R. v. MAYTWAYASHING, 2016 MBPC 38

CITATION: R. v. MAYTWAYASHING, 2016 MBPC 38 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Carla J.

Dewar, ) for the Manitoba Department of ) Justice ) ) and ) ) Richard Smith and Hugh Crawley ) for the Federal Crown ) and ) ) ) MAYTWAYASHING, ) Jeremy Kostiuk Bradley ) for the Accused ) ) ) ) ) Reasons for Decision delivered: ) August 3, 2016 CORRIN, P.J INTRODUCTION [ 1 ] The accused Bradley Maytwayashing, is charged with eleven separate offences alleged to have occurred on June 3 rd , 2014 as follows: • Aggravated Assault – s. 268(2) of the Criminal Code • Possession for the Purpose of Trafficking – s. 5(2) of CDSA • Flight from Police – s. 249.1(2) of the Criminal Code • Possession of a Weapon for a Dangerous Purpose – s. 88(2) of the Criminal Code • Discharge a Firearm With Intent to Injure – s. 244 of the Criminal Code

• Point a Firearm – s. 87(1) of the Criminal Code • Possession of a Weapon Obtained by Commission of an Offence – s. 96(1) of the Criminal Code • Possession of a Firearm While Prohibited by Order – s. 117.01(1) of the Criminal Code • Possession of an Unauthorized Firearm Without a License – s. 92(1) (

a) of the Criminal Code • Unauthorized Possession of a Firearm Within a Motor Vehicle – s. 94(1) of the Criminal Code • Possession of Ammunition While Prohibited by Order – s. 117.01(1) of the Criminal Code [ 2 ] During the trial the Court received vive voce evidence from seven witnesses. An expert’s report authored by Constable Devon Sloane was also filed with consent of all counsel.

The report indicated that various quantities of marihuana seized from the accused’s vehicle on June 4, 2014 had an approximate aggregate street value between $2,200.00 and $4,620.00 and that same represented a three to ten month supply for a daily user of such drug. For this reason it was Constable Sloane’s opinion that possession of such a quantity of marihuana was consistent with possession for the purpose of trafficking not personal use. THE INCIDENT [ 3 ] Three witnesses claimed to have been present at the initial phase of the incident. These were Aaron Campbell, the shooting victim; Mr.

Campbell’s 70 year old uncle, Norval Anderson; and Mr. Anderson’s adult grandson, Joshua Maytwayashing. Their versions of the events often diverged from one another. About the only things they all agreed upon was that the three of them were at Joshua’s house together when things started to unravel. [ 4 ] According to Mr. Campbell, he had been playing music with his cousin, Joshua and had gone outside to tend to his sick dog when shots rang out. He initially thought hunters were nearby.

It was his evidence that these shots came from a north-east direction from where he stood with his back to the front of the house. He recollected that there had been three or four shots and that the first shot had not struck him, that the only one that did was one of the others. [ 5 ] According to Mr. Campbell, the shooter was definitely not the accused; he was a much shorter young man, unknown to him and only 5’ 5” or 5’ 6” in height with a small build. He described the shooter wearing a hoodie which covered his head and most of his face. His skin was of a “lighter” complexion, not as dark as the accused.

His clothes were all darker in colour. [ 6 ] Mr. Campbell reckoned that the shooter was 20 to 30 feet away from him when he had first caught sight of him. He first told Court that the man had been standing near the bush line and then revised his recollection, stating “they were in the bush”. Court was then told that he had only seen the shooter for “a second.” When asked by Crown counsel to describe the initial distance between himself and the shooter by reference to features of the courtroom, Mr. Campbell chose a reference point that was closer to 45 to 50 feet away not 20 to 30 feet distance.

When asked to point out the shooter’s initial position in reference to a photographic exhibit (Exhibit 3), he did not point to the bush line, which was clearly visible as being just past the highway, at some considerable distance from the house, he rather pointed to the driveway in the photograph’s foreground, quite close to the spot where Mr. Anderson and Joshua Maytwayashing testified that he had been shot. R.C.M.P. Corporal Kevin Elliott told Court that Mr.

