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Appeal court orders new trial for Barrie man convicted of murder

Terrence Barrett convicted of second-degree murder in 2017, but defence lawyer argued judge didn't err on the side of caution regarding provocation defence
2019-04-25 Courtroom RB 1
A look inside a Barrie courtroom during a mock high school competition is shown in this photo illustration. | Raymond Bowe/BarrieToday files

A Barrie man convicted of second-degree murder after a fatal stabbing at a local rooming house has won an appeal and will have a new trial.

Terrence Barrett was convicted of second-degree murder following a jury trial on Oct. 18, 2017 and was sentenced to life in prison with no chance of parole for 13 years.

Early on Feb. 15, 2015, Barrett got into a fight with Milan “Mike” Segota. There was no question at trial that Barrett stabbed Segota 22 times, resulting in Segota’s death, but Barrett claimed self-defence.

Prior to the judge’s charge to the jury, Barrett's lawyer asked Superior Court Justice Elizabeth Quinlan to instruct the jury on provocation as an alternative defence theory.

The judge found there was no air of reality to provocation, but she did cover self‑defence, advising the jury to consider all evidence relevant to Barrett’s state of mind, including alcohol consumption, mental disorder, rage, fear, and Segota’s “provoking or threatening words or conduct.”

But in ordering a retrial, the Ontario Court of Appeal found “that there was an air of reality to the defence of provocation,” and it allowed the appeal. 

Provocation, if accepted by the jury, could have resulted in a conviction of the lesser charge of manslaughter.

“The Court of Appeal has sent back a series of cases where trial judges have found there wasn’t sufficient evidence to lead a partial defence like provocation to the jury,” said lawyer Mark Halfyard, who represented Barrett at the appeal with Breana Vandebeek. “It just kind of speaks to the fact that judges should be erring on the side of caution in leaving defences where there could be an evidentiary foundation, such that the jury could acquit or impose a lesser verdict.

“It’s not really for the trial judge to kind of assert what defences the jury should be considering," he added. "Any defences that have an air of reality to it should be left to the jury.”

Halfyard traces their roots to two Supreme Court of Canada decisions in 2013 that found trial judges should be erring on the side of caution.

If the evidence comes in the same way during the retrial, he said the new judge will have to follow the top court’s instructions on leaving the door open to the provocation defence. If, during the next trial, the finding is that the killing was provoked, the level of intent required in murder convictions is then removed.

Barrett and his partner lived together in the rooming house and Segota lived next door.

According to the appeal decision, Barrett had a history of physical fights with Segota as well as with his partner.

“Theirs was a volatile relationship that involved drinking and drugs,” observed Justice Julie Thorburn in the Ontario Court of Appeal decision, which was released in May.

The previous year, Barrett had pleaded guilty to assaulting his partner, who said Segota was aware of the abuse and had stood up for her in the past.

Barrett and his partner had been drinking on Feb. 15, 2015  he testified he had eight beers and she had nine.

He told the court that shortly after she left the room to use the shared bathroom, she and Segota, who was complaining about the noise, started arguing. As the argument escalated, Barrett testified he ran down the hallway and saw them fighting over knives and “it looked like he was hitting her.”

Segota, Barrett said, had both Segota’s knife and hers and Barrett said he jumped in and grabbed his arm. A struggle ensued and Barrett said Segota tried to stab him so he stabbed Segota 22 times in succession.

The partner, the only witness to the confrontation, “gave varying accounts of what happened,” observed in the appeal panel.

The partner said Barrett went to the washroom with her and they were yelling in the hallway, prompting Segota to come out, yelling about the noise and telling Barrett not to talk to her “like that.” The partner also claimed Barrett stabbed her while she was trying to break up the fight.

The trial judge warned the jury to approach her evidence cautiously because she had lied to the police and at the preliminary inquiry, abused drugs and alcohol, suffered from personality disorders, psychiatric issues, and had tactile and auditory hallucinations. 

In the appeal court’s unanimous decision, Thorburn wrote there was enough evidence that a jury could be left with a reasonable doubt as to whether there was a wrongful attack that would cause an ordinary person to react suddenly, before having time for his passion to cool.

“I find the failure to provide a provocation instruction is not cured by the provision of a rolled-up instruction… provocation may apply even if the appellant intended to kill Mr. Segota,” Thorburn wrote.

Barrett returns to Ontario Superior Court in Barrie on Aug. 16.