R. v. Ward, 2019 MBPC 27

Citation: R. v. Ward , 2019 MBPC 27 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) Dan Angus and Theresa Cannon, for the Crown ) - and - ) ) Kyle Wilfred Ward ) ) Brett Gladstone, for the Accused ) ) Judgment delivered: ) May 14, 2019 CORRIN, P.J.

OFFENCES BEFORE THE COURT [ 1 ] The accused was convicted of the following offences after trial: - Aggravated assault respecting Riel Mitchell pursuant to section 268(1) of the Criminal Code ; - Aggravated assault, use firearm in reference to Riel Mitchell pursuant to section 85(1) of the Criminal Code ; - Discharging a firearm with intent pursuant to section 244(2) of the Criminal Code ; - Possession of a prohibited firearm and ammunition therefore without being the holder of a licence for same pursuant to section 95(1) of the Criminal Code ; - Possession of a firearm without being the holder of a licence pursuant to section 92(1) of the Criminal Code ; - Possession of prohibited ammunition without being the holder of a licence pursuant to section 92(2) of the Criminal Code ; - And finally, two counts of possession of a firearm while prohibited to do so by a prohibition order pursuant to

section 117.01(1) of the Criminal Code . [ 2 ] The Crown, citing R. v. Kienapple , invited the Court to stay convictions with respect to the aggravated assaults, the unlicensed firearm possession, and the prohibited ammunition charge. The Crown also invited a concurrent sentence with respect to the two possession while prohibited convictions. i.e. concurrent to each other but consecutive to the two other remaining charges. THE FACTS [ 3 ] The facts of the case were described at considerable length in my trial decision of August 31 st , 2018.

Such decision constitutes the detailed factual foundation for this sentencing decision. [ 4 ] A brief review of the facts are as follows: Mr. Ward is an admitted high ranking Mad Cow gang member at the time of the offence. He admitted his job was to be an enforcer for the gang, which consisted of supervising and protecting a gang drug sales outlet situated at 512-514 Spence St. The firearm he used was capable of discharging multiple shots and the ammunition employed was hollow point bullets.

This incident, in January 2016, was not a spontaneous event, but rather a premeditated one as he was following orders of his criminal organization boss to stand his ground. He could have left or called police. Instead, he chose to arm himself with a firearm, knowing that he was prohibited from possessing one, and wait for the victim to return to the house, which was the scene of an altercation earlier in the day. The gunshot injuries suffered by the victim, an affiliate of another gang, were life threatening; absent immediate medical intervention, he would probably have died.

POSITION OF COUNSEL AT SENTENCING HEARING

[5] The Crown is seeking a total sentence of 11 years in custody. It recommends that such be broken down to be 10 years on thesection 244(2)(

a) discharge a firearm with intent charge and seven years concurrent on the section 95(1) possess a loaded prohibitedfirearm charge. Finally, it recommends a further one year consecutive on the

section 117.01 possession of a firearm contrary to an orderconvictions. [6] In support of its position the Crown filed several cases, all from Manitoba Superior Courts, as follows: - R. v. Kelly, 2017 MBQB 19 - R. v. Hanska, 2014 MBQB 184 - R. v. Maytwayashing, 2018 MBCA 36 - R. v. Harper, 2016 MBCA 64 DEFENCE [7] Defence sought a cumulative sentence of seven years. It acknowledged that the principles of deterrence and denunciationwere paramount because of the firearm related violence involved.

However it also asked the Court to keep in mind the importance of theproportionality principle as well as totality. [8] In particular, Defence drew the Court’s attention to the accused’s totally voluntary and unsolicited confession to police whilehe was in custody on unrelated matters. Such unilateral action was described as being “a significant mitigating factor” which shouldaccrue to his benefit at this, the sentencing stage, of proceedings. The Court was encouraged to perceive Mr.

