



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barreira, 2021 ONCA 455

DATE: 20210622

DOCKET: C68868

Miller, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joshua Barreira

Appellant

Delmar Doucette, for the appellant

Elena Middelkamp, for the respondent

Heard: June 18, 2021 by videoconference

On appeal from the sentence imposed on November 16, 2020
    by Justice Harrison S. Arrell of the Superior Court of Justice, with reasons
    reported at 2020 ONSC 6558.

REASONS FOR DECISION

FACTUAL BACKGROUND & PROCEDURAL HISTORY

[1]

Joshua Barreira and Tyler Johnson had been involved in an altercation in
    September 2013. On November 30, 2013, based on information received from his
    brother, Mr. Barreira anticipated another fight with Mr. Johnson, so he
    summoned the assistance of Chad Davidson. Mr. Barreira then led a search for
    Mr. Johnson. During the encounter that followed, in Mr. Barreiras presence,
    Mr. Davidson shot Mr. Johnson in the chest, killing him.

[2]

Mr. Barreira was initially tried and convicted of murder for his role in
    Mr. Johnsons death. However, in March 2020 this court set his murder
    conviction aside and ordered a new trial: 2020 ONCA 218, 62 C.R. (7th) 101.

[3]

On August 6, 2020, the Crown accepted a guilty plea from Mr. Barreira to
    the lesser included offence of manslaughter.

[4]

Sentencing submissions were completed on October 1, 2020. The matter was
    adjourned for the sentencing judge to prepare reasons for sentence.

[5]

On November 16, 2020, the sentencing judge determined that 15 years
    imprisonment was a fit sentence for the manslaughter offence. Mr. Barreira was
    given 10 years credit for pre-sentence custody served prior to the sentencing
    hearing, and a further six months of 
Duncan
credit for the harsh
    conditions during his pre-sentence custody, leaving a net sentence of 4.5
    years.

ISSUES ON APPEAL

[6]

Mr. Barreira seeks leave to appeal his sentence. He raises the following
    grounds of appeal:

(1)     The
    15-year sentence imposed by the sentencing judge fell outside the appropriate
    sentencing range;

(2)     Since
    the agreed statement of facts disclosed that it was unknown whether Mr. Barreira
    knew that Mr. Davidson had a gun, the sentencing judge erred by failing to
    sentence Mr. Barreira on the basis that he did not know that Mr. Davidson had a
    gun;

(3)     The
    sentencing judge erred in not assigning greater
Duncan
credit given the
    harshness of the conditions during pre-sentence custody; and

(4)     The
    sentencing judge omitted to assign the equivalent of 69 additional days of
    pre-sentence custody for the 46 days Mr. Barreira had served between sentencing
    submissions on October 1, 2020 and the date on which his sentence was imposed,
    November 16, 2020.

ANALYSIS

[7]

We grant Mr. Barreira leave to appeal his sentence, and we accept his
    fourth ground of appeal, which the Crown concedes. It appears that the
    sentencing judges failure to give pre-sentence credit for the time between sentencing
    submissions and the imposition of sentence was an oversight.

[8]

However, we reject the other alleged errors.

[9]

First, we do not agree that the sentencing judge erred by imposing a
    sentence outside the appropriate range. As noted by the Supreme Court of
    Canada, The fact that a judge deviates from the proper sentencing range does
    not in itself justify appellate intervention:
R. v. Lacasse
, 2015 SCC
    64, [2015] 3 S.C.R. 1089, at para. 11. The relevant inquiry is whether the
    sentence was demonstrably unfit.

[10]

Without
    commenting on whether the sentence imposed by the sentencing judge was outside
    the range, in our view the sentence was not demonstrably unfit, even
    considering mitigating circumstances. Mr. Barreira led the search for Mr. Johnson,
    invited Mr. Davidsons participation in the attack on an unsuspecting and unarmed
    victim, and had an extensive criminal record, including a prior conviction for
    counselling murder.

[11]

Second,
    the sentencing judge did not err by treating the uncertainty about whether Mr. Barreira
    knew that Mr. Davidson had a gun as a neutral factor. For Mr. Barreira to
    benefit from the alleged mitigating fact that he did not know Mr. Davidson had
    a gun, this would need to have been established on the balance of
    probabilities:
R. v. Smickle
, 2013 ONCA 678, 311 O.A.C. 288, at para.
    18;
Criminal

Code
, R.S.C. 1985, c. C-46, s. 724(3).

[12]

Third,
    the impact of enhanced credit for harsh conditions of pre-sentence custody is a
    matter well within the discretion of the sentencing judge:
R. v. Duncan
,
    2016 ONCA 754, [2016] O.J. No. 5255, at paras. 6-7;
R. v. Ledinek
,
    2018 ONCA 1017, [2018] O.J. No. 6503, at para. 13. While the sentencing judge
    might well have given more credit for those conditions, this does not provide a
    basis for interfering.

CONCLUSION

[13]

Leave
    to appeal from sentence is granted, and Mr. Barreiras sentence appeal is
    allowed in part.

[14]

The
    sentence of 4.5 years is set aside, and a sentence of 4 years, 113 days is
    substituted to reflect the 69 additional days of pre-sentence credit that
    should have been awarded for the 46 days of pre-sentence custody between sentencing
    submissions and the date Mr. Barreira was sentenced.

B.W. Miller J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.