Campbell had told him that the shots had come “from the bush” not from the front driveway of the house. [ 7 ] The victim went on to relate that he had fled back to the house immediately after the shooting and had seen the shooter running towards the highway through the window once inside. Such testimony was at odds with Mr. Norval Anderson’s and Joshua Maytwayashing’s testimony. [ 8 ] Mr. Campbell told Court that Mr. Anderson had been present when he retreated to the residence and he had inquired whether he was “okay” immediately upon entering.

He went on to relate that he had also seen Joshua Maytwayashing running across a field and assumed he had panicked when he heard the shots and fled from the residence. Mr. Campbell attributed the bloody trail inside the house to his search for towels to staunch the flow of blood from the gunshot wound. According to him, Mr. Anderson did not assist in this task, he did it all by himself, an assertion that Mr. Anderson’s evidence also contradicted. [ 9 ] Although he claimed to be unfamiliar with guns he agreed that he had later advised medics that he believed he was shot by a .22 calibre gun.

When shown a photograph (Exhibit 3) during the Crown’s cross-examination of the driveway in front of the house where a .22 calibre gun magazine was found by police investigators, Mr. Campbell identified his blood stains on the ground nearby, suggestive that he had in fact been able to identify the gun type employed by the shooter because the individual had actually been much closer to him than his earlier direct evidence had suggested. Mr. Campbell could not provide any reason for the deliberate shooting, not even a self-admittedly speculative personal theory.

No evidence was tendered by the Crown respecting the magazine. The Court has no knowledge respecting the number of rounds, if any, that were missing from same, as the magazine was never filed as an exhibit. The seizing officer did however testify that fingerprint tests on the magazine had been negative and that all police efforts to find the shooter’s firearm had been futile. [ 10 ] Joshua Maytwayashing also provided testimony respecting the shooting. The only evidence in common with Mr. Campbell was his fleeing from the house and his recollection that Norval Anderson was present at the time of the incident. Mr.

Anderson told Court that Joshua Maytwayashing was not in the house when the accused arrived at the residence; more contradictory evidence. [ 11 ] According to Joshua Maytwayashing, at about 4:00 p.m., he and the other occupants saw the accused drive up to the house on a yellow ATV and Mr. Campbell went outside. Joshua Maytwayashing said he recognized the ATV as he had seen it and the accused at the local store two days earlier. The Court later learned that the accused was driving a red ATV at the time of his arrest. They heard yelling. Joshua

Maytwayashing stated that he had watched what was going on in a mirror that provided a view of the front yard and driveway, that he had done so to avoid being seen by the accused. According to him, the two men were approximately ten feet apart, and the gun being brandished by the accused was a .22 calibre. He told Court that he saw and heard the accused fire the gun six times and that the first three shots appeared to be directed near the victim’s face, the second two were towards the ground near his feet and the sixth directly at his leg. According to Joshua Maytwayashing, Mr.

Campbell almost immediately came back inside the house and exclaimed that he had been shot. The accused, Joshua Maytwayashing said, was following right behind him and that he had fled through an open window at such time. The foregoing evidence was somewhat inconsistent with information provided to R.C.M.P. Investigator Corporal Kevin Elliott later that day as Elliott testified that Joshua Maytwayashing advised him that he had jumped out a window and fled from the house when the shooting started, not after Mr.

Campbell had come back inside the house. [ 12 ] Joshua Maytwayashing also denied telling Corporal Kevin Elliott a little later that day that the R.C.M.P. would need a S.W.A.T. team if they were looking for the accused, another unexplained inconsistency in his evidence. [ 13 ] Norval Anderson also claimed to have been present at the time of the shooting but testified that Joshua Maytwayashing was not; only he and Mr. Campbell were present at the residence. According to Mr. Anderson, the accused came to the house on a red ATV and Mr.

Campbell went outside to talk to him and that they had spoken for about an hour; some of the exchange was described as “loud”. The accused had held a .22 calibre semi-automatic rifle during this discussion but had not pointed it at Mr. Campbell. Then coming face-to-face with Mr. Campbell, not 10 feet apart as described by Joshua Maytwayashing, he had pointed the gun at Mr. Campbell’s head and then moved its barrel downwards and fired four shots into the ground and after this he had taken a step back and shot the victim in the leg. Mr.

