R. v. Barreira et al., 2015 ONCJ 629

COURT FILE No.: 14-4357 CITATION: R. v. Barreira et al. , 2015 ONCJ 629 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — BRANDON BARREIRA ET AL Before Justice P.H.M. Agro Heard on Dec. 1, 2014, Jan. 5, 6, 7, 8, 12, 13, 15, 16, 19, 20, 22, 26, 27, 29, Feb. 3, 4, March 26, April 9, May 4, 2015 Reasons for Judgment released on June 23 rd , 2015 Ms. C. Gzik, Ms. K. Malkovitch ................................................................................. for the Crown S.

Smordin................................................................................................ for the accused Brandon Barreira D. Moore....................................................................................................... for the accused Joshua Barreira K. Edward................................................................................................... for the accused Chad Davidson A. Confente................................................................................................. for the accused Louis Rebelo .........

Agro J.: REASONS FOR RULING [ 1 ] The accused stand charged with first degree murder in the death of Tyler Johnson who died of a gunshot wound to the chest on 30 November 2013. [ 2 ] The accused Chad Davidson, through counsel, conceded committal on the charge of first degree murder during the course of this preliminary hearing. Surveillance videotapes of the murder scene tendered by the Crown show Davidson, with firearm in hand, shoot Johnson in the chest at close range. The remaining accused contest committal on the charge as set out.

THEORY OF THE CROWN [ 3 ] It is the theory of the Crown that for reasons unknown there was animus between Johnson and Brandon and Joshua Barreira, who are brothers [1] , and that they, with the assistance of Louis Rebelo, enlisted the support of Chad Davidson, whom they knew to have a firearm, to plan and deliberate the ambush and murder of Tyler Johnson. APPLICABLE LAW A. MURDER [ 4 ] A person commits homicide when, directly or indirectly, by any means, he causes the death of another human being: section 222(1) Criminal Code of Canada .

A person commits culpable homicide when that death is caused by an unlawful act [2] : section 222(5) of the Code. [ 5 ] Culpable homicide is murder where the person who causes the death meaning to do so or meaning to cause bodily harm that he knows is likely to cause death and is reckless whether death ensues or not:

section 229 of the Code. [ 6 ] When that murder is planned and deliberate, it is murder in the first degree: section 231(2). A murder that is not planned or deliberate is second degree murder: section 231(5).

B. FIRST DEGREE MURDER [7] The cumulative effects of a “planned and deliberate murder” were discussed in R. v. Nygaard (SCC), [1989] 2 SCR1074, citing with approval the jury instruction og Gale, J. in the unreported decision of R. v. Widdifield (1961), Ontario Supreme Courtexcerpted in 6 Crim. L. Q. 152. [8] “Planned” is to be given its natural meaning of a calculated scheme which has been carefully thought out.

It need not becomplicated. [9] “Deliberate” is to be given its natural meaning as “considered”, “not impulsive” implying an accused took the time to weigh theadvantages and disadvantages before the act of murder starts. [10] A plan may be a simple one and there is no minimum time required between the plan and its execution. The simpler the plan,the easier it is to formulate and execute: R. v. Singh, [2005] O.J. No. 1318 (SCJ); R. v. Weese, 2010 ONSC 3589 , [2010] O.J.No. 2651 (SCJ). Nor is there a requirement that the planning and deliberation take place independently and sequentially. [11] In R. v.

Turningrobe, 2007 ABCA 236 , [2007] A.J. No. 771 (CA), the court held that a jury may conclude that amurder was planned and deliberate on the basis of circumstantial evidence, even where other inferences may be possible. At para 13, thecourt said: It is not required that the circumstances of the accused are inconsistent with any other rational conclusion, so long as thejury is convinced be yond a reasonable doubt that the murder was planned and deliberate. C. MOTIVE [12] It has been long recognized that motive only provides a reason why an accused may have committed an offence.

