R. v. Whiteway (B.D.T.) et al., 2015 MBCA 24

Citation: R. v. Whiteway (B.D.T.) et al., 2015 MBCA 24 Date: 20150302 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella Docket: AY13-30-07966 ) ) BETWEEN : ) ) HER MAJESTY THE QUEEN ) L. J. Tailleur ) for the Appellant Respondent ) B. D. T. Whiteway ) - and - ) S. A. Inness and ) K. L. Jones BLAKE DUAN TYLER WHITEWAY ) for the Appellant ) T. A. R. Sutherland ) (Young Person) Appellant ) A. Y.

Kotler ) for the Respondent - and - ) ) Docket: AY13-30-08065 ) Appeals heard: ) December 16, 2014 BETWEEN : ) ) Judgment delivered: HER MAJESTY THE QUEEN ) March 2, 2015 ) Respondent ) ) - and - ) ) TYLER ANTHONY RAYMOND ) SUTHERLAND ) ) (Young Person) Appellant ) NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any information that could identify a child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. See the Youth Criminal Justice Act, S.C. 2002, c. 1, s. 111(1) . MAINELLA J.A.

Introduction and Issues [ 1 ] On December 5, 2009, a crowded house party in Winnipeg ended tragically when the appellant Blake Whiteway (Whiteway), at the behest of the appellant Tyler Sutherland (Sutherland), rapidly shot, in execution style, three young men, killing two and permanently maiming the third. [ 2 ] The appellants, both of whom were youths, were tried together by a judge alone. Each was convicted of two counts of first degree murder and one count of attempted murder. The Crown successfully applied to have them both sentenced as adults.

Each received three concurrent life sentences with the mandatory 10-year period of parole ineligibility ( s. 745.1 (

b) of the Criminal Code (the Code )). Both appeal their convictions and sentences. [ 3 ] Whiteway argues that the first degree murder verdicts are unreasonable ( s. 686(1) ( a )(

i) of the Code ). He asks this

court to substitute verdicts for second degree murder on the basis that: (

i) the judge erred in his credibility assessments of two Crownwitnesses, Cody Delorme (Delorme) and Mathew Sochaski (Sochaski) who both testified that the murders were not planned; (ii) thejudge erred by failing to place any weight on expert evidence from a psychiatrist, Dr. Dane M.

Hershberg, who questioned Whiteway’smental state; and (iii) the judge’s findings of planning and deliberation cannot reasonably be supported by the evidence. [4] Whiteway concedes an adult sentence, instead of a youth sentence, was appropriate in the circumstances, but he saysthe life sentence for attempted murder was demonstrably unfit. [5] Sutherland requests a new trial for two reasons. He says the verdicts are unreasonable because of the lack of evidenceto establish that he had prior knowledge that the shotgun used in the shootings was loaded.

He also submits that the verdicts give rise toa miscarriage of justice (s. 686(1)(a)(iii) of the Code), because they are dependent on significant misapprehensions of the evidence bythe judge. [6] Sutherland also says he should have received a youth sentence. He argues that the judge erred in principle by under-emphasizing the relevant Gladue factors (R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688 at paras. 66-69) in his decision toimpose an adult sentence pursuant to s. 72 of the Youth Criminal Justice Act (the YCJA), instead of a youth sentence. [7] For the reasons that follow, I conclude that all of these arguments fail. I have not been satisfied that appellateintervention is required as to any verdict reached against either appellant or resulting sentence. Background Requirements of first degree murder [8] To place the issues on this appeal in their proper context, it is necessary to restate the requirements for first degreemurder.

Subsections 231(1)-(2) of the Code define first degree murder as follows: Classification of murder 231(1) Murder is first degree murder or second degree murder.

