



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barreira, 2020 ONCA 218

DATE: 20200318

Hourigan, Miller and Nordheimer
    JJ.A.

DOCKET: C64042

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Barreira

Appellant

DOCKET: C64124

AND BETWEEN

Her Majesty the Queen

Respondent

and

Joshua Barreira

Appellant

DOCKET:
    C65065

AND BETWEEN

Her Majesty the Queen

Respondent

and

Chad Davidson

Appellant

Richard Litkowski and Jessica Zita, for
    the appellant, Brandon Barreira

Delmar Doucette and Andrew Furgiuele,
    for the appellant, Joshua Barreira

Michael Lacy and Deepa Negandhi, for
    the appellant, Chad Davidson

Susan L. Reid and Elena Middelkamp, for
    the respondent

Heard: February 19 and 20, 2020

On appeal from the convictions entered
    by Justice Antonio Skarica of the Superior Court of Justice, sitting with a
    jury, on May 12, 2017.

Nordheimer
    J.A.:

A.

Overview

[1]

Brandon Barreira, Joshua Barreira and Chad
    Davidson each appeal from their convictions for first degree murder after a
    trial with a jury that took place over a period of approximately twelve weeks.

[2]

For the following reasons, I would allow the
    appeals and order a new trial.

[3]

The offences arise out of events that took place
    shortly after 3:00 a.m. on November 30, 2013 in the Hess Village district of
    the City of Hamilton. At that time, Tyler Johnson was shot and killed. The
    police charged the three appellants, along with Louis Rebelo, with first degree
    murder in Johnsons death, on the basis that they acted together in a planned
    and deliberate murder.

[4]

It is not necessary, in light of my conclusion,
    to go into great detail with respect to the events that ultimately led to the
    shooting of Johnson. A limited review of those events will be sufficient to
    provide the backdrop for the issues that arise from the trial proceedings. In
    my reasons, in the interests of clarity, I will refer to the Barreira brothers
    by their first names and the other parties by their last names.

B.

Background

[5]

At trial, Davidson admitted, through counsel, that
    he was the person who shot Johnson. However, he took the position that he had
    done so instinctively in reaction to a punch directed at him by Johnson, and
    was therefore guilty of manslaughter only. Brandon, Joshua, and Rebelo, all
    admitted through counsel that they were present at the scene of the shooting
    but denied being parties to it. On May 12, 2017, the jury found the three
    appellants guilty of first degree murder. The jury found Rebelo not guilty of
    murder but guilty of manslaughter.

[6]

Davidson was a crack cocaine addict. His
    partner, Ashley Dore-Davidson, did not want Davidson to use drugs but testified
    they had a dont ask dont tell policy regarding his drug use. Sometimes, she
    accompanied him to purchases but did not confront him about his drug use. According
    to Dore-Davidson, Davidson became paranoid when using crack cocaine.

[7]

Joshua sold drugs. Davidson sometimes bought
    crack cocaine from Joshua, and had been to his house on multiple occasions to
    purchase it. On November 29, 2013, the day before the shooting, Davidson and
    Dore-Davidson went to Joshuas place so that Davidson could buy crack cocaine.
    At that time, Davidson told Joshua that he was going to get more money to buy
    more crack cocaine later that day. After this transaction, Davidson and
    Dore-Davidson went to their home on Hamilton Mountain.

[8]

Later on in the evening of that same day,
    Friday, November 29, Brandon, and Joshua were in the Hess Village area. Johnson
    was also in this area. They were at different bars. By the early morning of
    Saturday, November 30, both Brandon and Johnson had separately wound up at a Tim
    Hortons in the same area. Brandon had called Joshua asking that Joshua pick
    him up at the Tim Hortons and Joshua had agreed.

[9]

Meanwhile, there had been text messages between
    Joshua and Davidson about Davidson wanting to buy more crack cocaine. At one
    point, Joshua used Rebelos phone to call Davidson and suggest that, if
    Davidson wanted more crack cocaine, he should meet Joshua at the Tim Hortons.
    Davidson drove there with Dore-Davidson.