It is not anessential element of any offence but is a circumstance to be considered along with other evidence: R. v. Lewis, (SCC),[1979] 2 S.C.R. 821, 10 C.R. (3d) 299, 47 C.C.C. (2d) 24. D. PARTIES AND PARTY LIABILITY [13]

Section 21 of the Code defines a “party” to an offence: 21(2) Everyone 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) abet any person in committing it. [14] Mere presence at the scene of the crime does not prove culpable participation in the crime but presence along with thecumulative effects of other facts, such as any act that facilitates the offence or one that prevents interference with the accomplishment ofthe offence may establish an accused’s guilt as a party. An abettor, by words of deeds encourages the principal to the offence to commitit: R. v. Jackson, 2007 SCC 52 , [2007] 3 S.C.R. 514; R. v. Dunlop, [1979] 2 S.C.R.; R. v.

Almarales (2008), 2008 ONCA 692, 237 C.C.C. (3d) 148 (ONCA). [15] An aider or abettor need not share the intent to commit the crime but must know the principal intended to commit it and doeswith the intention to assisting the perpetrator: R. v. Briscoe. 2010 SCC 13 , [2010] 1 S.C.R. 411[3]. [16] As long as the person aiding and abetting the offence shares that intent, namely the causing of bodily harm that is likely tocause death and being reckless as to whether death ensues or not, party liability for this offence is made out. E.

POST OFFENCE CONDUCT [17] Post offence conduct of an accused may be considered in the determination whether a murder was planned and deliberate, butthat evidence must be considered in consideration of all other evidence in its totality: R. v. Poitras, (ON CA), [2002]O.J. No. 25 (C.A.). F. TEST FOR COMMITTAL [18] The test for committal under s. 548(1) of the Criminal Code is not a particularly onerous one. The standard of sufficiency asoutlined in The United States of America v.

Sheppard (1997), (SCC), 30 C.C.C. (2d) 424 (S.C.C.), at p. 427, requires meto consider only “whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty”and committal must ensue “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”. [19] This test is the same whether the evidence is direct or circumstantial.

Where the evidence is direct, committal will be ordered;if circumstantial, the determination is whether the evidence is reasonably capable of supporting inferences the Crown would ask a trier of fact to draw: R. v. Arcuri, 2001 SCC 54 , [2001] 203 D.L.R. (4th) 20 (S.C.C.). [20] There is no weighing of competing inferences and when there is more than one inference to be drawn, only inferences in favourof the Crown are to be considered: The Queen v. Dubois: (1986), (SCC), 25 C.C.C. (3d) 221 (S.C.C.) and R. v. Magno,[2005] O.J. No. 2590, (Ont. C.A.) and R. v. Sazant, [2004] S.C.J.

No. 77. [21] Nor is and assessment of the credibility, reliability or persuasive value of the evidence in the sense of assessing its quality opento a Justice on a Preliminary Inquiry: Mezzo v. The Queen, (SCC), [1986] 27 C.C.C. (3d) 97 (S.C.C.) and R. v.Deschamplain, [2004] S.C.J. No. 77 (S.C.C.). [22] Various items of evidence must not be looked at in isolation and whether or not there may be another rational explanation for

the evidence other than the guilt of an accused is an issue to be resolved only by the trier of fact: R. v. Campbell (ONCA), [1999] O.J. No. 4041 (Ont. C.A.). [23] The test for committal is a low threshold test. A scintilla of evidence is sufficient: R. v. Skogman and The Queen, (SCC), 13 C.C.C. (3d) 161 at p. 173. [24] It is with these cautions in mind that I have considered the evidence tendered by the Crown on this preliminary inquiry. G. EVIDENCE FOR THE CROWN

a) Events leading up to the offence: [25] These are the facts that are borne out by the evidence from public and private surveillance videotapes, still screen shots andphotographs obtained from the Hess Village area[4], cell phone records for phones registered to or proven to be associated with theaccused[5] and the testimony of some witnesses[6]. [26] The testimony of the witnesses Moore, Kendall, Ferreira and Sousa was hampered by poor recollection, in part due to excessivealcohol consumption on the night and early morning hours of these events and in part because of a discernible reluctance to testify.

However, it is not for a Justice on a preliminary hearing to assess the quality of their testimony. [27] On the night of 29 November 2013 and the early morning hours of 30 November 2013, Brandon with friends James Kendalland Marcello Sousa were in the club district in this city known as Hess Village.

