.
ISSUES
[2] There are three issues I am asked to address.
[3] First, should Louis Rebelo, Joshua Barreira and/or the other accused be allowed to sit at counsel table in circumstances where three of the accused have criminal records (Mr. Rebelo has no criminal record) and there appears to be a likelihood of a “cut-throat” defence or defences involving the co-accused?
[4] Second, should any or all of the accused be handcuffed and shackled during the trial?
[5] Third, should the accused have non-institutional hot meals provided to them by counsel during the trial?
ISSUE #1 – ACCUSED SITTING AT COUNSEL TABLE APPLICATION
FACTS
[6] Louis Rebelo, Joshua Barreira and the two other accused are charged with the first degree murder of Tyler Johnson on November 30, 2013.
[7] My review of the materials filed on this motion and other motions to be decided by me indicates the Crown will adduce a videotape which allegedly shows the victim Mr. Johnson being shot at close range by the accused Chad Davidson.
[8] I understand that the Crown’s theory is that Chad Davidson shot Mr. Johnson and was aided and abetted by the other three accused in a planned and deliberate murder.
[9] One of the accused, Joshua Barreira, has given three statements. The latter two statements indicate that Chad Davidson is the shooter and the other three accused charged were innocent bystanders who happened to be in the wrong place at the wrong time. Accordingly, there appears to be a reasonable basis to anticipate a “cut-throat” defence from at least Joshua Barreira, with Joshua Barreira placing the blame of the crime at the feet, or at least the gun-wielding hand, of Chad Davidson.
THE BACKGROUND OF THE APPLICANT JOSHUA BARREIRA
[10] Joshua Barreira has a long criminal record which includes a conviction for counselling to commit murder. As a youth, Joshua Barreira acquired numerous convictions for fail to comply with disposition and fail to comply with recognizance. As an adult, he acquired four convictions for fail to comply with recognizance, a conviction for obstruct police officer, and a parole violation.
[11] Joshua Barreira, during the preliminary hearing and while his mother Marta Leite was testifying in what appeared to be at an emotional moment, interrupted the proceedings by blurting out, “Everything…fucking nuts…this is ridiculous. I can’t stay in here. I’ve got to go to the bathroom.” A recess was then granted. Upon resuming, Mr. D. Moore, counsel for Joshua Barreira at the time, indicated, “It’s obviously an emotional time for all concerned.”
[12] As indicated, Joshua Barreira has given two statements where he has indicated that Chad Davidson is the shooter and Joshua Barreira and the other two accused were simply in the wrong place at the wrong time. Accordingly, it is reasonable to anticipate a “cut-throat” type of defence from at least Joshua Barreira being forwarded at this trial.
[13] The Crown submitted, as Exhibits 2 to 5, Client Profile Reports (prepared by the jail authorities) regarding all four accused. They were submitted through Sgt. Preston who was called by the Crown as a witness on this voir dire. Sgt. Preston is the court security officer in charge of court security at the Sopinka courthouse in Hamilton and is therefore charged with addressing safety concerns regarding the four accused.
[14] Exhibit 3 is the Client Profile Report relating to Joshua Barreira. Sgt. Preston identified a number of misconducts by Joshua Barreira while in custody involving allegations of possessing contraband, committing threats and/or assaults, and creating a disturbance. The report also indicates that Joshua Barreira is to be kept separate from a number of individuals, including the accused Louis Rebelo and Chad Davidson.
[15] In cross-examination, Sgt. Preston indicated he had little knowledge of the procedures that generated the guilty findings included in the Client Profile Reports. “Contraband” could include an extra bag of chips or soap. Sgt. Preston lacked knowledge of how an inmate might defend himself against allegations, who makes decisions in the custodial setting, and what due process rights inmates are afforded, if any. Sgt. Preston did have some reports relating to some of the allegations, but these were hearsay and he had no personal knowledge of what occurred. Sgt. Preston did not have knowledge of the standard of proof, if counsel were allowed or were in attendance, what procedures were followed, or who acted as adjudicator or prosecution, if any. Sgt. Preston, further, had limited knowledge as to the basis for the non-contact orders.
[16] Given Sgt. Preston’s lack of knowledge of the procedures and due process guarantees in the Client Profile Reports, these reports are, in my opinion, of little probative value but have the potential to be very prejudicial. Accordingly, I choose not to rely on the Client Profile Reports that were entered as Exhibits 2 to 5.
