



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dagenais, 2018 ONCA 63

DATE: 20180125

DOCKET: C62613

Strathy C.J.O., Doherty J.A. and McCombs J. (
Ad
    Hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Jennifer Dagenais

Appellant

Michael Dineen and Mark Halfyard, for the appellant

Randy Schwartz and Erica Whitford, for the respondent

Heard: November 7, 2017

On appeal from the conviction entered on March 23, 2016
    by Justice Dale Parayeski of the Superior Court of Justice, sitting without a
    jury.

McCombs J.
(
ad
    hoc
):

[1]

On March 23, 2016, the appellant was convicted of three counts: being an
    accessory after the fact to murder, obstructing police, and public mischief.
[1]
She appeals only
    her conviction on the accessory charge.

[2]

For the reasons that follow, I would allow the appeal and enter an
    acquittal. In my view, a review of the trial record demonstrates that the
    appellants conviction was based on a theory of liability that fell outside the
    scope of the indictment.

Overview

[3]

Tyler Johnson was shot to death on November 30, 2013 in Hamilton,
    Ontario at about 3:00 a.m. Four men, Joshua Barreira, his brother Brandon
    Barreira, Chad Davidson, and Louis Rebelo, were later arrested for first-degree
    murder. The appellant and her friend Ashley Dore-Davidson were arrested for
    their alleged roles as accessories after the fact to the murder.

[4]

The appellant did not call any evidence at trial. Trial counsel conceded
    guilt on the obstruct police and public mischief charges, but argued that the
    Crown had failed to prove the charge of being an accessory after the fact to
    murder.

[5]

The focus of the appellants trial was on her conduct in trying to help
    her boyfriend Joshua Barreira avoid justice. Joshua Barreira was alleged to be
    one of three men guilty of murder as a party to the shooting carried out by his
    friend Chad Davidson.

[6]

On
May 11, 2017, more than a year after the appellants
    trial, t
hree of the men, Chad Davidson, Joshua Barreira, and Brandon
    Barreira, were convicted of first-degree murder. The fourth man, Louis Rebelo,
    was convicted of manslaughter.

[7]

Section 592 of the
Criminal Code

permits proceeding with
    an accessory after the fact charge prior to the principals trial. However,
    proceeding in this manner places an added burden on the Crown, because proof of
    guilt of the principal offender is an essential element of the crime of being
    an accessory after the fact:
R. v. Duong

(1998), 124 C.C.C.
    (3d) 392 (Ont. C.A.), at para. 27.  If the principals murder conviction
    precedes the
accessory after the fact trial, s. 657.2(2) of
    the
Criminal Code

permits evidence of the conviction to be
    admitted at trial as proof of the principals guilt. By proceeding with the
    appellants trial prior

to the murder trial, the Crown could not rely on
    this provision and was required to prove
that the principal was himself
    guilty of murder.

[8]

In addition to evidence concerning the murder and the identity and roles
    of the alleged murderers, the Crowns case against the appellant rested on two
    main bodies of evidence:

i)

About three
    hours after the murder, the appellant fled the city with Joshua Barreira in a
    car registered in her name. When the car was involved in an accident, they
    abandoned the accident scene. The next day the appellant falsely reported the
    car stolen.

ii)

About two weeks later, the
    appellant married Joshua Barreira in a joint wedding with the shooter Chad
    Davidson and his long-time girlfriend, Ashley Dore-Davidson. The couples each
    acted as witnesses to the others wedding. There was evidence that the
    marriages were for the purpose of invoking the then-existing spousal
    incompetency rule.
[2]


[9]

The trial judge found that the Crown had failed to prove that Joshua
    Barreira was guilty of murder. He found that only the shooter, Chad Davidson,
    had been proven guilty of murder. Since proof that the principal committed
    murder is an essential element of the charge faced by the appellant, she could
    not be convicted as an accessory after the fact to murder committed by Joshua
    Barreira.

[10]

Rather
    than acquitting the appellant, the trial judge proceeded to convict her on the
    basis that she had been
Chad Davidsons
accessory by serving as a
    witness to his wedding.

[11]

I
    have concluded that a review of the trial record reveals that the scope of the
    charge faced by the appellant was limited to her actions in relation to Joshua
    Barreira and did not encompass Chad Davidson as an alternate principal
    offender. The trial judge found that the Crown had not proven that Joshua
    Barreira committed murder. Therefore the Crown had failed to prove an essential
    element of the accessoryship charge faced by the appellant.