Tyler Johnson and Ricky Moore were also in HessVillage. [28] Both groups went to a club called “Hush” but there is no evidence of any interaction between the two groups while at thatpremise. [29] After bars closed at approximately 2:29 am, Brandon and friends went to Smoke’s Poutinerie. [30] Johnson and Moore went into the Poutinerie at 2:43am. [31] There was a group of males at the Poutinerie whose identity was unknown to the witness Sousa, who were looking at Brandonand his friends causing Sousa some unease.

Their presence was discussed amongst Brandon, Sousa and Kendall. [32] There is no direct evidence that Johnson was amongst those four. [33] Brandon appeared to be nervous while at the Poutinerie and announced to his friends that they should all leave. [34] Cell phone records disclose a call at 2:46 am from Brandon’s cell phone to Joshua’s cell phone. [35] Joshua and Louis Rebelo were in another area of the city at another bar/restaurant with Roberto Ferreira. [36] After that call, Brandon and friends left the Poutinerie and walked to Tim Horton’s located on King Street West east of HessStreet. [37] Cell phone records disclose a second call from Brandon’s phone to Joshua’s cell phone at 2:54 am.

After that second call,Brandon no longer appears to be nervous or upset. [38] Between 2:47 am and 3:04 am six calls take place between Louis Rebelo’s cell phone and that of Ashley Davidson/ChadDavidson. Triangulation maps plot the Davidson cell phone moving from a Hamilton mountain location to the downtown core over thecourse of those calls. [39] Video surveillance at 2:59 am shows Joshua arriving at the Tim Horton’s driving a dark coloured Jaguar.

Brandon, JamesKendall and Marcello Sousa get into the rear seat of that car. [40] The Jaguar is owned by Joshua’s then girlfriend, Jennifer Dagenais. [41] At 3:03 am Joshua, followed by Roberto Ferreira get out of the Jaguar and go into the Tim Horton’s. Louis Rebelo gets out ofthe Jaguar and goes into Tim Horton’s at 3:05 am. [42] At 3:04 am a dark coloured Jeep is captured arriving at the Tim Horton’s. It parks directly beside the Jaguar. Chad Davidsonis in the Jeep.

That vehicle is owned by Ashley Dore, Chad Davidson’s then girlfriend. [43] There is some brief interaction among all of these parties. [44] They leave the parking lot heading westbound on King Street in two vehicles: in the Jaguar driven by Joshua are ChadDavidson, in the front passenger seat, and Brandon and his friends Kendall and Sousa in the rear; in a Jeep driven by an unidentifiedfemale is Louis Rebelo and his friend Roberto Ferreira. [45] At 3:08 am, a cell phone call is placed from Louis Rebelo’s phone to Joshua’s phone. [46] At the same time, Tyler Johnson and Richard Moore walk northbound on Hess Street, turning east on King Street entering theshwarma shop “Vida La Pita” at approximately 3:09 am.

That business is in a small strip plaza adjacent to the eastern boundary of theTim Horton’s parking lot.

[ 47 ] Shortly after leaving the Horton’s parking lot, James Kendall, in the back seat of the Jaguar, overhears, without attribution, the words “that’s him” or “is that him” and senses some commotion in the car. [ 48 ] At 3:09 am, the Jaguar returns to the Tim Horton’s parking lot and parks at the east boundary of that lot facing the west wall of Vida La Pita. The Jaguar was left running with the keys in the ignition. [ 49 ] The Barreira brothers and Chad Davidson get out of the Jaguar leaving Kendall and Sousa inside.

The Barreiras and Davidson are shown on video surveillance walking eastbound from the Jaguar along the storefront of Vida La Pita. All three are wearing hoodies and have those hoods up. [ 50 ] The Barreiras glance into Vida La Pita as they pass by.

