A first-degree murder conviction has been overturned at the Ontario Court of Appeal and a new trial ordered in a death that took place at Lackie’s Bush in Barrie in March 2006.
Mistakes made by the Barrie Police Service at the time of the suspect’s arrest are at the heart of the appeal.
Justice Sarah Pepall, co-signed by Justices John Laskin and Arthur Gans, outlined in depth the reasons for granting the appeal in court documents.
“This was a very serious case. A young male tragically lost his young life and another has spent numerous years in prison,” reads the conclusion of the appeal document. "This decision cannot alter either of these realities. The most it can do is emphasize the need to respect the principles of fair treatment and rights protection found in a statute designed by Parliament to address the intersection of young persons with the criminal justice system."
The appellant, referred to in court documents as NB, and the victim, referred to in court documents as BB, were 16 and 14 respectively at the time of the offence, and therefore cannot be identified under the Youth Criminal Justice Act.
The details of the case are outlined in the appeal documents.
On March 9, 2006, NB and BB left a friend’s house to go to the store at about 8:30 p.m. At 8:45 p.m., NB was seen alone on a security camera at a Mac’s Milk in Barrie purchasing two sodas and a pack of gum.
Shortly after, NB arrived at another friend’s house, changed his clothes and seemed surprised BB had not yet arrived. NB then left the friend’s house, saying he was going to search for BB.
A few minutes later, NB arrived at another friend’s house in a panic, saying that BB was in trouble and asked for his friends’ help to search for BB. At that time, NB said that a few guys had dragged BB into the bush.
When the friends went to search for BB with NB, they found his body down a hill by the creek in Lackie’s Bush, near Little Avenue and Bayview Drive. He had been stabbed to death.
When Barrie police arrived at the scene, Const. Jason Nevill, along with other officers, started interviewing some of the friends about the night’s events.
According to court documents, there are varying accounts of what happened next.
Nevill testified at the trial that NB became a “constant chatter” in his ear, so he spoke briefly with NB, took his information and told him to “back off” until Nevill had finished speaking with the others.
Nevill said NB reacted by shoving him from behind, knocking him off balance. Nevill then restrained NB to arrest him for obstructing police, including administering a “brachial stun” and putting NB in a headlock.
The friends all testified they did not witness a shove, only Nevill’s retaliation.
Sgt. Dave Berriault testified he only became involved when he noticed Nevill holding NB in a headlock. NB was then cuffed and held in the back of a cruiser.
At nearly 10 p.m., NB was taken to the police station for questioning.
According to the court documents which reference interviews with the numerous police officers involved, NB was not told the reason he was being held, which according to police at that time, was for questioning only.
The interview process at the police station was recorded and included as evidence in the trial.
At 1:59 a.m., after four hours of questioning, NB was arrested for first-degree murder. At that time, he immediately asked if he could call a lawyer and his mother.
In 2009, NB was found guilty of first-degree murder and sentenced as an adult to life imprisonment without parole eligibility for 10 years. He has been in custody since 2006.
The appeal was granted due to Justice Pepall’s finding that NB’s statements to the police were admitted into evidence in breach of the Youth Criminal Justice Act.
In the recording of the interviews conducted by Barrie police, it was found they did not read NB his rights by explaining to him that he was under no obligation to make a statement, that the statement could be used as evidence against him, that he had the right to consult counsel and a parent prior to making any statement, and that he had the right to have counsel and a parent present during his statements.
As the breach is fatal to the Crown’s case, Pepall indicated there was no need to address the numerous other grounds for appeal raised by NB’s attorney before granting the appeal.
One of the other reasons provided for the appeal was the revelation in 2013 that Const. Nevill was found guilty of assault causing bodily harm, fabricating evidence and obstructing the course of justice in an unrelated case involving a broken Christmas ornament at a Barrie shopping mall.
In that case when questioning a witness, Nevill’s notes regarding the incident were at odds with what was uncovered on mall security cameras. According to court documents, the video surveillance revealed a sudden and violent attack by Nevill on the witness, with Nevill inflicting numerous blows to his head and body. It also reveals that after the witness was removed from the scene, the appellant instructed the security officers to wash away a considerable volume of blood left on the ground as a result of the altercation.
Nevill no longer works with Barrie Police Service.
That evidence will now be introduced at the new trial. No date has been set yet, and NB remains in custody pending a new trial.
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