Planned and deliberate murder 231(2) Murder is first degree murder when it is planned and deliberate. [9] Leaving aside the special cases when a murder is deemed to be first degree murder (subss. 231(4)-(6.2) of the Code),the difference between first and second degree murder is not based on intent, but upon “the presence of planning and deliberation” (R. v.Farrant, (SCC), [1983] 1 S.C.R. 124 at 141). [10] Planning and deliberation are different requirements that must each be proven beyond a reasonable doubt (R. v. Aalders, (SCC), [1993] 2 S.C.R. 482 at 502).

Failing that, a murder is properly classified as second degree murder (s. 231(7) ofthe Code). [11] A “planned” murder is one resulting from a calculated scheme or design previously devised. While the plan to murdermay be a simple one, it must have existed before the murder was committed. A “deliberate” murder is one that is carefully consideredand thought out. A murder where a person thinks about the consequences beforehand is deliberate; a murder that is hasty, rash orimpulsive is not (see R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314 at para. 26; and R. v.

Nygaard, (SCC),[1989] 2 S.C.R. 1074 at 1084). [12] There are no special rules as to proof of planning or deliberation. Either requirement may be established by way of aninference drawn on circumstantial evidence, if the jury is satisfied beyond a reasonable doubt that the guilt of the accused is the onlyreasonable inference that can be drawn on the proven facts (R. v. Cooper, (SCC), [1978] 1 S.C.R. 860 at 880-81; and R.v. Griffin, 2009 SCC 28 at para. 33, [2009] 2 S.C.R. 42).

Facts [13] The appellants together with Sochaski (the father of Whiteway’s girlfriend) and B.N., a teenager, attended a house partyhosted by Tyler Hawula (Hawula). Among those present were Hawula’s friends: Matthew Reynolds (Reynolds), K.S. and Chris Bolton(Bolton). [14] Sochaski and Whiteway stayed briefly and then left to meet Delorme. Later, because of unruly behaviour, Sutherlandand B.N. were asked to leave the party. On his departure Sutherland uttered threats. In the presence of Geoffrey Halcrow, Sutherlandsaid, “he could make one call and have someone down there with a gun” (2012 MBQB 303 at para. 13).

Based on the evidence ofCheyann Hawula and Heidi Raeside the judge attributed to Sutherland another threat. Sutherland said words to the effect that, “he wouldblow the place to shit” (ibid.).

[15] Although K.S. testified he was not involved in ejecting Sutherland and B.N. from the party, the judge accepted theevidence of J.C., a teenager, who saw K.S. standing in the doorway with Hawula, Reynolds and Bolton when Sutherland and B.N. leftthe party. [16] Sutherland and B.N. went to Sochaski’s house and complained to Sochaski, Whiteway and Delorme about being showndisrespect. Sutherland convinced the others, except Sochaski, to return with him to the party.

Whether their plan was, as the Crownargued, to revenge the disrespect by murdering the people who had kicked the two out of the party, or something less sinister, was thekey factual dispute in the trial. [17] Sochaski possessed a stolen pump action shotgun with ammunition. The shotgun had been plugged so that it could notbe loaded with more than three rounds.

The judge made three findings about the shotgun: Sochaski had stored the shotgun in hisbedroom closet “unloaded” in its gun case (at para. 30); Sochaski took the shotgun out of the gun case in the presence of Delorme “andthe presence of the others” including Sutherland (at para. 18); and the shotgun was loaded “in the presence of the four” (at para. 31). [18] The loaded shotgun was taken from Sochaski’s house concealed in blankets and a garbage bag, and then was placed inthe trunk of a taxi that had been arranged for the return to the party. [19] Sutherland directed the taxi driver to stop close to Hawula’s residence.

Based on the taxi driver’s evidence, the judgefound that Sutherland asked the taxi driver to “wait” when the four were dropped off (at paras. 19, 36) and that the four passengers“covered their faces while in the taxi” (at para. 19). [20] Sutherland exited the taxi and entered Hawula’s residence first with his face partially covered by a bandana. Whitewayretrieved the loaded shotgun from the taxi, unwrapped it, and then followed 30 seconds behind Sutherland. B.N. and Delorme exited thetaxi and stayed outside. When Sutherland entered the house Hawula and Reynolds were in the kitchen with others including Bolton.