[10]

Joshua arrived at the Tim Hortons in his car
    about a minute after Brandon had arrived. Minutes later, Davidson and
    Dore-Davidson arrived in their vehicle. Davidson got out of his vehicle and
    into Joshuas vehicle, ostensibly to buy crack cocaine. Brandon was also in
    Joshuas vehicle. They drove off with Dore-Davidson, who had been joined by
    Rebelo, following.

[11]

Various surveillance videos recorded the travel
    of the two vehicles. They drove along King Street, across Queen Street, along
    Main Street, and across Caroline Street, back to the Tim Hortons on King, a
    total of eight short city blocks.

[12]

At the end of the drive, a few minutes after
    they had left, Joshua parked in front of another store, Vida La Pita, that was next
    to the Tim Hortons. Dore-Davidson parked beside Joshuas vehicle in front of the
    Vida La Pita. Due to discontinuities in the surveillance videos, it was not
    possible to say how far the one vehicle lagged behind the other during the trip.

[13]

Brandon, Joshua and Davidson got out of Joshuas
    vehicle. They walked past the Vida La Pita and around the east (left) corner of
    the building. As they were walking, they glanced back and forth at the cars to
    their left and the stores to their right. Brandon left Joshua and Davidson and
    trotted past the Vida La Pita toward the parked vehicles and then ran back to
    Joshua and Davidson. As he ran past the Vida La Pita, he looked toward it, and,
    when he got to Joshua and Davidson, he looked back.

[14]

At this time, Johnson and another male left the Vida
    La Pita, walked west toward Tim Hortons, and stopped at the west (right)
    corner of the building. Rebelo approached Johnson to speak with him. Rebelo told
    the police that he was friends with Johnson and the other male.

[15]

Brandon walked towards the Vida La Pita.
    Davidson and Joshua followed. Brandon looked back and made a gesture. Davidson
    hesitated and almost turned around. Brandon walked past Johnson, toward the
    parked vehicles. Davidson and Joshua walked towards Johnson, Davidson ahead and
    to the right of Joshua. Davidson pulled out a handgun and held it beside his
    right leg. When Davidson got to where Johnson was standing, still at the west
    (right) corner of the building, there was an exchange between Davidson and Johnson
    that led Johnson to take a swing at Davidson. Johnson missed. Davidson then
    shot Johnson, who ran into the Tim Hortons foyer and collapsed.

[16]

The single gunshot to Johnsons chest damaged
    his aorta and the left ventricle of his heart, and thus caused his death.

[17]

Brandon had returned to Joshuas vehicle before
    Davidson shot Johnson. After shooting Johnson, Davidson got into the front
    passenger seat of Joshuas vehicle and screamed directions at Brandon, who
    drove away. Joshua walked away from the scene and flagged a cab half a block
    away. He went in search of his car and of Brandon.

[18]

Meanwhile, Dore-Davidson pulled away from the Vida
    La Pita and drove to Joshuas place. When she got there, Davidson came out of
    Joshuas house and got into the vehicle, and they went home.

[19]

I will mention one other event that was of some
    importance to the respondents theory for first degree murder. About nine weeks
    before the shooting, there was an alleged altercation involving Joshua and Brandon
    on the one hand, and Johnson and another male on the other hand. Versions of
    this altercation varied significantly between the witnesses, including police
    officers, who gave evidence about it. The respondent relied on this earlier
    altercation as providing motive for why the appellants would want to harm
    Johnson.

[20]

None of the appellants gave evidence at trial.
    However, Joshuas two police statements were placed in evidence. The admission
    of the first statement was opposed but the admission of the second statement
    was not. The second statement was admitted as evidence upon which all of the accused
    could rely.

C.

Analysis

[21]

The appellants raise eight grounds of appeal on
    which they all rely. They are:

1.

The trial judge erred in his ruling, pursuant to
R. v. Corbett
,
    [1988] 1 S.C.R. 670,
by refusing to remove certain convictions
    on Joshuas criminal record that he sought to have removed if he were to give
    evidence.

2.

The trial judge erred in his jury instructions by failing to relate
    the evidence to the issues that the jury was called upon to determine.

3.

The trial judge erred in his jury instructions on the issue of
    motive.

4.