Anderson testified that both men had then come inside the house where the accused and himself put a cloth tourniquet on Mr. Campbell’s wounded leg. Mr. Anderson went on to describe seeing the accused carrying a 12 inch square clear bag with contents that he thought looked like marihuana when he left the house. Court was told that all three had left the house after the tying of the tourniquet and that Mr. Anderson had then pushed the ATV to help the accused start the vehicle before driving Mr. Campbell to the Ericksdale Hospital. [ 14 ] During the next few hours Mr.

Anderson came into contact with several police officers: Corporal Kevin Elliott, en route to the hospital; an officer named Kee, at the hospital; and finally, a Constable Myers, at his residence shortly after midnight on June 4, the day after the incident. [ 15 ] Corporal Elliott told Court that between 7:15 p.m. and 7:30 p.m. he had encountered Mr. Anderson and Mr. Campbell en route to the hospital and Mr. Campbell had told him that he did not know who shot him; that the shots had come from the woods. Court was told that Mr.

Anderson had remained silent, not even disclosing his presence at the incident, notwithstanding that he had heard Mr. Campbell’s denial of knowledge. Mr. Anderson also testified that Mr. Campbell had said virtually nothing about the shooting incident to Corporal Elliott, not even that the shots had come from the woods. [ 16 ] At approximately 8:45 p.m. that evening, Mr. Anderson was further interviewed by R.C.M.P. Officer Kee at the Eriksdale Hospital. The interview was audio recorded. A CD of this interview was played during Mr. Anderson’s cross examination. Mr.

Anderson adamantly denied giving this statement to the investigating officer, suggesting that the voice of the person purported to be him was an imposter; that it was not him speaking on the CD. [ 17 ] The person identified as Mr. Anderson in the statement clearly tells the investigating officer that he had been in the house, heard three or four gunshots and seen the accused and Mr. Campbell talking afterwards...that he had not seen the shooting and did not know who shot his nephew. There was no mention of seeing the accused in possession of a bag of marihuana or carrying a gun.

I am of the firm opinion that the voice recorded and heard in this statement is and was that of the witness Mr. Anderson and that Mr. Anderson therefore blatantly lied to the Court about this subject matter. [ 18 ] Mr. Anderson did confirm that he had indeed provided another audio recorded statement to R.C.M.P. Constable Myers at 12:23 a.m. the following morning. This statement was given in Myers’ police car outside Mr. Anderson’s residence after his return from the hospital. In this statement, Exhibit 11 in these proceedings, Mr. Anderson described the accused shooting twice near Mr.

Campbell’s head before firing two more times at the ground prior to shooting Mr. Campbell’s leg; a different version of events than he provided to Constable Kee or during his court testimony. He told the officer the shooting had occurred at “around 6:00 or 7:00”, but he was not sure. He related that the accused had come by his house on a three-wheeled ATV and had been either drunk or high on drugs. It is noteworthy that Mr.

Anderson provided this opinion notwithstanding that he had also advised Myers that the accused had not spoken to him at all during the incident duration. (Constable Christopher Buckland testified that he had smelled a strong odour of liquor on the accused’s breath.) After his arrest that same evening, Anderson clearly tells Myers that no one else was in the house at the time of the incident, other than himself, Mr. Campbell and the accused. There is no mention of Joshua Maytwayashing.

There is also no mention of the accused being in possession of a clear plastic bag containing marihuana, notwithstanding that Constable Myers directly asks him whether he thinks the incident related to drugs; a question which was answered in the affirmative. (see page 8, lines 23 to 25 and page 9, lines 1 and 2 of transcript) [ 19 ] Corporal Kevin Elliott received news of the shooting at his Ericksdale home at 7:15 p.m.

While driving to the scene at Lake Martin First Nation he encountered, as mentioned before, the Anderson vehicle and then Joshua Maytwayashing’s vehicle, both of whom were en route to the Ericksdale Hospital. Corporal Elliott testified that Joshua Maytwayashing told him he had called the police and notified them of the incident a short time earlier. Constable Elliott told Court that dispatch had related that a Jason Richard had phoned in the 9-1-1 call, not Joshua Maytwayashing.