K.S. was in the living room. [21] Whiteway kicked opened the front door and began yelling, “You want to fuck with my homies!” (at para. 22). Hewalked through the living room into the kitchen and immediately shot Reynolds in the heart. He racked the shotgun to reload it, andthen shot Hawula in the abdomen.

J.C. testified that despite there being many people in the kitchen, Whiteway only pointed the shotgunat Reynolds and Hawula and did not “swing the gun around and shoot randomly.” [22] Whiteway went to the living room, racked the shotgun to reload it, and pointed it at Hawula’s mother who was fleeingwith her seven-year old son. K.S. called to him “what the fuck? What the fuck?

She has nothing to do with this.” Whiteway looked atK.S. and then shot him in his right arm and shoulder. [23] The judge found that Whiteway returned to the kitchen and encountered Bolton for “the first time” (at para. 21), becausewhere Bolton had been standing in the kitchen prevented Whiteway from seeing him when he shot Reynolds and Hawula. Whitewayand Sutherland then left. The two hid the shotgun in a nearby shed. A surveillance video confirmed Whiteway was in the residence foronly 38 seconds. [24] Reynolds, age 18, was dead on arrival to hospital. Hawula, age 18, died in hospital after emergency surgery.

K.S., age17, lost part of his right arm from the gunshot and suffers constant pain in his reconstructed arm. [25] At trial, neither appellant testified. Whiteway called Dr. Hershberg as an expert witness. Dr. Hershberg was allowed totestify to the opinion that because Whiteway was aggrieved by the recent murder of a friend he “was not capable of organizing histhoughts and contriving to consider a plan of action.” The judge decided to place no weight on Dr.

Hershberg’s opinion of Whiteway’sstate of mind at the time of the shootings because it relied significantly on information provided by Whiteway outside of court. [26] The judge concluded that a murder plan, involving the shotgun and ammunition Sochaski possessed, was formulated atSochaski’s house before the shootings. The judge found that the “victims were targeted” (at para. 35) to revenge the disrespect shown toSutherland and B.N. Both appellants agreed to the plan.

The judge disbelieved the evidence of Sochaski and Delorme that the plan wasnot to murder anyone. [27] In his reasons, the judge recognized that the case against Sutherland was different. In addition to all of thecircumstantial evidence, there was also Sutherland’s confession to police. Taking into account all of the evidence, the judge concludedthat Sutherland was the principal architect of the shootings. In his discussion of the plan, the judge said, “But for the instigation of oneother person, [Sutherland], [Whiteway] would not have acted alone” (at para. 35).

Standard of Review – Conviction Appeals [28] The standard of review as to the reasonableness of a verdict in a judge alone trial was summarized by the Supreme Courtof Canada in R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, as follows (at para. 9): To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC), [1987]2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properlyinstructed jury or a judge could reasonably have rendered.

The appellate court may also find a verdict unreasonable if the trial judge hasdrawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trialjudge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted orrejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007]1 S.C.R. 190).

[29] In re-examining the sufficiency of the evidence, the appellate court is required to reweigh the evidence, to some extent,and consider its effect on the issues (R. v. Yebes, (SCC), [1987] 2 S.C.R. 168 at 186). [30] In reviewing the reasonableness of a verdict in light of the evidence, and its effect, an appellate court must defer to thetrial judge’s evaluation of the evidence and findings of credibility (R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122 at 131). Findings of fact will not be disturbed on appeal absent demonstration that the trial judge committed a palpable and overriding error (R.v.

Gagnon, 2006 SCC 17 at para. 10, [2006] 1 S.C.R. 621). [31] The standard of review for a misapprehension of evidence by a trial judge was articulated by the Supreme Court ofCanada in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, as follows (at para. 2): …. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral tothe reasoning of the trial judge.

Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive ratherthan disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoningprocess resulting in a conviction”. [32] A misapprehension of evidence may refer to a mistake as to the substance of evidence, a failure to consider evidencerelevant to a material issue or a failure to give proper effect to evidence (R. v. Morrissey (R.J.) (1995), (ON CA), 80O.A.C. 161 at para. 83; and R. v. Sinclair, 2011 SCC 40 at para. 13, [2011] 3 S.C.R. 3).

A misapprehension of the evidence is not to beconfused with a different

interpretation of the evidence than the one adopted by the trial judge (R. v. Lee, 2010 SCC 52 at para. 4, [2010]3 S.C.R. 99). It is insufficient that the judge may have misapprehended the evidence; the error must be readily obvious (Sinclair at para.53).

Whiteway’s Conviction Appeal Are the judge’s credibility assessments of Sochaski and Delorme reasonably supported on the evidence? [33] Whiteway’s argument that the judge erred in rejecting the testimony of Sochaski and Delorme, that the plan was for thegroup to return to the party to talk, or at worst engage in a fist fight, is not persuasive. [34] Whiteway says because neither Sochaski nor Delorme was inconsistent in their evidence, the judge mischaracterizedeach of them by describing each as “a mixed witness” (at para. 29) (see R. v. Rowe (J.), 2011 ONCA 753 at para. 32, 285 O.A.C. 249).

He argues this undermines the judge’s credibility assessments of both Sochaski and Delorme. [35] In my view, in the circumstances of this case, nothing turns on the judge’s characterization of these two Crownwitnesses. The judge’s reasons satisfy me that he was not rejecting the exculpatory evidence about the nature of the plan from eitherwitness because he characterized each of them as a mixed witness. He did not say he could only believe them if their evidence wasconfirmed by independent evidence.

Rather, he stated the question was whether their evidence alone or in combination with otherevidence left him with a reasonable doubt. As the trier of fact, the judge was entitled to accept all, some or none of the evidence ofSochaski and Delorme (R. v. Abdallah (1997), (ON CA), 125 C.C.C. (3d) 482 at para. 5 (Ont. C.A.), aff’d, (SCC), [1998] 1 S.C.R. 980). That is what he did. [36] I see no reason to interfere with the judge’s credibility assessments.

Both Sochaski and Delorme had reason to shadetheir evidence to the advantage of the appellants, because they were accomplices with personal connections to the appellants.

Moreover,the judge’s conclusion that there would be no reason to bring a loaded shotgun to the house party if the plan was merely, as Sochaski andDelorme suggested, to talk, or engage in a fist fight, is a reasonable view of the evidence and, therefore, is entitled to deference (R.P. atpara. 10; and Gagnon at para. 10). [37] Whiteway’s other argument that the judge should have taken a more favourable view of Delorme’s credibility because itwas bolstered by his guilty plea to manslaughter, as opposed to first degree murder, is also unsuccessful.

The judge properly did notaccept Delorme’s version of events merely because it was consistent with the facts he admitted in his own sentencing. I see nothing inthis case as being a justification for departure from the general rule that a guilty plea by one defendant is not probative of the guilt orinnocence of another defendant (R. v. Martin (1980), (ON CA), 53 C.C.C. (2d) 425 at 432-33 (Ont. C.A.); R. v.Moore (F.P.) (1956), 40 Cr.App.R. 50 at 53-54 (C.A.); and R. v. Brown, [2008] EWCA Crim. 369 at paras. 25-29 (BAILII)). Did the judge err in placing no weight on Dr.

Hershberg’s expert evidence? [38] I am not satisfied that the judge made a palpable and overriding error when he decided to place no weight on Dr.Hershberg’s opinion of Whiteway’s state of mind at the time of the shootings because of the failure to prove the factual basis of theopinion.

While it is not necessary for every fact relied on by an expert in their opinion to be proven by admissible evidence, before anyweight may be assigned to an expert’s opinion, some admissible evidence is required to establish the foundation of the opinion (R. v.Lavallee, (SCC), [1990] 1 S.C.R. 852 at 895-96). [39] In my view, it was open to the judge to place no weight on Dr. Hershberg’s opinion as it was based almost exclusivelyon his interview of Whiteway (Lavallee at p. 897).