[17] Sgt. Preston testified that one of his concerns regarding the accused sitting at counsel table is that the accused would have access to paper clips and pens and pencils, which have the potential to be used as weapons should they be secreted and taken to the jail. Prisoners are searched when they enter the courthouse and are searched again before they are transported back to the jail.
THE BACKGROUND OF THE APPLICANT LOUIS REBELO
[18] The Crown indicates in its material that Mr. Rebelo has a conditional discharge for assault and has a misconduct on his Client Profile Report (Exhibit 2) with the Ministry of Corrections for wilfully disobeying the order of an officer. As indicated, I choose not to rely on the Client Profile Report. The conditional discharge is a relatively minor blemish on Mr. Rebelo’s background and character, especially as compared to the serious criminal backgrounds of the other accused Joshua Barreira and Chad Davidson, and to a lesser extent Brandon Barreira.
THE BACKGROUND OF THE NON-APPLICANT CHAD DAVIDSON
[19] Chad Davidson has a long criminal record which includes a conviction and penitentiary sentence for armed robbery. As a youth, Mr. Davidson has two convictions for fail to comply with a recognizance, three convictions for fail to comply with a disposition, three convictions for escape lawful custody and one conviction for unlawfully at large. As an adult, he has one conviction for escape lawful custody, one conviction for obstruct police, a conviction for flight, two convictions for breach of probation and has violated statutory parole orders on four different occasions.
[20] When the Crown witness, Chris Radej, testified at the preliminary hearing, the learned justice presiding over the proceedings, Justice M. Agro, indicated that she noticed Chad Davidson was finding the proceedings amusing. Justice Agro directed Ms. Edward, counsel for Mr. Davidson at the time, “If he’d like to share it, then perhaps we all could have a laugh.”
[21] Sgt. Preston had personal knowledge that Mr. Davidson at times refused to attend at the preliminary hearing.
[22] I have been provided with transcripts of only a small portion of the preliminary hearing proceedings and do not know what else occurred during those proceedings.
THE BACKGROUND OF THE NON-APPLICANT BRANDON BARREIRA
[23] As a youth, Brandon Barreira was convicted of one count of fail to comply recognizance, one count of fail to comply with a disposition and one count of fail to comply under section 139 of the YJCA. As an adult, Brandon Barreira has been convicted of two counts of fail to comply with a recognizance.
LAW
[24] The basic principle of law regarding “sitting at counsel table” applications brought by the accused is set out in R. v. Lalande, 1999 CanLII 2388 (ON CA), [1999] O.J. No. 3267 (C.A.) where Justice Borins held, at para. 19:
Where an accused person sits during his or her trial is within the discretion of the presiding judge, to be determined in the interests of a fair trial and courtroom security: R. v. Levogiannis (1993), 1993 CanLII 47 (SCC), 85 C.C.C. (3d) 327 (S.C.C.). I am aware that Commissioner Kaufman has made recommendations concerning where an accused person may sit during his or her trial: Report of the Commission on Proceedings Involving Guy Paul Morin, 1998, Vol. 2, 1167-68. Counsel for the respondent informed the court that in light of Commissioner Kaufman's recommendations, the Ministry of the Attorney General has adopted the policy with respect to accused persons who are not in custody and who present no security concerns, that while the ultimate decision rests with the presiding judge, the Crown should normally consent to the accused person being permitted to sit at the counsel table should he or she request to do so.
[25] Justice Campbell in R. v. Gervais, 2001 CanLII 28428 (ON SC), [2001] O.J. No. 4942 (S.C.J.) set out the traditional approach regarding the seating location of accused persons at a criminal trial, at paras. 8-10, as follows:
Although the Criminal Code is silent on this issue, the following principles emerge:
The customary position of the accused in the courtroom is in the dock
The trial judge has discretion as to the position of the accused in the courtroom in individual cases
The presence of the accused in the dock does not violate his or her Charter rights.
Exceptions may arise where the presence of the accused in the dock manifestly precludes him from making full answer and defence.
One example is the hearing-impaired accused who cannot hear from the dock. Other examples can arise with unrepresented accused. Some judges take the view that the accused in complex commercial fraud cases should be able to sit at the counsel table to assist counsel with voluminous documents, but others find that this direct participation by the accused tends to distract both counsel and jury.
[26] Justice Fuerst in R. v. Wills, [2006] O.J. No. 3662 (S.C.J.), observed, at paras. 30-34:
Regardless of the practice in the United States, accused persons appearing in Canadian courtrooms traditionally sit in the prisoner’s box.
The Morin Commission Report recommended that absent the existence of a proven security risk, the accused should be entitled to sit at counsel table. This recommendation is deserving of respect, but it is not binding on me.