The group continues eastbound past the adjacent business to the east, Big Bee Variety, congregating around the northeast corner of Big Bee out of sight of the entrance of Vida La Pita. [ 51 ] Within less than two minutes of the Barreiras and Davidson arriving, the Jeep in which Rebelo is a passenger returns to the Tim Horton’s parking lot and stops facing the wall and entrance to Vida La Pita. [ 52 ] Brandon, coming from behind the Big Bee Variety, is shown on video surveillance turning the northeast corner of that building and running westbound across the storefronts of the Big Bee and Vida La Pita to the area where the Jeep was stopped.

Within 10 seconds, he runs back eastbound past those premises, this time with his hoodie down. [ 53 ] At 3:10:41am Johnson and Moore are recorded leaving Vida La Pita turning westbound toward Tim Horton’s lot. Johnson is immediately intercepted by Louis Rebelo who engages him in conversation. Moore carries on toward Tim Horton’s where his girlfriend, Mallory Turco is waiting to drive them home. [ 54 ] Almost simultaneously (at 3:10:43 am), Brandon is seen on video coming out from behind the northeast corner wall of Big Bee followed by Davidson and Joshua.

Brandon appears to be directing them with hand signals. [ 55 ] The footage also shows a handgun in Davidson’s right hand. [ 56 ] At 3:10:57 am, Brandon runs by Tyler Johnson whose attention turns to Davidson. [ 57 ] Johnson is recorded taking a swing at Davidson, who retreats a step and fires his gun shooting Johnson in the chest. [ 58 ] Just before Moore hears gunshots, he hears someone call out “T”, the nickname by which Johnson was popularly known. [ 59 ] Johnson ran by Moore toward Tim Horton’s where he is seen on video to have collapsed in the vestibule.

b) Post offence events: [ 60 ] The video surveillance tapes do not show any reaction by the Barreiras or Rebelo to the shooting. They go their separate ways in an unhurried manner without offering any assistance to Johnson. [ 61 ] Davidson and Brandon leave the scene in the Jaguar with Kendall and Sousa in the rear of the vehicle.

Brandon is driving and Davidson giving directions. [ 62 ] The atmosphere in the car is described by Kendall as loud and rowdy as if they had just won a fight. [ 63 ] Rebelo gets back into the Jeep and leaves the scene with Ferreira at 3:11 am. [ 64 ] At the same time, Joshua is recorded calmly walking from behind the Big Bee/ Vida La Pita plaza westbound on King toward Hess. He gets into a taxi at King and Hess streets. [ 65 ] At 3:17 am, there is a call from Rebelo’s phone to Joshua’s phone.

That is followed by a call at 3:19 am from the Davidson phone to Rebelo. [ 66 ] Ferreira is dropped off near Rebelo’s home and gets into a taxi. He has had no further contact with Rebelo. [ 67 ] Once Kendall got home, he heard from Brandon who relayed a message that the shooter wanted to talk to him. Kendall was frightened and moved out of his home indefinitely because he knew he was present for a murder. [ 68 ] At 4:03 am, Brandon called his mother Marta Leite to request that she pick him up in Hamilton.

Leite and her partner Howard Puterman picked up Brandon, then Rebelo on Wentworth Street in Hamilton in Puterman’s Ford Explorer. They headed back to Cambridge taking the York Boulevard exit onto the eastbound Highway 403. [ 69 ] At approximately 6:20 am, Joshua and Jennifer Dagenais are in a single motor vehicle accident on the eastbound Highway 403 just west of the York Boulevard ramp.

The Jaguar is totaled. [ 70 ] The Puterman vehicle stopped at the accident scene as they came upon it and before the arrival of uniform police, Joshua and Dagenais got into the Puterman’s vehicle and continued the drive to Marta Leite’s home in Cambridge. [ 71 ] En route to Cambridge, Joshua told Leite he needed to get out of Hamilton and stay at her home. [ 72 ] Rebelo stayed at the Leite residence one night. Leite drove him back to Hamilton with Dagenais who collected clothing for herself and Joshua. Only Dagenais returned to Cambridge with Leite.

[ 73 ] Joshua and Dagenais stayed a few days. [ 74 ] After the murder, Hamilton Police Services made a public appeal for information. Some witnesses came forward. The Barreira brothers and Rebelo did not. [ 75 ] Brandon remained in Cambridge at his mother’s home until his arrest on 11 December 2014. The clothing Brandon wore as shown in video surveillance tapes from the night of the murder was located in the Cambridge home. [ 76 ] Approximately a week after the murder, Chad Davidson, Ashley Dore, Joshua and Dagenais appeared at Danielle Waun’s home asking to stay overnight.