I disagree with Whiteway’s submission that a sufficient factual foundation to Dr.Hershberg’s opinion had been proven by the mere fact that Sochaski testified that Whiteway was upset because of the recent murder ofhis friend. Except for Sochaski’s modest evidence, none of the hearsay Dr. Hershberg relied upon was proven at trial. [40] Dr. Hershberg’s opinion that Whiteway lacked the mental capacity to commit first degree murder was also contradictedby the evidence: he participated in the discussions at Sochaski’s house, he volunteered to pay for the taxi to return to the party, he told

his girlfriend he was about to breach his bail conditions when he left Sochaski’s house and during the shootings he was able tomethodically target the relevant victims. [41] One final comment is necessary. According to Dr. Hershberg, Whiteway was of above average intelligence, with nocognitive disabilities and did not suffer from any mental condition or disorder. Dr.

Hershberg testified that Whiteway had an “acute griefreaction” to his friend’s murder, but it was not “abnormal.” [42] As a general rule, expert evidence from a psychiatrist following recognized psychiatric procedures is receivable on aperson’s mental capacity and state of mind (Wilband v. The Queen, (SCC), [1967] S.C.R. 14 at 21-22; and R. v.Giesbrecht (E.H.) (1993), (MB CA), 85 Man.R. (2d) 69 at para. 20 (C.A.), aff’d, (SCC), [1994] 2S.C.R. 482).

However, in circumstances such as these, the judge did not need the specialized assistance of a psychiatrist to considerWhiteway’s reaction to ordinary stress from an external cause, because the effect grief plays on normal persons is not beyond theknowledge and experience of a judge or a jury (R. v. Abbey, (SCC), [1982] 2 S.C.R. 24 at 42). Therefore, I seriouslydoubt that Dr. Hershberg’s opinion was admissible at all in this trial, because the expert evidence did not meet the Mohan criterion ofnecessity (R. v. Mohan, (SCC), [1994] 2 S.C.R. 9 at 23-25; and R. v.

Pearce (M.L.), 2014 MBCA 70 at para. 89, 310Man.R. (2d) 14).

Was the evidence the judge accepted reasonably capable of supporting the conclusion that the murders were planned and deliberate? [43] A verdict of first degree murder based primarily on circumstantial evidence is not unreasonable merely because otherinferences may be possible on the evidence, so long as planning and deliberation are proven beyond a reasonable doubt (The Queen v.Mitchell, (SCC), [1964] S.C.R. 471 at 478-79). [44] The question for this court is on a cumulative assessment of the evidence, and its effect, whether the judge could havereasonably concluded that the only rational conclusion was that the murders were planned and deliberate.

If the evidence of planning ordeliberation was equivocal or speculative, then the verdict for first degree murder is unreasonable (R. v. Duck (N.J.) and Duck (J.)(1993), (MB CA), 85 Man.R. (2d) 91 at paras. 36-38 (C.A.)). [45] The evidence satisfies me the verdicts are sound. [46] Sutherland made at least one violent threat involving a firearm on his ejection from the party.

He then convinced othersat Sochaski’s house to return to the party for a purpose all agreed to before the taxi was called. [47] Key to the reasonableness of the verdicts is that the collaborators made a conscious choice to escalate their weapons. Earlier in the evening, the appellants and their friends were armed with knives at the party without a need to resort to them, even whenSutherland and B.N. were ejected.

There is no suggestion that anyone else at the party was armed with a weapon or that, if they returnedto the party, the four might face a threat that they could not address with either fisticuffs or knives. Deciding to bring a loaded shotgunto the party in such circumstances is highly incriminating. [48] There are also two important aspects of the circumstances of the shooting itself. Neither appellant made any attempt todiscuss the earlier ejection when they entered Hawula’s residence or physically confront anyone.