Ward’s honesty at such timeas an altruistic contribution to society, as without his having done so, the matter would possibly have remained unresolved. [9] Defence further argued that the circumstances of the offences should also be recognized as being essentially, if not legally,defensive in nature because the victim, Mr. Riel, was actively engaged in what Defence characterized as a home invasion at the time Mr.Ward opened fire on him. In this respect, Defence reminded the Court that Mr. Mitchell had actually been engaged in breaking down thedoor of the multi-tenant residence when he was shot.

As such, Defence submitted that the accused’s actions should not attract the highlevel of denunciation that the Crown recommended to the Court. Defence argued that this was a significant sentencing factor which“ought to result in a lessened sentence when compared with otherwise comparable cases.” [10] Defence also asked the Court to consider specific subjective factors such as loss of a child and familial support as being moreonerous for the accused than would be the case for most offenders.

Defence contended that such “a direct and significant negativeconsequence of the matter…is in and of itself a specific deterrent component.” Defence requested that the Court lessen the accused’ssentence because there was, in his view, accordingly less need for specific deterrence than usually presents in similar cases. [11] Defence filed four out-of-province cases: - R. v. Addow, 2014 ONSC 3225 - R. v. Gill and Van Dyke, 2012 BCSC 1603 - R. v. Ivanic, 2011 BCCA 158 - R. v. Derion, 2013 BCPC 381 THE CIRCUMSTANCES OF THE ACCUSED A. INFORMATION GLEANED FROM PRE-SENTENCE REPORT (PSR) [12] Mr.

Ward is 33 years of age, born on February 2, 1986. He grew up in Selkirk and appears to have had supportive andconcerned parents. He still enjoys a good relationship with them and other members of his immediate family. [13] His early childhood was relatively normal except for problems at school. He suffered from Attention Deficit Disorder andfound school challenging. He was held back and became disaffected, spending a lot of his time with negative peers who may have ledhim astray. His parents reported that “it was a challenge to get him (the accused) to come home.

Friends were more important thanfamily.” [14] The accused reported that he began to consume alcohol with his friends while still in school and by the time he was 16, after hehad been expelled, with only a grade 6 standing, had begun to drink “every other day.” The accused also shared that his gang recruitmenttook place at the Manitoba Youth Centre when he was 16 years of age, that he had been actively involved in such enterprise thereafter,until his very early thirties. [15] Mr. Ward admitted developing a crystal meth addiction in 2016, something he claims to have now brought under control.

Heappears to lack insight into his criminal behaviour. For instance, at page 4 of the PSR, he tells the corrections official that “sometimesyou got to do it (criminal acts) to get by.” [16] The authors of the PSR summarized their recommendation as follows at page 9: Mr. Ward expressed a negative attitude and directed blame toward the justice system.

The writer is concerned about the subject’s stanceon community supervision, the severity of the current convictions, his extensive violent criminal history, the numerous weapon relatedconvictions, his on-going gang association and his admitted lack of motivation to make positive, necessary changes in his life. Thesubject has demonstrated difficulty following direction while under federal supervision in the past. It is the writer’s opinion the subject

cannot be safely monitored while in the community and is not a suitable candidate for community supervision at this time. B. CRIMINAL RECORD [ 17 ] Mr. Ward has an extensive criminal record. It was proferred as a Crown exhibit at the sentencing hearing. [ 18 ] His record begins in 2000 as a youth and since that point, it is a continuous string of violent property offences and breaches of court orders. The number of breaches indicate a lack of respect for court orders, which speaks to his ability to be supervised in the community.

The Crown submits that this factor mandates a lengthy penitentiary term in this case. [ 19 ] On December 12, 2008, he was convicted of break and enter to commit an indictable offence and use firearm in the commission of an indictable offence. He received a seven-year total sentence. This is a lengthy penitentiary term on a related violent offence. A lifetime weapons prohibition attached to that conviction, which relates to the s. 117 conviction in this case. It is also noteworthy that he violated his statutory release three times during that sentence: November 15, 2012, August 23, 2013 and November 4, 2013.