[12]

I
    would allow the appeal and enter an acquittal for the reasons that follow.

A.

THE GROUNDS OF APPEAL

[13]

The appellant advances four grounds of appeal:

1.

The trial judge
    erred in finding that witnessing a non-fraudulent wedding could constitute the
actus
    reus
for being an accessory after the fact;

2.

The trial judge
    erred by interpreting the accessory charge as applying to multiple
    transactions;

3.

The trial judge
    erred by convicting the Appellant on the basis of a theory of liability that
    fell outside the scope of the indictment and had not fairly been raised at
    trial; and

4.

The trial
    judges reasons for conviction were insufficient.

[14]

I
    would allow the appeal on the third ground.

[15]

To
    explain my conclusion, I will briefly review the trial record.

B.

THE APPELLANTS TRIAL

(1)

The Broad Wording of the Accessory Count

[16]

The accessory count was framed in the broadest
    of terms.  It alleged that the appellant, in the two and one-half months
    between the date of the murder on November 30, 2013, and her arrest on February
    14, 2014, in the City of Hamilton:

did commit accessory after the fact to murder, contrary to the
    provisions of Section 240 of the
Criminal Code
.

[17]

The
    indictment contained no information identifying how the appellant was alleged
    to have committed the offence, or the principal offender or offenders whom she
    was alleged to have helped.

(2)

The Crowns Opening Statement

[18]

Crown
    counsels opening statement referenced the appellants conduct only in relation
    to her boyfriend, Joshua Barreira. Although the Crown opening referred to the
    joint wedding, nothing in the opening statement signalled that the appellant
    was charged with assisting anyone other than her boyfriend, Joshua Barreira.

[19]

Unsurprisingly,
    in light of the Crowns opening statement, defence counsels focus throughout
    the trial was on Joshua Barreiras culpability for murder, and the appellants
    conduct in assisting Joshua Barreira.

(3)

The Evidence at Trial

The Murder

[20]

Homicide
    officer Detective Sergeant Jason Cattle testified that Tyler Johnson was killed
    by a single shot to the chest outside a restaurant in downtown Hamilton shortly
    after 3:00 a.m. on November 30, 2013.  The relevant events were captured on
    surveillance videos, some of which were played during Detective Cattles
    testimony. The footage showed Chad Davidson and Joshua Barreira walking
    together toward the victim. Brandon Barreira and Louis Rebelo are also seen in
    the vicinity of the victim. Davidson is seen holding a handgun at his side.
    After a brief struggle, Davidson fired a fatal shot into the victims chest. 
    The four men then fled the scene.

Events Shortly After the Murder

(i)

Brandon Barreira Calls His Mother from Hamilton
    Asking to Be Picked Up

[21]

The evidence showed that about an hour after the
    murder, Brandon Barreira called his mother, Marta Leite, at her home in
    Cambridge, and asked to be picked up in Hamilton and driven back home.  Ms.
    Leite, with her common-law partner Howard Puterman driving, made the 30 to 45
    minute drive to Hamilton, and picked up Brandon Barreira as well as Louis
    Rebelo, who unexpectedly joined them.

(ii)

The Accident

[22]

The collective evidence of various witnesses
    established that about three hours after the murder, a Jaguar registered to the
    appellant was involved in an accident as it merged from a Hamilton on-ramp onto
    Highway 403.  The appellant and Joshua Barreira were observed standing on the
    shoulder. The badly damaged car was in the middle of the highway.

(iii)

The Drive Back to Cambridge

[23]

Mr. Puterman testified that shortly after they
    merged onto Highway 403 from Hamilton, they encountered the accident.  As he
    approached the accident scene, someone screamed out that that was Joshs car.
    Mr. Puterman pulled over just past the accident scene, got out, and walked
    back.  He saw the appellant standing by herself, and Joshua Barreira soon
    appeared. Mr. Puterman told them hed be in his vehicle whenever they were
    ready.  He returned to his vehicle, and within a few minutes, the appellant and
    Joshua Barreira got in. Mr. Puterman returned to their home in Cambridge.  The
    badly-damaged Jaguar was abandoned in the middle of the highway.

(iv)

The Appellants False Report That Her Car Had
    Been Stolen

[24]

Evidence was led that the appellant called 911
    shortly after 3:00 p.m. on December 30, to report that her car had been stolen.
    A recording and a transcript of the call were tendered in evidence.  The 911
    operator advised the appellant that the OPP had some involvement with her
    vehicle and she needed to contact the OPP. The appellant was given an OPP
    number to contact.  She called about an hour later and repeated her false claim
    to the OPP officer who was investigating the fail to remain collision involving
    the appellants Jaguar. She agreed to meet with the officer the following
    morning to provide a statement, but she did not attend. The officer made
    repeated efforts to contact the appellant but was unsuccessful.