That fact coupled with the brevity oftheir time in the house supports a powerful inference that they shared a prearranged objective that they both wished to achieve quickly. That inference is further supported by Whiteway’s deliberate and controlled targeting of the shotgun. Finally, the victims shared thecommon characteristic of being present in the doorway of Hawula’s residence when Sutherland and B.N. were ejected.

Conclusion [49] The nature and effect of all of the evidence admissible against Whiteway satisfies me that the judge reasonablyconcluded that the only rational conclusion was that the murders were both planned and deliberate. Whiteway has not suggested therewas a fundamental flaw in the judge’s reasoning process that led to the verdicts and I see none. Whiteway’s Sentence Appeal [50] Whiteway’s sentence appeal is without merit. The shootings were a despicable and senseless act of cold-bloodedmurder. Fate alone saved the third victim.

I would deny Whiteway leave to appeal his sentence as he has not presented an arguable caseto vary the life sentence for attempted murder (R. v. Amin (W.U.), 2010 MBCA 15 at para. 9, 251 Man.R. (2d) 137). Sutherland’s Conviction Appeal Was the evidence reasonably capable of supporting the conclusion that Sutherland knew the shotgun was loaded? [51] I am not convinced by Sutherland’s argument that the verdicts are unreasonable because there was insufficient evidenceto establish he knew the shotgun was loaded.

It is unnecessary to repeat the circumstantial evidence on which knowledge may beinferred because Sutherland’s confession is enough to support the finding of knowledge. [52] During the course of minimizing his involvement and denying knowing the shotgun was loaded, Sutherland also madecontradictory admissions to police that he knew the shotgun was loaded. [53] Unlike Sochaski and Delorme’s evidence, Sutherland’s confession provided direct evidence that the plan devised atSochaski’s house was a revenge shooting. Sutherland revealed to police that when he told the others about being ejected from the party,

Whiteway said: “People are getting done in for fricking touching you.” Sutherland told police that he “backed out of it” and “didn’twant to go there to shoot nobody.” He said he “didn’t want no part of that shit.” Sutherland’s statement to the police is premised on theidea that a plan to shoot people at the party was discussed and agreed to before the group left Sochaski’s house.

Otherwise, what wasSutherland backing away from that involved shooting? [54] Sutherland’s explanation to police for going into Hawula’s residence just before the shooting was also based on theassumption he knew a shooting was to take place at the party. Sutherland told the police that the reason he entered Hawula’s residencefirst was that he was running ahead to warn people at the party. He stated: “I tried to warn everybody and it didn’t work, man.

When Iwas about to say something fucking came in, boom.” This establishes clearly that Sutherland knew that the shotgun was loaded andWhiteway was about to shoot several people. [55] While Sutherland was under no obligation to testify at trial, his failure to testify in the face of the highly incriminatingevidence as to his knowledge is a factor that this court can consider in assessing the reasonableness of the verdicts (Corbett v. TheQueen, (SCC), [1975] 2 S.C.R. 275 at 280-81; and R. v. Noble, (SCC), [1997] 1 S.C.R. 874 at paras.101-109).

All of the evidence satisfies me that the judge could reasonably have found that Sutherland knew the shotgun Whitewaypossessed was loaded before he shot anyone at the party. Did a misapprehension of the evidence cause a miscarriage of justice? [56] When the stringent requirements set out in Lohrer are met, appellate intervention is required for a misapprehension ofevidence, even if the evidence in the trial is capable of supporting the verdict (Lohrer at para. 1; and R. v.

C.L.Y., 2008 SCC 2 at para. 19,[2008] 1 S.C.R. 5). [57] I would group Sutherland’s alleged misapprehensions of the evidence by the judge into four categories: the “blow thisplace to shit” threat, the events of the taxi ride, the targeting of the victims, and when and where the shotgun was loaded. [58] The alleged error of the judge attributing the “blow this place to shit” threat to Sutherland, instead of B.N., is nothingmore than a rearguing of the weight to be attached to the evidence. I see no palpable and overriding error with the inference the judgedrew of attributing the threat to Sutherland (R. v.