The trial judge erred in admitting Joshuas first statement to the
    police.

5.

The trial judge erred in admitting a compilation video made from the
    various surveillance videos relating to this matter.

6.

The convictions for first degree murder were unreasonable.

7.

The trial judge erred in his
Corbett
ruling by refusing to
    remove certain convictions on Davidsons criminal record that he sought to have
    removed if he were to give evidence.

8.

The trial judge erred in admitting Dore-Davidsons conviction for
    accessory after the fact to murder when the Crown called Dore-Davidson as a
    witness.

[22]

I conclude that the trial judge failed to relate
    the evidence to the issues in his jury instructions. Consequently, I need only
    address the second ground of appeal along with the sixth ground of appeal of
    unreasonable verdict for first degree murder.

(1)

The jury instructions

[23]

I begin with the existing authorities on a trial
    judges obligations when it comes to instructing a jury. First is this courts
    decision in
R. v. Newton
, 2017 ONCA 496, 349 C.C.C. (3d) 508.

[24]

In
Newton
, Laskin J.A. outlined the
    basic components of a proper jury instruction. He said, at para. 11:

In brief, trial judges have a broad discretion
    in how to charge a jury. Their decision about how much evidence to review, what
    structure to use and how to organize the charge falls within that discretion.
    But, ideally, the charge should contain some basic components. In addition to
    general instructions on the presumption of innocence, the burden of proof, how
    to assess the credibility and reliability of witnesses' testimony and the like,
    the charge on the particular case should contain the following five components:

i. the legal framework, typically the elements
    of the offence or offences with which the accused is charged;

ii. the factual issues arising out of the
    legal framework that the jury must resolve;

iii. the material evidence relevant to these
    issues;

iv. the position of the Crown and defence on
    these issues; and

v. the evidence supporting each of their
    positions on these issues.

[25]

While
Newton
was released after the
    jury instructions were delivered in this case, the principles outlined in
Newton
are not new. They can be found in many different cases over the years. Indeed, these
    cases are mentioned in
Newton
, and include
R. v. Azoulay
,
    [1952] 2 S.C.R. 495, where Taschereau J. made the same point. He reviewed a
    number of earlier decisions that did as well. Perhaps the most succinct
    expression of the principle, for the purpose of this case, is in this courts
    decision in
Rex v. Stephen, Allen and Douglas
, [1944] O.R. 339 (C.A.),
    at p. 352, where Kellock J.A. said: It is not sufficient that the whole
    evidence be left to the jury in bulk for valuation (citations omitted).

[26]

There is no issue taken with the trial judges recitation
    of the four essential elements of first degree murder. Rather, it is the trial
    judges repetition of the evidence in whole, and without any correlation of
    which parts related to which elements, that forms the gravamen of the complaint
    here.

[27]

By the time that the jury received the case, the
    issues had been significantly narrowed, largely as a result of Davidsons
    admission that he had shot Johnson. Among other issues that his admission
    resolved was the cause of death. Consequently, when the trial judge reached the
    first element of the offence of first degree murder, that is the cause of
    death, he could have simply said that, due to Davidsons admission, the jury
    would likely have little difficulty in concluding that Davidson caused Johnsons
    death.

[28]

However, that is not what the trial judge did.
    Rather, it was, at this stage, that the trial judge proceeded to review the
    evidence of each and every witness at the trial, over 145 pages of transcript. The
    trial judge did not make any effort to relate any of this evidence to
    particular elements of the offence or to particular issues raised. Instead, the
    trial judge simply repeated the evidence from start to finish.

[29]

In taking this approach, the trial judge fell
    into the very error that Doherty J.A. identified in
R. v. MacKinnon
(1999), 43 O.R. (3d) 378 (C.A.), at para. 29, where he said:

The fourth requirement, that is the relating
    of the evidence relevant to the positions of the parties on the contested
    issues, is most often achieved by a review of the evidence in the context of
    the various issues and an indication of what parts of the evidence may support
    the respective positions of the parties.
By a review of
    the evidence, I do not mean a lengthy regurgitation of large parts of the trial
    judge's notes of the testimony of various witnesses
. I mean references
    to the evidence which are sufficient in the context of the case and the
    entirety of the charge to alert the jury to the particular parts of the
    evidence which are significant to particular issues and to the positions taken
    by the parties on those issues. [Emphasis added.]