[25]

The appellants false report led to the public
    mischief and obstruct police charges that were not contested at trial.

The Arrest of Brandon Barreira

[26]

Brandon Barreira was arrested on December 11,
    2013, at his mothers home in Cambridge.  Reports of his arrest were on the
    news along with video footage depicting Joshua Barreira, Chad Davidson, and
    Louis Rebelo.

The Double Wedding

i)

The overheard conversation about getting married

[27]

A casual friend of Ashley Dore-Davidson
    testified that on December 12, the day after Brandon Barreiras arrest, Ashley
    showed up unexpectedly with Chad Davidson and another couple she introduced as
    Jenn and Josh.  Ashley asked if it was okay if the four stayed overnight at her
    apartment and she agreed.

[28]

The witness testified that the following
    morning, December 13, she overheard parts of a conversation in which Ashley was
    suggesting that the four of them should get married: Ashley to Chad, and Jenn
    to Josh. The witness testified that Jenn and Josh were opposed to the
    suggestion, and Ashley said something like this is what we have to do and that
    the women wouldnt have to testify, or talk to the police if they were married
    to each other.

ii)

The wedding itself

[29]

That same day, on December 13, two days after
    Brandon Barreira was arrested, the appellant married Joshua Barreira in a joint
    wedding along with Ashley Dore-Davidson and Chad Davidson. The Crown position
    was that the couples hasty marriages were arranged because the arrest of
    Brandon Barreira and the news reports led them to fear that Joshua Barreira and
    Chad Davidsons arrests were imminent.

[30]

The court heard evidence that the appellant and
    Ashley Dore-Davidson each obtained rush marriage licenses that day.  Later
    that same day they were married in a joint ceremony.  No guests were present.
    They each acted as witnesses to the others wedding.

Evidence of Ashley Dore-Davidson

[31]

Ashley Dore-Davidson testified.  She was clearly
    a reluctant witness. Despite having recently pleaded guilty to being an
    accessory after the fact to the murder of Tyler Johnson committed by Chad Davidson,
    she denied knowing who shot the victim.  She claimed that she had not read the
    disclosure and had not listened as the facts were read in at her guilty plea. 
    She refused to read a transcript of her guilty plea when invited to do so by
    the Crown, saying:

I dont want to. Cause as far as Im
    concerned, I pled guilty just to get out of jail. I pled to whatever, I didnt
    care, as long as it got me out of jail faster. So I dont want to read it. Im
    out in 10 days, so I dont care.

[32]

Ms. Dore-Davidson confirmed that she had
    suggested the joint wedding, but testified that she never discussed the
    shooting with the appellant. She agreed that the couples signed as witnesses to
    each others weddings, but was never asked whether there had been discussion about
    witnessing each others wedding.

Evidence of Lindsay Dagenais

[33]

Lindsay Dagenais, the appellants older sister,
    testified that she disapproved of the appellants relationship with Joshua
    Barreira. She testified that she learned that her sister had gotten married in
    a joint wedding with Ashley Dore-Davidson and Chad Davidson. She testified that
    on the advice of her sisters lawyer, she did not discuss the murder with her.
    She was asked whether she ever asked the appellant why Chad Davidson acted as a
    witness at her wedding and she said she did not.  She was not asked the key
    question upon which the appellants conviction was ultimately founded: whether
    she knew why the appellant had acted as a witness to the Dore-Davidson wedding.

The Focus of Crown and Defence Counsel in
    Examination of Witnesses at Trial

[34]

My review of the evidence at trial leads me to
    conclude that the appellants witnessing of Chad Davidsons wedding to Ashley
    Dore-Davidson was never on the radar as an alternate theory of liability.

[35]

On the contrary, the focus of both Crown and
    defence counsel was on the appellants conduct in relation to a single
    principal, Joshua Barreira.  Nothing in the evidence signalled that the Crown
    was relying on an alternate theory of accessoryship with Chad Davidson as the
    principal.

(4)

Closing submissions of Crown and defence counsel

Crown submissions

[36]

Crown counsels closing submissions focused upon
    the appellants efforts to help Joshua Barreira avoid justice.