W.E.B., 2012 MBCA 23 at para. 13, 275 Man.R. (2d) 289). [59] I have not been persuaded by Sutherland’s argument that the judge was mistaken as to the events of the taxi ride becausethe taxi driver gave conflicting evidence of whether he or Sutherland raised the topic of the driver waiting and the only passenger thedriver actually testified that he saw with a covered face was Sutherland.

If these findings are truly misapprehensions of evidence, at bestthey are insubstantial errors of detail on peripheral matters and are not reversible errors (Lohrer at para. 2). [60] Sutherland also says the shootings were not targeted, but were random. He cites three examples. Bolton, who the judgefound had initiated the ejection of Sutherland and B.N. from the party, was not shot. Whiteway pointed the shotgun at Hawula’s motherwho was an innocent bystander and then shot K.S. who testified he did not participate in ejecting Sutherland and B.N. from the party.

Inmy view, none of these points assist Sutherland’s appeal. [61] Disagreeing with a trial judge’s findings on appeal by suggesting a different possible

interpretation of the evidence doesnot amount to a misapprehension of the evidence for the purposes of appellate review (Lee at para. 4). In his reasons the judge explainedwhy each of these points raised by Sutherland did not affect his conclusion that the victims shot were targeted.

Deference is owed to thejudge’s evaluation of the evidence and findings of credibility in the absence of palpable and overriding error, which I do not see (W. (R.)at pp. 131-32; and Gagnon at para. 10). [62] Sutherland’s final alleged misapprehension of the evidence by the judge relates to when the shotgun was loaded and inwhose presence that was done. [63] I agree with Sutherland that the judge’s finding that the shotgun was “unloaded” when it was taken from its case (atpara. 30) is not supported by Delorme’s evidence.

Earlier in his reasons (at para. 18), the judge correctly summarized Delorme’stestimony that he did not know if the shotgun was loaded when it was first produced on the night of the shootings. Delorme did,however, testify that when he had last seen the shotgun a few days prior to the shootings, Sochaski had shown him that it was unloaded. [64] Sochaski testified that the shotgun was not in his house on the night of the shootings, but had been moved by B.N. out ofthe house a few days before. The judge disbelieved that evidence.

Sochaski, however, also testified that when the shotgun wasoriginally brought into his house by B.N. it was unloaded and it was stored unloaded. He said he did that, “Because of [his] children, ifthey did find it, they may shoot somebody or themselves.” [65] I am not satisfied that it is readily obvious that the judge was mistaken when he said the shotgun was unloaded on theday of the shootings when it was produced from its gun case (Sinclair at para. 53).

While the judge may have misapprehended theevidence as to whether the shotgun was stored unloaded, in light of Sochaski’s evidence about not storing the shotgun loaded because ofthe children living in the house, as confirmed by Delorme’s observation a few days before the shootings, I am not satisfied that thejudge’s finding that the gun was unloaded when it was produced from its case can be said to be a mistake as to the substance of theevidence.

Even if it was, it does not meet the stringent standard set out in Lohrer to amount to a reversible error. [66] I do, however, agree with Sutherland that the judge’s finding that the shotgun was taken out of its gun case in thepresence of others besides Delorme is not supported by Delorme’s evidence. Delorme was never asked who was present when theshotgun was first produced from its case. [67] However, I do not see this error as central to the judge’s reasoning.

As I will explain momentarily, striking this findingfrom the judgment would not leave the judge’s reasoning on which the conviction was based on “unsteady ground” (Sinclair at para. 56;and R. v. Storheim (S.K.W.), 2015 MBCA 14 at para. 47).

[68] What is important to the judge’s reasoning as to planning and deliberation is his finding that the shotgun was loaded atSochaski’s house. That act confirms a plan to murder for the purpose of revenge had already been devised and set in motion.