This again speaks to his inability to be managed in the community. [ 20 ] On July 11, 2018 he was convicted of assault a peace officer in an institutional setting and received a 90 day sentence. This occurred while he was pending on these charges. [ 21 ] Subsequent to that, he was convicted of assault on August 1, 2017 and received a 90 day sentence. Then, on October 31, 2017, he was convicted of possession of a loaded prohibited firearm and received a four-year sentence, as well as possession of a firearm or ammunition contrary to a prohibition order (which he was just convicted of in this case again). [ 22 ] In

summary, Mr. Ward has a continuous record that includes multiple violent convictions and penitentiary terms. It is very troubling that he constantly re-offends in a violent manner and this certainly suggests the need for a significant denunciatory sentence. ANALYSIS AND CONCLUSION [ 23 ] The Court wishes to confirm that it has approached the matter of sentence in the manner set out by Martin J., in R. v.

Hanska , (previously cited) (QL), where Martin J. states at paras. 10 and 11: 10 A sentence imposed by a judge on an accused for a serious crime should be tailor-made in the sense that, mindful of principles of sentencing, it responds appropriately to the circumstances of the offence and the particulars of the offender. The Criminal Code , R.S.C. 1985, c.

C-46 , articulates that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a safe, peaceful society through just sanctions that denounce unlawful conduct; deter persons from committing offences; separate offenders from society, where necessary; assist in rehabilitation; provide reparation; and promote a sense of responsibility in offenders. 11 Further, the Code mandates that a judge consider a number of principles, including the following sections: 718.1: referred to as the fundamental principle, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; 718.2(a): that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; 718.2(b): that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; 718.2(d): the restraint principle; and 718.2(e): Gladue factors for Aboriginal offenders. [ 24 ] In addition to this statutory list are a number of principles developed through the common law.

Ultimately, the sentence must be fair and just - neither vengeful nor arbitrary. [ 25 ] I do not agree with Defence’s position that Mr. Ward’s level of moral blameworthiness should be perceived as being somewhat reduced due to the circumstances of the shooting. Indeed, given the gang and general context of the offence, the Court agrees with the Crown that denunciation and deterrence should be the key thrust of sentencing. [ 26 ] I am of the opinion that some very serious aggravating circumstances are to be found in relation to the offences before the court.

These are as follows: - the use of a firearm per se; - that the accused was fully aware that he was prohibited from possessing firearms; - the firing of a firearm with intent to injure is a very serious offence as evidenced by the mandatory minimum sentence imposed by parliament;

- the subject matter of the offences occurred in furtherance of gang related business activity; - the shooting occurred in a residential rooming house where other, not gang affiliated, residents were residing; - the accused purposely employed hollow point bullets which expand and cause more damage after striking their target. [ 27 ] The Court cannot find any mitigating factors in relation to the offender or his involvement in the crime.

The Court agrees with the Crown that the Defence submission that the confession to police was a mitigant is not viable because it was vitiated by the accused’s disavowal of its validity when he testified at trial. [ 28 ] Mr. Ward clearly had other much more reasonable options in relation to the subject matter of the offences but decided to forgo them in order to defend his gang’s crack house as he was instructed to do by his boss. [ 29 ] In R. v. Maytwayashing , 2018 MBCA 36 , Hamilton J., speaking for the panel, provides guidance respecting firearm related offences.

She, for instance, opined that the offence of discharging a firearm with intent to wound was the most serious offence before the court when an accused was also charged with aggravated assault in relation to a shooting incident. She observed that this was the case because although both offences have maximum sentences of 14 years, Parliament had legislated a mandatory minimum sentence of four years for the former offence. Quoting from Arbour J. in R. v. Morrisey ,

(2000) SCC 39 she notes that Parliament created an “inflationary floor” when they create a minimum mandatory punishment. She refers to para. 75 of Morrisey where Arbour states as follows: [T]he mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called “best” offender whose conduct is caught by these provisions.