Indeed, the Ontario Court of Appeal held in R. v. Lalande, 1999 CanLII 2388 (ON CA), [1999] O.J. No. 3267 that where an accused person sits during his or her trial is a decision within the discretion of the trial judge. The governing factors are the interests of a fair trial, and courtroom security.
There is no evidence before me that the right to be presumed innocent and/or the right to a fair trial would be infringed because of jurors’ perceptions, if Mr. Wills remains in the prisoner’s box. No evidence was adduced that jurors would be negatively influenced because Mr. Wills is seated there, particularly if they are instructed that they must presume him innocent and draw no adverse inference from his position in the courtroom.
It is speculative to conclude that Mr. Wills would be prejudiced if he is required to remain in the prisoner’s box.
[27] Security, maintaining order in the courtroom and management problems are matters to be considered by this court in exercising its discretion: see Wills at paras. 39-41.
ANALYSIS
[28] Given the factual circumstances previously described with regard to Joshua Barreira and Chad Davidson, including their past serious criminal records, past conduct and the likelihood of a “cut-throat” defence on a first degree murder case, I find that having these two accused seated in close proximity to each other at counsel table could reasonably give rise to potentially serious management and security concerns. I note that both are in custody and have not been granted bail. Accordingly, I conclude that it is in the interest of a fair trial and courtroom security that they remain in the dock and separated in different docks as they currently are.
[29] The other two accused also have not been granted bail but they do not have the serious criminal backgrounds that Joshua Barreira and Chad Davidson bring to the proverbial table.
[30] However, if I were to permit Brandon Barreira and Louis Rebelo to sit at counsel table while the other two co-accused are confined in the dock, this would lend itself to the potential impression that the two accused in the dock are being confined and treated differently from the other two accused for reasons that the jury would inevitably speculate about, especially if and when the jury learn about the criminal backgrounds of the two confined accused in the prisoner’s dock.
[31] Notwithstanding any direction I could give, the daily and visual reminder of the differing treatment of Joshua Barreira and Chad Davidson, as opposed to Brandon Barreira and Louis Rebelo, could lead to potential prejudice to Joshua Barreira and Chad Davidson.
[32] In my opinion, no prejudice arises if all four accused are treated in a similar fashion. In other words, it is in the best interest of justice that all four remain in the dock or alternatively, all four are at the counsel table. This opinion is in accordance with the position taken by counsel for Brandon Barreira and Chad Davidson.
[33] For at least Joshua Barreira and Chad Davidson, security and management concerns require overwhelmingly that they remain in the dock.
[34] Regarding Brandon Barreira and Louis Rebelo, they do not have bail and are in custody. The Crown has established minimal security concerns regarding Brandon Barreira and virtually none regarding Louis Rebelo. Brandon Barreira has not made an application to sit at counsel table. Louis Rebelo has made an application to sit at counsel table.
[35] However, in my opinion, to have Louis Rebelo sit at counsel table (and perhaps Brandon Barreira as well) for four months, day after day, while the other two or three accused are in the dock, could lead to the jury speculating unfavourably against the other accused in the dock.
[36] Counsel for Mr. Rebelo have referred me to R. v. M.T., 2009 CanLII 43426 (Ont. S.C.) where Justice Nordheimer indicated, at para. 12, that it is of the utmost importance that an accused person be in a position to instruct his or her counsel and to provide assistance to them as the trial unfolds. In Mr. Rebelo’s instance, he is seated in the right dock (from my viewpoint) in the courtroom which is immediately adjacent to the counsel table where his counsel sits. Mr. Rebelo’s ability to instruct his counsel and provide assistance, in my opinion, would not be materially enhanced by his being seated at the counsel table as opposed to sitting in the dock immediately adjacent to the counsel table where his counsel sits.
[37] Counsel have also referred me to R. v. Clarke, 2009 CanLII 55720 (Ont. S.C.) where Justice Thorburn ordered that the accused could sit at the counsel table. However, the accused in Clarke was unrepresented, which is an example of one of the exceptions to the general custom that the accused in a criminal trial sits in the dock: see Gervais, at para. 10, and Clarke, at para. 19. Justice Thorburn indicated that it is customary to instruct the jury that the accused’s place in the courtroom (i.e., in the dock), should form no part of their consideration whether the Crown has proven their case on the evidence beyond a reasonable doubt.