[30]

The fundamental purpose of jury instructions is
    to assist the jury. The instructions should serve to help the jury understand
    the elements of the offence(s); the issues raised for determination; and the evidence
    that relates to each of those issues. A bulk recitation of all the evidence
    heard at the trial, without discrimination or analysis, is of no assistance to
    the jury. After all, the jury heard all the same evidence that the trial judge
    heard. What they need from both counsel and the trial judge, but especially
    from the trial judge, is an isolation of the evidence that is relevant to a
    particular issue. This is one of the most important tasks that a trial judge
    must undertake in crafting their jury instructions. As Watt J.A. said in
R.
    v. P.J.B.,
2012 ONCA 730, 298 O.A.C. 267, at para. 44:

Judicial
relation
of the evidence to
    the issues improves jurors understanding of the particular aspects of the
    evidence that bear on their decision on each essential issue in the case. [Emphasis
    in original.]

[31]

Defence counsel objected to the trial judges
    approach during the pre-charge conference. They pointed out, for example, that the
    instructions failed to differentiate between the four accused. They also
    pointed out that the bulk recitation of the evidence under the first element of
    the offence, namely causation, was problematic. By way of example, it meant
    that the evidence of witnesses who had nothing to do with the causation element
    were included in the recitation under that heading. They urged the trial judge
    to take a different approach, to at least group the evidence in relation to
    the issues to which the evidence related. The trial judges response to these
    concerns is telling with respect to his failure to understand his fundamental task.
    The trial judge said, at one point:

I mean, I have to summarize the evidence the
    evidenced [sic] and I have to put their evidence in, whats your proposal as to
    how it should be different?

[32]

The trial judge missed the fundamental point,
    which is, that he did not have to recite every piece of evidence. As is often
    the case when the evidence is complete, some of the evidence became irrelevant
    to any issue that the jury had to decide. Nothing was to be gained by reciting
    evidence that did not relate to a live issue. Doing so risked confusion. That
    is why it was so important, especially in a lengthy trial such as this one, for
    the trial judge to have separated the relevant evidence from the irrelevant
    evidence to assist the jury.

[33]

The trial judges problematic approach to his
    instructions becomes more evident when one gets to the other elements of the
    offence of first degree murder. The second element is whether the death was
    caused unlawfully. This was another element of the offence that was not really
    in issue. It was admitted that Davidson had shot Johnson in the chest at close
    range. There could not be any doubt that Johnsons death was caused unlawfully
    by Davidsons act. However, the trial judge did not make that point. Rather, he
    simply recited the standard instruction on this element and then referred the
    jury to the various surveillance videos that the jury had watched as well as
    the evidence already summarized at great length under the first question,
    Element 1. The trial judge then mentioned the medical evidence, which went to
    the first element rather than the second, and the fact that Johnson had a flip
    knife in his front pocket. It is not clear what this piece of evidence had to
    do with this element.

[34]

The problems continued when the next two
    elements were addressed. The third element, the state of mind for murder, was
    very much a live issue in the trial. The trial judges recitation of the
    evidence under this element began with Consider the evidence already
    summarized under the two previous elements, Elements 1 and 2. The trial judge
    then made brief reference to the issue of intoxication and one reference to a
    piece of post-offence conduct.

[35]

On the fourth element, that is planning and
    deliberation, which was also a very live issue in the trial, the trial judges recitation
    of the evidence began with:

Consider the evidence already reviewed under
    Elements 1 through 3.

Consider the surveillance videos, phone
    records and contact by the various accused prior to the shooting.

The trial judge then added a reference
    to the same piece of post-offence conduct that he had referred to under the
    third element. None of this had any potential to assist the jury in terms of
    the issues that they had to decide.