The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence In the very worst circumstances. [ 30 ] In Maytwayashing the victim was shot in the leg in the course of a drug robbery motivated scenario. The accused was 44 years old and like Mr. Ward, had been sentenced to substantial terms of incarceration for violent and firearm related convictions.

In overturning the trial court’s decision of six years, the court stated that “the trial judge failed to give sufficient weight to the seriousness of these offences, the accused’s related criminal history and his disturbing propensity for violence” (para. 38). [ 31 ] The appeal court in Maytwayashing also endorsed the range of sentence pronounced by the Ontario Court of Appeal in R. v. Bellisimo , 2009 ONCA 49 . In Bellisimo , at paragraph 3 , that court held that the range of sentence for “serious gun related offences” should be between seven and 11 years (also re-affirmed by R. v.

Jefferson , 2014 ONCA 434 ). [ 32 ] The Court of Appeal imposed an eight-year sentence on Mr. Maytwayashing with respect to the discharging a firearm with intent charge and a one-year consecutive sentence in relation to a s. 117 charge. The offender in Maytwayashing , like Mr. Ward, was also a person who had accumulated and violated firearm prohibition orders. As well, he had also previously received a sentence of seven years for related offences.

Hamilton J. reasoned that these circumstances called for a sentence that was significantly higher than the mandatory minimum and also an increase from the earlier sentence of seven years for similar criminal conduct. [ 33 ] The Maytwayashing appeal court also determined that the nine year sentence, because the offences were very serious, was not viewed as a “crushing sentence” that warranted adjustment for totality purposes.

At paragraph 49 Hamilton, J.A. states, “I agree with the Crown that a reduction of one year, as the trial judge did, would negate the important public policy rationale for the imposition of a consecutive one-year sentence for possessing a firearm while prohibited and would make the sentence superfluous.” [ 34 ] Defence submitted that Mr. Maytwayashing’s personal circumstances and his offence were worse than Mr. Ward’s. Defence postulated that as such Mr. Ward’s moral culpability for the offence was far less than Maytwayashing’s.

The Court observes that there is no basis for such a conclusion, that it does not agree with such submission. Mr. Ward’s sole motivation was the defence of his gang’s crack house operation. He was well aware that the commotion at the door did not relate to a home invasion involving the entire rooming house, that it related only to the events and threats related earlier in the day by opposing gang members. That is why he asked his gang boss for reinforcements, that is why he armed himself with a firearm in the first place.

The Court agrees with the Crown that the accused had a number of more appropriate and safer options at his disposal, including advising police of the impending threat to the safety of himself and the rooming house residents. And given that Mr. Ward couldn’t even see who he was firing at, his use of the firearm was disproportionately hazardous in the extreme. After all, the victim turned out to be armed with a can of bear spray not a potentially lethal weapon such as a knife or a firearm. And of course, for all Mr.

Ward knew, he could have been firing his gun at a 16-year-old gang “go for” rather than a full fledged adult affiliate. And he was essentially firing blind, not knowing whether his shot was going to likely kill or just injure his victim, a further aggravating circumstance. And furthermore, probably because he was employing hollow point bullets, a previously mentioned aggravating factor, the victim almost bled out before surgeons could save his life.

For all these reasons, the Court does not perceive the accused, as Defence argued, as being a victim of sorts, in relation to the incident. [ 35 ] In argument, Defence also submitted that the accused should be found less culpable because there had been provocation. The Court again does not agree. Indeed, the Court doesn’t perceive the circumstances as amounting to anything near legally recognized provocation. There was absolutely no evidence of any wrongful act or insult by the victim that could or, would deprive an ordinary person of the power of self-control. The Court believes that Mr.

Ward was in full possession of his faculties when he deliberately fired in the direction of the victim. [ 36 ] Defence also argued that the accused’s sentence should be reduced because he is already serving a prison term with respect to an incident which pre-dated the charge before the court.