[38] There appear to be some Superior Court decisions that suggest a “stigma” attaches to persons sitting in a prisoner’s dock: see for example M.T. at para. 9, Clarke at para. 19 and R. v. S.S., [1997] O.J. No. 250 (Gen Div.). Other courts have disagreed with the stigma conclusion: see for example R. v. Heyden, [1998] O.J. No. 6253 (Gen. Div.), where Justice McIsaac held, at para. 7, that the stigma proposition was conjecture and that juries can be trusted to follow their duty to apply the presumption of innocence. Even Justice Nordheimer in M. T., at para. 9, appreciated that an appropriate jury charge might address “stigma” concerns.
[39] Rather than participate in the “stigma” debate, I believe that it is more appropriate to use a common sense approach that balances the accused’s right to a fair trial and courtroom security concerns: see Lalande, at para. 19.
CONCLUSION REGARDING ISSUE #1 – ACCUSED SITTING AT COUNSEL TABLE
[40] In my opinion, having regard to the Lalande criteria, it is in the best interests of a fair trial and courtroom security that all four accused be treated equally and that all four accused accordingly remain in the dock for the duration of this murder trial.
ISSUE #2 – RESTRAINTS
FACTS
[41] The four accused have been placed in three different docks with Chad Davidson in the dock to my left, the Barreira brothers in the central dock and Louis Rebelo in the dock to my right.
[42] None of the four accused have been handcuffed in court. They are searched when they arrive at the courthouse and searches also take place after court concludes for the day.
[43] The four security officers in court are equipped with an ASP baton, pepper spray and handcuffs. In short, security staff are minimally armed.
[44] The four accused have not been handcuffed and do not have leg irons. However, their legs are bound by a belt-type device which permits them to walk relatively normally to the washroom from what I have observed. Neither the jury nor I can see the leg belts from where we are seated.
LAW
[45] Justice Fuerst in the Wills case succinctly summed up the law regarding restraints, at para. 45, as follows:
The decision whether an accused in custody should be restrained by handcuffs and/or shackles while in the courtroom also is a decision within the discretion of the presiding judge. The judge must balance the duty to ensure the safety of all participants to the proceedings and to prevent escape, with the need to maintain the dignity of the accused in the context of the presumption of innocence: see, R. v. McNeill (1996), 1996 CanLII 812 (ON CA), 108 C.C.C. (3d) 364 (Ont. C.A.). The issue is not to be decided by security staff, although their views may well carry considerable weight. Once the issue of the use of restraints in the courtroom is raised, the presiding judge should hold a hearing on the matter. If the Crown wishes some form of restraint used in the courtroom, it bears the onus of establishing reasonable grounds for its imposition: R. v. Figueroa, [2002] O.J. No. 3146 (S.C.J.).
ANALYSIS
[46] Chad Davidson has numerous convictions for escape custody and breaches of court orders. He can definitely be considered to be a flight risk and it is reasonable for him to have the minimally intrusive belt restraints on his legs. There is no prejudice to any of the accused wearing the leg belt restraints as the jury will not be able to observe them.
[47] Similarly, Joshua Barreira has numerous convictions for breach of court orders and is a parole violator. As well, he is blaming Chad Davidson for the murder and given the potential antagonistic defences to be put forward coupled with Mr. Barreira’s lack of respect for the law as demonstrated by his long and unenviable criminal history, it is also reasonable for him to wear the minimally intrusive leg belt restraints especially since the jury will be unaware of his wearing the leg belt restraints.
[48] Counsel for Joshua Barreira have referred me to the decision of R. v. McNeill (1996), 1996 CanLII 812 (ON CA), 29 O.R. (3d) 641 (C.A.), where the Ontario Court of Appeal considered the evolution of common law restraint procedures since the year 1726. The Court of Appeal accepted the following statements as the applicable law:
A balance should be struck between the duty of the judge to ensure the safety of all participants to the proceeding and to prevent escape on the one hand and the need to maintain the dignity of the prisoner in the context of the presumption of innocence on the other. In effecting this balance the views and expertise of the security personnel will no doubt be given considerable weight. The ultimate determination, however, must be made by the presiding judge and not by security staff.
[49] It is my opinion that the wearing of the leg belt restraints achieves the balance between safety of all the participants and the dignity of the accused in the context of the presumption of innocence.
[50] I have less concern regarding the other two accused (Louis Rebelo and Brandon Barreira) but again there is no prejudice to their wearing the belt restraints and I believe it is in the interests of justice to have all the accused be treated equally, provided there is no resulting prejudice: see Gervais, at para. 16 and R. v. Vickerson, [2006] O.J. No. 351 (S.C.J.), at paras. 16-17. In this instance, there is none.