While there, Waun overheard conversations between the two couples about marriage. Davidson and Dore were encouraging Joshua and Dagenais to get married so that the two women, once married to their respective boyfriends, would not be required to testify against them. [ 77 ] On 13 December 2013, after obtaining sequentially numbered marriage licences at Hamilton City Hall, Chad Davidson married Ashley Dore and Joshua married Jennifer Dagenais. [ 78 ] The two couples were married by the same offieiant and each acted as witnesses for the other. There were no family members or friends present for the ceremony.

Leite did not learn of her son Joshua’s marriage until after it had taken place. [ 79 ] Chad Davidson was arrested 14 February 2014. The gun he used has never been recovered nor the clothing he was seen to be wearing that night. [ 80 ] Joshua was also arrested on 14 February 2014. The black hooded jacket he was wearing on 29 November 2013 was not recovered. [ 81 ] Rebelo was arrested on 20 February 2014. The clothing he wore was not recovered.

c) Other Relevant Evidence: [ 82 ] There is other evidence that fleshes out the relationship among the accused and the victim and the accused: [ 83 ] Leite knew Davidson from prior years when he would sell stolen property to her and her former husband, Joe Barreira, the father of Joshua and Brandon.

These transactions took place at the Barreira home when the brothers were young. [ 84 ] In 2007, Davidson and another invaded Leite’s home where she lived with Brandon and held her at gunpoint. [ 85 ] Sometime later, Leite told Joshua about this event when she saw Davidson coming out of the residence he shared with Dagenais at 124 Cathcart Street in Hamilton. [ 86 ] Joshua sold drugs from that premise and Chad Davidson frequently purchased drugs from him at that address. [ 87 ] After his arrest, Joshua told Leite he knew Johnson and had had lunch with him a few weeks before the murder. [ 88 ] Although Brandon’s official residence was with his mother in Cambridge, he would sometimes stay with Joshua at Cathcart. [ 89 ] On the night of 27 September and early morning hours of 28 September 2013, there was an altercation at Hess Village involving Johnson and the Barreira brothers. [ 90 ] Rebelo has known Joshua since elementary school and helped him with renovations to the Cathcart residence. [ 91 ] Rebelo was an acquaintance of Johnson’s and sometimes socialized with him. [ 92 ] There is no evidence tendered by the Crown of any connection between Davidson and Johnson. [ 93 ] It is reasonable to infer from this evidence of the associations of the accused with each other and Tyler Johnson, that the part of the accused’s plan was to use two vehicles to locate Johnson: one in which Davidson was with the Barreiras as they could identify Johnson to Davidson, and the other with Rebelo in Ashley Dore’s Jeep as he too could identify Johnson and communicate with the others. [ 94 ] It is also reasonable to infer that Rebelo remained separate from the Barreiras as he was on good terms with Johnson and could intercept him without raising suspicion.

H. APPLICATION OF THE EVIDENCE TO EACH OF THE ACCUSED [ 95 ] Although there is direct evidence that puts each of these accused at the murder scene, the evidence for the Crown on the essential elements of first degree murder and pary liability is largely circumstantial. [ 96 ] An examination of the evidence tendered by the Crown as it applies to each of these accused is required.

A) Brandon Barreira [ 97 ] It was Brandon’s call to Joshua at 2:46 am that results in each of the accused gathering at Tim Horton’s on King Street. [ 98 ] It is reasonable to infer that that call was prompted by Brandon seeing Tyler Johnson at Smoke’s Poutinerie and that the reason for notifying his brother was the animus between them and Johnson after the September 2013 altercation.