Elliott also informed the Court that Joshua Maytwayashing had told him he did not see anything because he had jumped out of the window when the shooting had started. Joshua Maytwayashing denied telling Elliott he did not see the shooting, insisting on cross examination that he had not changed that part of his story. Elliott told Court that he then assumed that Joshua Maytwayashing’s 9-1-1 call was the reason he had been informed that

the accused was the suspect. Elliott recollected that Joshua Maytwayashing had also inferred that the accused was the shooter as he had stated that he was very dangerous because he was “crazy” and that a “S.W.A.T. team” would be necessary to arrest him. As previously mentioned, Joshua Maytwayashing vigorously denied having made such a comment on his examination. [ 20 ] The accused’s behaviour when arrested a short time later that night on the reserve was, as described by Elliott, a little erratic but not reflective of a dangerously, unhinged, or crazed person.

Court was told that sometime around 7:45 p.m., not long after Elliott’s encounter with Joshua Maytwayashing, at the edge of the reserve territory, he had seen the accused on a red ATV (not a yellow ATV as described in court by Joshua Maytwayashing). The ATV was estimated to be some 20 metres away and appeared to be mired in the mud. According to Elliott, he recollected having shouted at the accused, telling him to “stop.” The accused drove off. Elliott felt the accused had heard and seen him because he turned to look when he had shouted.

Elliott and another officer then commandeered an ATV from a local resident and followed the accused’s vehicle tracks. Not long after, they caught up with the accused’s ATV. The accused stopped and raised his hands as ordered, but was somewhat intransigent with respect to complying with a further instruction that he kneel on the ground. Constable Elliott shared the accused’s hesitance to comply was probably related to the ground having been quiet wet. In any event, after a short duration, the accused stood back up and advanced towards the two officers, notwithstanding that a shotgun was aimed directly at him.

Corporal Elliott told Court that the accused had invited the armed officer to “shoot me” and then compliantly surrendered to handcuffs without further fuss or bother. At this time he was told they were arresting him for the Campbell shooting, something which he immediately denied doing.

The accused also maintained that he had not fled from the police earlier, stating that he had not seen Corporal Elliott, that Corporal Elliott was mistaken. [ 21 ] After reviewing his notes, Corporal Elliott revealed that he had turned the accused over to Constable Christopher Buckland at 8:07 p.m. and then gone back to retrieve the accused’s ATV. A search of the ATV’s glove compartment revealed the bag containing cannabis marihuana which was more or less equally divided amongst 11 ziploc baggies.

The total weight was 308 grams, enough marihuana, according to the expert Constable Sloane’s report, to sustain a casual daily user of such drug for approximately ten months, some four months longer than its typical shelf life. Corporal Elliott also told Court that he had experienced considerable difficulty starting the ATV, and after doing so, had, when accompanied by other officers, been able to retrace the ATV’s tracks in the wet ground conditions and had followed its tire imprints all the way back to the scene of the shooting incident.

Court was told that a thorough search of the ATV’s route failed to locate any firearm or ammunition on or near the trail. [ 22 ] Court was also informed that Constable Buckland administered a standard gunshot residue test to the accused’s hands and face at the detachment office a short time after his arrest and that such tests proved negative, providing no evidence that the accused had fired a gun earlier that day. The accused’s clothing was also seized at such time. The clothes were also determined to be residue free.

ANALYSIS OF EVIDENCE [ 23 ] The Crown argued that the Court should draw an inference of guilt from the accused’s post-offence conduct, that his failure to stop when initially requested to do so by Corporal Elliott, should be perceived as indicative of his consciousness of guilt. The Supreme Court of Canada in 2011 issued its most recent and now leading case in respect of this subject matter. This case, R. v. White, 2011, SCC 13 , reviews and confirms the principles and concerns that underline the use of post-offence conduct.

The White case makes clear that evidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it may play only a minor role. It is for that reason that a trier of fact must always keep in mind any other reasonable explanations for the accused’s actions. In the case at bar, the accused told officers that he had not heard Corporal Elliott’s shout to “stop.” The evidence before the court suggests that such evidence is quite plausible given the presenting circumstances.