[37]

Crown counsel supplemented her oral submissions
    with written submissions.  Crown counsel pointed out that the written
    submissions had been prepared using
Watts Manual of Criminal Jury
    Instructions
. Paragraph 12 stated:

Using Final Instructions for Accessory After the Fact from
    Watts jury instructions, the Crown must prove the essential elements beyond a
    reasonable doubt including:

(i)

That Brandon Barreira, Joshua Barreira, Chad Davidson and Louis Rebelo
    committed murder;

(ii)

That
    Jennifer Dagenais knew that
the principals
had committed murder;

(iii)

That
    Jennifer Dagenais provided assistance to
the principals
; and

(iv)

That
    Jennifer Dagenais provided assistance for the purpose of helping
the
    principals
to escape. (emphasis added)

[38]

The portion referred to above refers to the
    principals, and at other points in the written submissions, the principals
    are referred to as the men. However, as I will discuss shortly, when the
    written submissions reach the question contained in part (iv), the submissions
    no longer refer to the principals or the men, but instead refer only to a
    single individual, Joshua Barreira:

What is important here is Jennifer Dagenais purpose, not the
    effect of what she did.  Crown counsel must prove beyond a reasonable doubt
    that Jennifer Dagenais did what she did for the purpose of helping
Joshua Barreira
escape. Whether her conduct actually did help
Joshua Barreira
escape may
    help you decide what Jennifer Dagenais purpose was in giving assistance, but
    Crown counsel does not have to prove that what Jennifer Dagenais did actually
    achieved that purpose.

To determine Jennifer Dagenais state of mind, her purpose in
    providing assistance to
Joshua Barreira
you should consider:

·

What she did or did not do

·

How she did or did not do it; and

·

What she said or did not say about it.

All these things, and the circumstances in which they happened,
    may help you decide whether Jennifer Dagenais purpose in providing assistance
    to
Joshua Barreira
was to enable him to escape.  Use your good common
    sense. [Emphasis added.]

[39]

It can be seen by reference to the above passage
    from the Crowns written submissions that the focus of the appellants
    accessory charge shifted from the principals, to a single principal, namely
    Joshua Barreira.

[40]

The Crowns written submissions then turned to a
    discussion of the evidence concerning whether the appellant, with the requisite
    intent, provided assistance to Joshua Barreira.  In support of this discussion,
    the Crown listed 22 bullet-points. The 18
th
bullet-point states:

·

By being a witness to Ashley and Chad [
sic
] wedding, Jennifer
    Dagenais was also assisting in protecting Chad Davidson so Ashley would not
    have to testify against her now husband.

[41]

The context of this bullet-point reference makes
    it clear that the Crown was relying on the appellants witnessing of the
    Dore-Davidson wedding as a piece of
circumstantial evidence
supporting the Crowns position that the appellant was guilty of
    accessoryship in relation to Joshua Barreira, and not as a stand-alone
    alternate theory of liability in relation to Chad Davidson, an entirely
    different principal.

Defence Submissions

[42]

Defence counsels submissions addressed the case
    the appellant was required to meet: a charge of being an accessory after the
    fact to murder committed by the principal, Joshua Barreira. His submissions
    show that he recognized, correctly in my view, that the case against the
    appellant depended on proof that Joshua Barreira was guilty of murder; that she
    knew or was wilfully blind to his being a party to murder; and that she
    assisted him in trying to escape justice.

[43]

Defence counsel first argued that the Crowns
    case fell short of establishing an essential element of the offence: that
    Joshua Barreira was guilty of murder. He next argued that entering into a valid
    marriage for the purpose of invoking a legal right (spousal immunity) could not
    form the
actus reus
of the offence of
    accessoryship. In support of this submission, he relied on
R. v.
    Hawkins
(1996), 111 C.C.C. (3d) 129 (S.C.C.), and
R.
    v. Nguyen
,
2015 ONCA 278,
    125 O.R. (3d) 321.

[44]

Defence counsel made no submissions concerning
    the appellants conduct with respect to assisting Chad Davidson, but restricted
    his submissions to what he clearly regarded as the case to meet: whether the
    Crown had established the accessory charge against the appellant in relation to
    her conduct in assisting Joshua Barreira.

[45]

Defence counsel did not address the issue of
    whether witnessing

another principals wedding could support the
    charge.  His failure to address the witnessing issue as a basis for liability
    is understandable. Given this trial record, counsel reasonably understood that
    the appellant was charged only in relation to her conduct on behalf of Joshua
    Barreira.