[36]

Another significant issue that the jury had to
    determine was party liability. Indeed, it was the Crowns position that Joshua,
    Brandon and Rebelo were guilty of first degree murder, not as principals, but
    as aiders and/or abettors. The trial judge gave the standard instructions to
    the jury regarding aiders and abettors. There is no issue with the adequacy of
    the standard instructions. However, having given those standard instructions,
    the trial judge did not then mention any evidence that related to whether any
    of these accused could be found to be either an aider or an abettor. Rather,
    after setting out the standard instructions, the trial judge proceeded to
    address the issue of intoxication as it related to the state of mind requirement
    for the offence of murder.

[37]

As a result, the jury was not given any
    assistance in terms of what they should consider in deciding whether they could
    be satisfied, beyond a reasonable doubt, that any of the accused were parties
    to the murder of Johnson. Party liability is, of course, not an issue with
    which jurors are likely to be familiar.

[38]

The respondent says that the structure of the
    jury instructions is up to the trial judge to determine. The respondent also submits
    that defence counsel ultimately agreed with the manner in which the trial judge
    chose to give his instructions. In terms of that latter submission, no fair
    review of the exchanges between counsel and the trial judge at the pre-charge
    conference could reasonably lead to the conclusion that defence counsel
    approved of the trial judges approach. Rather, it is evident that, after
    making their objections, defence counsel simply surrendered to the reality that
    the trial judge was unwilling to alter his proposed approach. On this point,
    the respondents suggestion that something is to be taken by defence counsels failure
    to renew their objections after the instructions were given ignores one of the
    fundamental purposes of the pre-charge conference. Having made their objections
    at that time, other than perhaps stating that they stood by their objections,
    there was no reason for counsel to have to repeat their objections after the
    instructions were given. Indeed, had they attempted to do so, the trial judge
    would have been entitled to shut them down.

[39]

The respondent is correct that the structure of
    the jury instructions, and the degree to which the evidence is reviewed and in
    what manner, are all matters within the trial judges discretion. Yet, the fact
    remains that the approach ultimately taken must fulfill the purpose of jury
    instructions. In reviewing the adequacy of the instructions, the task for this
    court is as described by Doherty J.A. in
R. v. Figliola
, 2018 ONCA 578,
    141 O.R. (3d) 662, at para. 12:

In this court, however, the question is not
    whether the trial judge chose the most effective method of instruction, but
    whether his instructions, as given, adequately related the evidence to the
    issues.

[40]

In my view, the trial judges instructions to
    the jury plainly failed to accomplish their central task, that is, to provide
    the jury with a summary of the evidence that was relevant to the issues that
    they had to determine. The trial judges instructions were simply inadequate.
    They failed in the same way that the instructions failed in
R. v. P.J.B.
,
    which Watt J.A. described at para. 58:

What the charge as a whole lacked was a
    focussed reference to the factual issues to be resolved in connection with each
    count (as ultimately described), a statement of the positions of the parties in
    relation to the count, and a review of the significant features of the evidence
    that bore on the parties positions on each count.

[41]

There is no choice in this situation but to
    order a new trial. This court cannot be satisfied that the jury properly
    understood the issues, and the evidence relating to those issues, such as to be
    able to conclude that they arrived at proper verdicts.

[42]

Given this conclusion, I must address the
    unreasonable verdict ground, since it determines whether any new trial should
    be on the offence of first degree murder or only on the offence of second
    degree murder.

(2)

Unreasonable verdict

[43]

The appellants assert that the conviction for
    first degree murder was unreasonable. They assert that planning and
    deliberation was not the only reasonable inference that could be drawn from the
    evidence and, thus, this element of first degree murder was not proven beyond a
    reasonable doubt.

[44]

The basic principle applicable to this ground of
    appeal is set out in
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000,
    at para. 55, where Cromwell J. said:

A verdict is reasonable if it is one that a
    properly instructed jury acting judicially could reasonably have rendered.
    Applying this standard requires the appellate court to re-examine and to some
    extent reweigh and consider the effect of the evidence. This limited weighing
    of the evidence on appeal must be done in light of the standard of proof in a
    criminal case. Where the Crown's case depends on circumstantial evidence, the
    question becomes whether the trier of fact, acting judicially, could reasonably
    be satisfied that the accused's guilt was the only reasonable conclusion
    available on the totality of the evidence. [Citations omitted.]