After all, Corporal Elliott estimated he was approximately 20 metres away when he had issued his command and the ATV motor was in full operation at such time. I agree with defence that these facts certainly suggest that Corporal Elliott’s command may not have been heard because of the combination of distance and the noise emanating from the vehicle. [ 24 ] The evidence provided by the victim and the two purported eye-witnesses is an unfortunate melange of inconsistencies, half- truths and outright lies. A review of the evidence indicates that not one of these three witnesses told the full truth.

As such, as trier of fact, I am compelled to look for tangible corroboration of the two Crown witnesses testimony which was received at trial. In this respect, the Crown submitted that such could be found in several places: • The accused being found by police within an hour after the shooting on a distinctive three wheel ATV, wherein a large package of marihuana was concealed, consistent with what Mr.

Anderson described seeing in his court testimony; • That Corporal Elliott was able to follow the tracks of the ATV back to the scene of the shooting, thus placing him at the Joshua Maytwayashing residence earlier the same day; • That the .22 calibre magazine on the driveway was found very near to the victim’s blood stains on the ground, suggesting that the shooting had indeed occurred at the place described by both Mr. Anderson and Joshua Maytwayashing, and that they had therefore actually seen it; • That there is no apparent benefit to be derived by either Mr.

Anderson or Joshua Maytwayashing for making up their evidence and potentially exposing themselves to perjury charges as well as the blood related accused’s wrath; • That Joshua Maytwayashing was frank and forthright in his testimony and fully explained the reason why his out-of-court utterances and statements to police were inconsistent with his trial testimony, that he was concerned about his personal safety and did not initially want to put himself in a position where he would be called upon to testify against the accused; • That the police dispatch information respecting the accused being the shooter and being in an ATV was clearly connected to the 9- 1-1 call that Joshua Maytwayashing claimed to have made shortly after the incident, that no one else could have provided such information, that

police could not identify any person with the name provided by the caller; • That Mr. Anderson’s testimony respecting the accused being intoxicated and high on drugs was supported by the police witnesses, who testified that he smelled of alcohol and might have been high when arrested shortly after the 9-1-1 call dispatch and had also acted in a seemingly erratic manner in relation to his arrest – at one point advancing on the officers and inviting them to “shoot him” before complying with their commands to go to the ground; • That Mr.

Campbell’s initial speculation that he had been shot by a .22 calibre firearm had been corroborated by the discovery of the .22 calibre magazine at the scene of the shooting; • That the firearm magazine located in the yard had also corroborated Mr. Anderson’s testimony respecting the type of weapon employed; • That Corporal Elliott actually experienced the same difficulty starting the ATV that was described by Mr.

Anderson as occurring when the accused left the residence. [ 25 ] The Court concurs with the Crown that these various congruencies buttress the credibility of its two witnesses insofar as they demonstrate that their evidence taken as a whole certainly seems to agree with and corroborate the most significant parts of their respective testimony. [ 26 ] On the other hand, the Court shares the Crown’s concerns respecting the reliability and credibility of the testimony provided by the victim, Mr. Campbell. The principle reason for this relates to his description of the shooting.

The Court found same to be less than plausible because his answers to questions posed by the prosecution on cross examination contradicted and were inconsistent with the evidence he provided during direct examination. The Court was told that Mr. Campbell had initially heard shots which he related came from north-east of the residence. He initially related that he had then seen the shooter standing near the bush line but in the bush, not in the cleared area between the bush and the front of the house. When cross examined, these details changed.

When asked about how he reconciled the magazine being found so close to the blood stains in front of the house, he now related that he had seen the shooter on the near side of the road in front of the house and at the end of the driveway, not in the bush at the edge of the cleared land beyond the road, that the shooter had been only 20 to 30 feet from him.

This was a very different version of the shooting and struck me as a somewhat facile attempt to contend with the rifle magazine being found so near to the house, so much closer thereto than he had related the shooter to have been when directly examined by defence counsel. [ 27 ] A further concern which suggested likely prevarication in relation to this subject matter arose from Mr. Campbell telling Corporal Elliott that he had not seen the shooter because the person had been standing in the woods when he had fired the shots.