[51] Were the accused to wear handcuffs, the jury would surely see them and this could occasion prejudice to the accused. Further, I see no need for them as the leg belt restraints and the security present will minimize any remaining security concerns. Further, the accused may need the use of their hands in order to make any notes should they so wish.
[52] Given the minimally intrusive belt leg restraints, there is no need for the more clunky metal leg restraints (leg irons) that I have seen used in court on past occasions.
CONCLUSION REGARDING ISSUE #2 – RESTRAINTS
[53] Accordingly, the accused will not be handcuffed in court and will not wear leg irons but will wear the belt leg restraints.
ISSUE #3 – HOT LUNCHES
FACTS
[54] Apparently, one or some of the accused had hot lunches brought to them during the preliminary hearing. This was done without incident by a paralegal from a Hamilton counsel’s office. The normal procedure, according to Sgt. Preston, is that sandwiches (baloney or peanut butter) are brought from the jail. There are no drinks provided and inmates drink water from the tap.
[55] The concern of Sgt. Preston is that drugs or other items can be baked or inserted into the food. The food from outside sources can be checked for obvious paraphernalia but not for baked-in ingredients. Sgt. Preston objects to paralegals bringing in the food as he feels that counsel should transport the food as they are more directly accountable.
LAW
[56] Defence counsel referred me to a ruling made by Justice Trotter in a recent case (September 12, 2016) in a second degree murder trial being held at 361 University Avenue in Toronto: R. v. Jama et al.
[57] Justice Trotter does not refer to any authority but I am assuming that lunch orders can be made pursuant to a judge’s discretion regarding the interests of justice and security concerns as outlined by the Ontario Court of Appeal in Lalande.
[58] In Jama, Justice Trotter ordered that meals be delivered to the accused, and that the meals were to be purchased from the cafeteria in the 361 University Avenue courthouse and be delivered to the accused either by counsel or an articling student approved by him.
ANALYSIS
[59] In my opinion, an order permitting meals to be brought to the accused by persons other than their counsel or their articling students would set a precedent that outside parties can provide meals to detained accused. I agree that there can be no control over potentially illicit ingredients.
[60] The usual procedure in Hamilton is that the authorities provide the meals at lunchtime. I heard no evidence of any long-term detrimental effects on accused persons being fed pursuant to this arrangement.
[61] The evidence from Sgt. Preston is that the accused will be provided one sandwich and no drinks. This does appear to be somewhat skimpy, although I am personally aware that, during criminal jury trials, many counsel and judges often take no lunch at all.
[62] I believe a humane and reasonable course of action would be for the authorities to provide the accused with two sandwiches with a beverage of some sort at the lunch hour. The authorities are at liberty to get the sandwiches and beverages from the local cafeteria, the jail, or elsewhere at their discretion.
CONCLUSION REGARDING ISSUE #3 – HOT LUNCHES
[63] In my opinion, counsel’s role is to defend their clients vigorously using their legal expertise and training. Counsel or their students being dispatched to bring meals to their in-custody clients at lunch time does not fit into the traditional role of counsel. I believe that this is a path that raises many concerns about the appropriate role of counsel and raises security concerns as well. Accordingly, it is my opinion that “hot lunch” orders should be generally avoided except in the most compelling and exceptional cases.
ORDER
[64] The following orders will issue:
The four accused are to be seated in the prisoner docks for the duration of the trial. Given the possibility of cut-throat defences, the optimal configuration is the current arrangement: Chad Davidson sits by himself in the prisoner dock to my left; the brothers Joshua Barreira and Brandon Barreira sit together in the middle dock; and Louis Rebelo sits by himself in the prisoner dock to my right.
There will be an instruction to the jury that the accused’s place in the dock is the customary procedure in a criminal trial and it forms no part of their consideration as to whether the Crown has proven its case on the evidence beyond a reasonable doubt.
The accused will not be handcuffed while in court or be restrained by leg irons but will wear the leg belt restraints that they are currently wearing.
The custodial authorities will provide two sandwiches and a beverage to each of the accused persons at the lunch break on days where there is both a morning and afternoon session at the Hamilton Sopinka courthouse. Meals from outside sources including paralegals, counsel, and/or law students will not be permitted.
Skarica J.
Released: February 9, 2017
CITATION: R. v. Barreira et al., 2017 ONSC 948
COURT FILE NO.: CR-15-4953
DATE: 2017-02-09
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:co
Released: February 9, 2017