[ 99 ] It is reasonable to infer that Brandon intended a confrontation with Johnson and summoned his brother to Hess Village area for that purpose. [ 100 ] If the phone calls to Joshua were simply to get a ride home (which at that time was in Cambridge), the unfolding events and Brandon’s participation in them belie that suggestion. [ 101 ] There is no evidence that Brandon asked that Chad Davidson come to Tim Horton’s. [ 102 ] However, it is reasonable to infer from the evidence that Brandon knew of Joshua’s association with Davidson and was aware from the home invasion experience that Chad Davidson had access to a firearm. [ 103 ] Brandon was in the Jaguar with Joshua and Davidson when it circled the Hess Village area.

The evidence supports the inference that Brandon, Joshua and Davidson were looking to locate Johnson. This inference is supported by the testimony of Kendall. [ 104 ] While in the Jaguar, there was ample opportunity to further a plan to intercept and confront Johnson. [ 105 ] The use of two vehicles and cell phone communication between them while circling the Hess Village area also supports that inference. [ 106 ] Once Johnson and Moore were inside Vida La Pita, it was Brandon who acted as lookout and co-ordinator. [ 107 ] On two occasions when he passed Vida La Pita, he had his hood up.

On the third his hood was down as he looked into the premise, making no further attempt to hide his identity. [ 108 ] It was Brandon who directed Davidson and Joshua from behind the Big Bee to its entrance where Johnson was intercepted by Rebelo, signalling for them to follow. [ 109 ] It is argued by Brandon’s cousel that there is no evidence that her client was aware the Davidson was coming or that he was bringing a gun to the scene. [ 110 ] Certainly there is no direct evidence but there is circumstantial evidence upon which such an inference can be drawn.

The evidence points to two opportunities during which that knowledge could come to Brandon. [ 111 ] The first was before Davidson’s arrival. Brandon made two phone calls to Joshua before he and his friends got to Tim Horton’s, one at 2:46 am and the second at 2:54 am.

By the time Brandon had connected with Joshua the second time, Rebelo, who was with Joshua, had called Davidson 4 times. [ 112 ] It is reasonable to infer that during the second communication with his brother, Brandon learned that Joshua was coming with Rebelo and Davidson who was bringing a gun. [ 113 ] This inference is supported by Kendall’s testimony that Brandon was no longer nervous or upset by the time he got to Tim Horton’s. [ 114 ] The second was when Brandon was in the Jaguar with Joshua and Davidson seeking out Johnson.

It is reasonable to infer that the presence of the gun was disclosed at that time. [ 115 ] If Brandon simply wanted a physical altercation with Johnson, he had Kendall and Sousa with him and need not wait for Joshua or Davidson. There is evidence that Joshua has some disability to one of his arms that would restrict his effectiveness in a physical fight. Joshua alone would have been of little help.

Davidson with a gun was essential to the plan. [ 116 ] Brandon was privy to and a party to the plan that began on the telephone, was further formulated in the Tim Horton’s parking lot and in the Jaguar and was finalized behind the Big Bee. The evidence tendered by the Crown suggests he did not resile from that plan or its execution despite opportunities to do so. [ 117 ] Brandon’s post offence conduct also informs his deliberation of the plan. [ 118 ] He offered no assistance to Johnson despite his being shot right in front of him.

When he and Davidson got back in the Jaguar, Kendall described the atmosphere as loud and rowdy, like they had just won a fight. [ 119 ] His flight to Cambridge along with Joshua and Rebelo also informs his knowledge of the plan and intent to see it through.

B) Joshua Barreira [ 120 ] There is evidence that Joshua knew Johnson and that there had been some prior confrontation involving the Barreiras and Johnson only two months before the murder. [ 121 ] It can be inferred that Joshua had reason to respond to his brother’s call at 2:46 am. [ 122 ] That he was there to provide a ride home is simply not borne out by the facts.

He intended to confront and settle matters with Johnson, not take Rebelo, Davidson and Brandon’s friends to Cambridge. [ 123 ] Joshua’s injured arm imposes restrictions that make a purely physical confrontation with Johnson undesirable. [ 124 ] Joshua is with Rebelo who initiates and makes multiple calls to Davidson before getting to Tim Horton’s. Joshua, and others, wait for Davidson’s arrival before they leave Tim Horton’s to look for Johnson.