I agree with the Crown that this obvious testimonial inconsistency is further exacerbated by Mr. Campbell’s silence when told by Corporal Elliott that the accused was the prime suspect. Given that Mr. Campbell admitted knowing the accused for some time, one is left to conjecture as to why Mr.

Campbell would not have conscientiously told the officer what he told us in court, that the man he was looking for was not very tall, perhaps only 5’ 5” or 5’ 6”, certainly less than 5’ 9” - his own height, a person with a small build, a younger person – maybe a boy or adolescent – with lighter coloured skin; a person who bore little resemblance to the physically robust and much older accused.

I agree with the Crown’s suggestion that a negative inference should be drawn from this inconsistency, that the failure to correct what should have, among other things, been perceived by the victim, as an injustice, makes little sense in the context of his situation at such time. The Court cannot think of a single reason why a person who had just been shot by an unknown assailant would not want to see that person – the right, not the wrong person – brought to justice. The Court concludes that the only plausible reason for Mr.

Campbell’s silence at such time, related not to his being in shock, as he suggested on the stand, but rather to his not yet having had sufficient time to make up a fictitious account of the shooting that would protect him from the threat that was posed by the accused, a person who had threatened him with a firearm, fired it in proximity to his body several times and then actually shot him in the leg, to make his point and presumably to get what he wanted – a large bag of cannabis marihuana. [ 28 ] On the basis of the evidence, which I have determined to be credible, I accordingly convict the accused of aggravated assault, possession of a weapon for a dangerous purpose, pointing a firearm, discharging a firearm with intent to injure, and unauthorized possession of a firearm within a motor vehicle. [ 29 ] The Court notes, and it is uncontested by counsel, that the accused was bound by two lifetime firearms and related ammunition prohibitions at the time of the offence.

Defence has also agreed that his client was not in possession of any firearms license at such a time. Accordingly, the Court also convicts the accused of possession of a firearm without a license, as well as being in possession of a firearm and also ammunition while prohibited by Court order. [ 30 ] The Court agrees with the defence submission for acquittal respecting the possession of a weapon obtained by commission of an offence charge, as there is no evidence before the Court in proof of this allegation.

Similarly, because the evidence is somewhat equivocal, as I mentioned earlier in this decision, I also acquit the accused of the flight from police charge, as was recommended by defence. [ 31 ] I now turn my attention to the possession for the purpose of trafficking charge, pursuant to section 5(2) of The Controlled Drugs and Substances Act. Both sides agree with the conclusions made by Constable Devon Shane in his

section 657.3 expert evidence report, that the quantity of cannabis marihuana, its packaging, and the location of the seizure, all strongly confirm that the seizure was consistent with possession for the purpose of trafficking and not of personal possession. However, it is the defendant’s position that there is no evidence before the Court that he either knew the drug package was in the ATV’s glove compartment or he owned the vehicle; a fact which would have determined the issue of knowledge and control. I agree with defence’s submission on this point but for a different reason and with a different result.

My reason is based on the evidence suggesting that the accused’s possession essentially resulted from armed robbery, the evidence in support of the various firearm related convictions. From my standpoint, those offences were committed in furtherance of a drug robbery scenario. The accused threatened and ultimately shot the victim to obtain his marihuana. As such, since

I cannot infer facts without a proper evidentiary basis for doing so, I am unable to conclude that he stole the drugs for anything more than his personal use. To do so would minimally require some evidence that he knew the actual size of the victim’s personal drug cache. So although we have evidence that there was reference to “weed” when the accused confronted the victim, who may himself have been involved in the drug trade, the Court cannot fairly deduce that the accused’s intention was in furtherance of a trafficking motive or purpose.

In my opinion, the evidence simply does not support the inferences suggested by the prosecution and such a conclusion would not be rational or reasonable in the circumstances. [ 32 ] Accordingly, I convict the accused of the lesser included offence of possession pursuant to section 4(1) and acquit him of the substantive charge. Original Signed by CORRIN, P.J.