It was suggested that the Court “ought to concern itself with the cumulative effect of the total sentence... as there is a strong connection between these matters.” Defence argued that the very similar charges, both firearm related, militated for a lesser sentence in reference to the matters that are currently before the court. He relied on the principal of totality in such respect, citing R. v. Wozny , 2010 MBCA 115 , a decision of our Court of Appeal. According to Defence this jurisprudence supported a reduction in Mr. Ward’s sentence, to prevent his current sentence from being “crushing” on a cumulative basis.

Court was encouraged to take into consideration the fact that the offences now before the court pre-date the matters for which the accused is now a sentenced prisoner by 11 ½ months. Succinctly put, Defence suggests that if all these matters had been before a single sentencing judge

on October 31 st , 2017, the date the initial charges had been dealt with, that the court would have conceivably had to consider whether a sentence resulting in a 15-year term of imprisonment constituted a crushing sentence. [ 37 ] An examination of Wozny does not suggest that the totality principle applies when a court is dealing with distinct, and temporally unrelated incident offences. The court specifically states that “(I)t applies only when imposing consecutive sentences” (see para. 62).

That a sentencing judge who orders an offender to serve consecutive sentences for multiple offences must ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. So a sentencing judge who is passing a number of consecutive sentences respecting different offences arising from an incident must review the aggregate sentence and consider whether it is just and appropriate in reference to the crushing effect of the total sentence. [ 38 ] This Court is of the view that Mr.

Ward made a separate decision to reoffend with respect to each of these two different date groups of offences. That the two offence groupings should therefore be considered as pertaining to what Steele J. referred to as a “new moral inquiry” in R. v. Maroti , 2010 MBCA 54 . As such the Court concurs with the Crown that the totality principle does not pertain to the subject matter Defence counsel has raised in reference to the January, 2016 charges that are now before the court.

This having been said, the Court does not agree with the Crown’s submission that the current sentence should necessarily be longer than the first sentence simply because this offence is before the Court after the earlier occurring offence.

Indeed, the Court is of the view that it should sentence the accused as if it knew nothing of the later occurring offences simply because they actually occurred after, not before, the offences currently before the Court. [ 39 ] In support of its sentencing recommendation the Crown also relied on other Manitoba superior court caselaw, all of which are entitled, as is Maytwayashing , to due deference because they are decisions of senior Manitoba courts. The case this Court found most helpful was R. v. Kelly .

Kelly also involved a residential shooting where a victim was shot in a premeditated and gang related manner. As in our case the court determined that the injuries could have resulted in death. The accused was on two court orders not to have weapons at the time of the offence. [ 40 ] Unlike Mr. Ward, Kelly was a still youthful adult offender albeit one with a related youth record. His case also differed from the case at bar because he had entered a guilty plea. He also presented with Gladue factors, although the sentencing judge did not consider them sufficient to reduce the final sentence. Citing Mr.

Kelly’s high level of moral blameworthiness and reliance on the sentencing principles of personal and public deterrence and denunciation, the court sentenced him to a nine-year sentence on an aggravated assault charge and a seven-year concurrent sentence on a charge of discharging a firearm with intent.

It is noteworthy that the sentencing judge, also expressed the view that absent the guilty plea, he would have imposed the 10 year sentence requested by the Crown. [ 41 ] In the result, this Court imposes a sentence of eight years on the discharge a firearm with intent charge and seven years concurrent on the section 95(1) charge. The prohibition related sentences will be one year each concurrent, but consecutive to the eight year sentence for a total sentence of nine years. The Court will also subtract any pre-sentence custody which has accrued to the accused’s credit at the rate of 1.5:1.

The Court will set any such credit entitlement after receiving submissions from counsel. The sentence will be consecutive to the penitentiary sentence the accused is currently serving. [ 42 ] Mr. Ward is also ordered to provide a sample of his DNA within 14 days and it is also ordered that he be prohibited pursuant to s. 109 from possessing any weapon for the rest of his life. “Original signed by:” CORRIN, P.J.