[46]

When defence counsel completed his submissions,
    Crown counsel made no submissions in reply.  At no point did the trial judge
    say anything to counsel that could suggest that he was considering a theory of
    liability based on the appellants actions in relation to the shooter, Chad
    Davidson.

C.

THE TRIAL JUDGES REASONS FOR JUDGMENT

[47]

The trial judge reserved judgment. In delivering
    his oral reasons for judgment on the return date, he identified what he
    understood to be three bases of potential liability of the appellant:

1. That she was assisting Joshua Barreira to escape when a
    motor vehicle accident occurred on November 30, 2013;

2. That by marrying Joshua Barreira and thus creating her right
    to invoke the spousal incompetency rule relative to testimony, she was
    assisting Joshua Barreira to avoid criminal liability; and

3. That by serving as a witness to the marriage of Chad
    Davidson and Ashley Dore-Davidson, she assisted the former to avoid criminal
    liability by permitting the latter to invoke the spousal incompetency rule.


[48]

The trial judge commented on what he understood
    to be the third basis of liability by stating: if the third point sounds
    convoluted, that is because it is convoluted.

[49]

With respect, the trial judge erred in
    identifying the appellants actions in relation to Chad Davidson as an
    alternative theory of the Crown.  As I have stated, my review of the trial
    record reveals that the appellant was not facing a charge involving Chad
    Davidson as the principal to her accessoryship charge.

[50]

The trial judge held that the Crown has failed
    to prove beyond a reasonable doubt that Joshua Barreira was a party to the
    killing.  He concluded, however, that the evidence did establish Chad
    Davidsons guilt for murder. Since Joshua Barreira had not been proven guilty
    of murder, the appellant could not be convicted for her conduct in helping him
    escape justice:
Duong,
at para. 27.

[51]

The trial judge found, however, that by
    witnessing the Dore-Davidson wedding, the appellant provided assistance to Chad
    Davidson to avoid justice, and that at least part of her purpose was to help
    him avoid criminal liability. Based on those findings, he convicted the
    appellant of the accessory charge.

[52]

I note as well that in his reasons for sentence,
    on April 15, 2016, the trial judge acknowledged that the appellants conviction
    was founded on a theory of liability that had not been advanced by the Crown. 
    He stated:  there is merit in defence counsels observation that
my route
    to the finding of guilt here was not one put forth by the Crown
 (emphasis
    added).

D.

DISCUSSION AND CONCLUSION

[53]

As will be clear by now, my review of the trial
    record has led me to conclude that the appellants charge of being an accessory
    after the fact to murder related to her conduct in relation to Joshua Barreira
    only, and not to Chad Davidson.

[54]

The trial judge founded the appellants
    conviction on a basis that was beyond the reach of the charge she faced. Once
    the trial judge found that Joshua Barreira had not been proved to have
    committed the murder, the Crown had failed to prove a necessary element of the
    offence:
Duong,
at

para. 27. The appellant was entitled to an
    acquittal.

[55]

It is well-established that, subject to due
    process concerns, a conviction may be founded on a theory of liability that has
    not been advanced by the Crown, provided that theory is available on the
    evidence:
R. v. Pickton
,
2010 SCC 32, [2010] 2. S.C.R. 198, at para. 19;
R. v.
    Khawaja

(2010), 273 C.C.C. (3d) 415 at paras.
    143-45 (Ont. C.A.);
R. v. Ranger

(2003),
    67 O.R. (3d) 1, at paras. 34-35 (C.A.);
R. v. Pawluk
,
2017 ONCA 863.

[56]

In this case, however, the appellants
    conviction was based on a theory of liability that was
not

founded in the evidence and never advanced at trial.

[57]

I would allow the appeal, set aside the
    conviction, and enter an acquittal.

[58]

Given my conclusions, it is not necessary to
    address the other grounds of appeal.

Released: January 25, 2018 (G.S.)

D. McCombs J. (ad hoc)

I agree. G.R. Strathy C.J.O.

I agree. Doherty J.A.





[1]
The obstruct police charge was stayed under the rule against multiple
    convictions for the same unlawful act:
R. v. Kienapple
,

[1975] 1
    S.C.R. 729.



[2]
The
Canada Evidence Act
was later amended and the spousal
    non-compellability provisions contained in s. 4 (4) and s. 4 (5) were repealed:
    2015, c.13, s. 52(2.1).  However, the spousal privilege provisions contained in
    s. 3 of the
Act
remain.