[45]

The Crowns theory in this case was that one, or
    both, of the Barreira brothers had a beef with Johnson. They argued that Brandon,
    at least, was aware that Johnson was in the Hess district the night of the
    shooting. He contacted Joshua. Rebelo was with Joshua. Prior to the shooting, there
    are numerous calls between Rebelo and Davidson. Davidson then comes down to the
    Hess district. Brandon, Joshua, Rebelo, Davidson, and others, get into two
    vehicles that then circle around the area. The vehicles eventually return to
    the Vida La Pita where Johnson is present. Brandon, Joshua and Davidson exit
    the vehicles. Joshua and Davidson go around the back of the building while
    Brandon waits at the corner of the building. Davidson has a gun.

[46]

Seconds after Johnson leaves the Vida La Pita,
    Brandon is seen on the surveillance videos signalling Joshua and Davidson. At
    the same time, Rebelo exits the Jeep, approaches Johnson, and engages him in
    conversation. Davidson and Joshua then approach Johnson while Brandon runs to Joshuas
    vehicle. Davidson has the gun out of his pocket, down at his side. When
    Davidson reaches Johnson, Johnson takes a swing at Davidson. Davidson then
    fires one shot into Johnsons chest. Everyone flees the scene as Johnson runs
    to the Tim Hortons and collapses.

[47]

A reasonable inference could arise from those
    facts that this was a planned and deliberate murder of Johnson. That said, I understand
    that the defence offers other explanations for these events, particularly, that
    Joshua and Davidson were involved in a drug deal at the time that culminated
    around the back of the Vida La Pita. There is no evidence that anyone knew that
    Davidson had a gun. There appears to have been a pre-existing problem between
    Davidson and Johnson that only became known to the others when Davidson and
    Joshua were approaching Johnson and Davidson said Ive got beef with this guy.
    Davidson then said to Johnson remember me. Johnson responded you fucking
    goof and took a swing at Davidson. The defence argued that Davidson shot
    Johnson as an impulsive reaction to Johnson taking a swing at him.

[48]

That there are competing explanations for the
    events does not change the fact that the Crowns theory is a reasonable
    inference on the evidence. It was up to the jury to decide if they accepted the
    inference advanced by the Crown as the only reasonable inference to be drawn. It
    should be noted, on this point, that circumstantial evidence does not have to
    totally exclude other conceivable inferences. However, those alternative
    inferences must be reasonable, not just possible:
Villaroman
, at para.
    42. The jury did not have evidence from any of the accused with respect to
    these events, other than Joshuas two statements to the police. It was open to
    the jury to conclude that the inference urged by the defence was nothing more
    than one of speculation.

[49]

In deciding this issue on appeal, it is not the
    role of this court to substitute its view of the possible inferences to that
    reached by the jury. Rather, the proper approach for this court is summarized
    by Cromwell J. in
Villaroman
at para. 71:

[I]t is fundamentally for the trier of fact to
    draw the line in each case that separates reasonable doubt from speculation.
    The trier of fact's assessment can be set aside only where it is unreasonable.
    While the Crown's case was not overwhelming, my view is that it was reasonable
    for the judge to conclude that the evidence as a whole excluded all reasonable
    alternatives to guilt.

[50]

It was open to the jury, in this case, to be
    satisfied that the only reasonable inference to be drawn from the evidence was
    that this was a planned and deliberate murder. The objective evidence from the
    surveillance videos may well have figured prominently in the jurys view on
    this point. At the same time, in so concluding, the jury could have viewed the inference
    suggested by the defence to be speculative, in light of the lack of evidence
    offered in support of it. I cannot say that the jury would have been acting
    unreasonably, if they so concluded.

[51]

This ground of appeal fails which, in turn,
    means that any new trial must include the offence of first degree murder.

D.

Conclusion

[52]

I would allow the conviction appeals and order a
    new trial on the charge of first degree murder. It will be up to the judge on
    the second trial to determine afresh the other issues raised in this appeal. They
    are not bound by the rulings made by the judge on the first trial on any of those
    issues.

Released: B.W.M March 18, 2020

I.V.B. Nordheimer J.A.

I agree. C.W. Hourigan
    J.A.

I agree. B.W. Miller J.A.