[ 125 ] This leads to the inference that Joshua was awaiting Davidson’s arrival with a gun. [ 126 ] When Davidson arrives, Joshua gets him in his vehicle and along with Brandon, starts actively looking for Johnson.

Once Johnson is located in the Vida La Pita store, Joshua walks by with his hood up to disguise his identity. [ 127 ] He assembles with Brandon and Davidson behind the Big Bee which suggests that he is awaiting the next part of the plan, Rebelo’s interception of Johnson at the entrance of Vida La Pita. [ 128 ] On Brandon’s instruction, Joshua walks forward toward Johnson with Davidson who is holding a gun.

The inference to be drawn is that Joshua is directing the murder. [ 129 ] Joshua’s post offence conduct speaks to his knowledge and intent. [ 130 ] Once Johnson is shot, he walks away calmly showing no signs of surprise or distress about the murder and offering no assistance to Johnson.

He hails a taxi and then leaves Hamilton with Dagenais, ultimately seeking refuge with Brandon and Rebelo at his mother’s home in Cambridge. [ 131 ] As evidenced by exhibit 37, on 30 November 2014, while in Cambridge, Joshua exchanges multiple telephone calls and text messages with Davidson after the murder. [ 132 ] Within 48 hours of Brandon’s arrest, Joshua married Dagenais to preclude her testifying against him.

C) Louis Rebelo [ 133 ] Rebelo was with Joshua when Brandon’s first call came in. It is reasonable to infer that Joshua shared with Rebelo the reason Brandon was calling as it was he who made the first call to Chad Davidson. Rebelo had five other calls with Davidson between Brandon’s first call to Joshua and the murder. [ 134 ] Given his friendship with Joshua and being at the Cathcart residence for renovations, it is reasonable to infer he already knew Davidson from his visits there. [ 135 ] It can be inferred from cell phone records that he arranged that Davidson meet the other accused at the Tim Horton’s. [ 136 ] Rebelo also took

part in the search for Johnson. He was in the Jeep with Davidson’s then girlfriend. Using two vehicles was in furtherance of the plan as there was at least one person in each that would recognize Johnson. [ 137 ] There were cell phone communications between Joshua and Rebelo while they were each searching for Johnson. [ 138 ] Once the Barreiras and Davidson are in place behind the northeast corner of the Big Bee, it is Rebelo that detains Johnson until the others come around the corner with Davidson and the gun.

But for that, Johnson and Moore would have made their way to Mallory Turco’s car and be on their way home. [ 139 ] Rebelo is the only one of these accused whose contact with Johnson would not cause Johnson any alarm. They were known to each other and there is no suggestion of animosity between the two. Unlike the Barreiras, Johnson would not have seen Rebelo as a threat. [ 140 ] Rebelo acted in concert with the Barreiras and Davidson throughout the night’s events. [ 141 ] Rebelo’s post offence conduct is also instructive.

He too walks away calmly from the scene showing no reaction to the fact that the man with whom he was speaking had just been shot. He offers no assistance to Johnson and heads back toward the Jeep.

From these facts, a reasonable inference may be drawn that Rebelo knew exactly what was about to happen. [ 142 ] Cell phone records disclose that immediately after the murder, Rebelo was in cell phone contact with both Joshua and Davidson. [ 143 ] Rebelo’s subsequent flight to Cambridge with the Barreiras after the murder also informs inferences to be drawn from his post offence conduct as do his multiple cell phone contacts with Joshua. I.

CONCLUSION [ 144 ] Tyler Johnson was sought out by these accused, he was detained by Rebelo who fulfilled an essential part of the plan and he was shot at close range by Davidson. [ 145 ] That these three accused waited for the arrival of the loaded gun, then looked for and isolated their victim and all stood by as he was shot raises the reasonable inference that they collectively planned and deliberated this murder. [ 146 ] None of them resiled from this enterprise. [ 147 ] Mindful of the Crown’s onus of proof at a preliminary hearing, I find that there is sufficient evidence upon which a trier of fact could reasonably find that this murder was a planned and deliberate one by all of these accused.

A committal order for first degree murder will issue for each of them.

Released Tuesday June 23 rd , 2015 Signed “Justice P.H.M. Agro”