The judgeexplained the significance of this fact to his reasoning as follows (at para. 31): .… That they made a decision to go back with a loaded shotgun makes it clear beyond speculation that they then and there planned to goback to use the shotgun to shoot and kill those people whom [Sutherland] had identified as those who had shown disrespect for him andB.N. by throwing them out of the party. [69] When I look at all of the circumstantial evidence in context, and not in isolation, I am unconvinced that the judge’sconclusion that the shotgun was loaded at Sochaski’s house with the knowledge of all present was a misapprehension of the evidence. [70] It is not disputed by anyone that the shotgun was loaded before the four individuals entered the taxicab.

Whether allfour were present exactly when the shotgun was loaded, as the judge found, is not essential to the verdicts. What is essential to theverdicts is that the collaborators knew that the shotgun was loaded before they got into the taxi. As mentioned previously in discussingWhiteway’s appeal, the evidence of the events inside Hawula’s residence by Whiteway and Sutherland, clearly support a prearrangedplan which they desired to achieve rapidly.

Additionally, in the case of Sutherland, his confession, as previously explained, allows forthe inference that he knew, before he left Sochaski’s house, that the shotgun was loaded and the plan was to use it to shoot people at theparty. [71] Sutherland has not convinced me that the judge’s finding that the shotgun was loaded at Sochaski’s house meets theexacting standard set out in Lohrer to amount to a reversible error. Conclusion [72] Taking into account all of the evidence, the verdicts against Sutherland were ones that the judge could reasonably haverendered.

Also, in my view, the fairness of the trial was not compromised by a misapprehension of the evidence. Sutherland’s Sentence Appeal [73] Balancing the relevant sentencing principles and objectives identified in ss. 3(1)(b)(ii) and 38 of the YCJA, as to whetherto impose an adult sentence is an exercise of judicial discretion. Deference will be shown on the exercise of such discretion absent anerror in principle or consideration of an extraneous matter (R. v. D.B., 2008 SCC 25 at para. 101, [2008] 2 S.C.R. 3; and R. v.

Z.T.S.,2012 MBCA 90 at para. 13, 284 Man.R. (2d) 55). [74] I have not been persuaded that the judge disregarded his statutory duty, imposed by s. 38(2)(

d) of the YCJA, to considerthe relevant Gladue factors because he did not discuss those factors at length in his reasons and only made brief reference to what thejudge described as Sutherland’s “tragic upbringing” (2013 MBQB 161 at para. 11, and see para. 25). [75] The judge’s reasons must be read in the context of the reports and assessments filed and the lengthy submissions counselmade as to how much weight he should give to the principles expressed in Gladue as opposed to other relevant sentencing principles (R.v.

R.C.H., 2013 MBCA 108 at paras. 69, 71, 303 Man.R. (2d) 39). [76] In my view, the judge was provided with a clear picture of Sutherland and the relevant Gladue factors. Sutherland was17 and one-half years old at the time of the shootings, unmarried and the father of one child. According to the assessments, he was moreadult-like as opposed to adolescent, in his development as a person. Although without a prior youth record, he was a successful drugdealer with an aggressive personality.

His upbringing was marked by poverty, childhood behavioral and learning difficulties,abandonment by his parents, foster care, substance abuse, the traumatic murder of his brother, exposure to gangs and crime, anddislocation from his Aboriginal culture. While Sutherland professed an intention to abandon his criminal mentality going forward, thejudge was not satisfied that this was likely because he had done little to turn his life around and was a disruptive inmate who posed asafety risk to others. [77] I am satisfied that the judge considered the sentencing principle of restraint, as informed by Gladue.

In addition, thejudge considered other competing principles of the YCJA such as proportionality, rehabilitation, reintegration and the interests of societyto determine whether a youth sentence would hold Sutherland accountable for the offences in question (see ss. 3(1)(b)(ii) and 38 of theYCJA). [78] Taking into account the method of contextual analysis mandated by s. 38(2)(

d) of the YCJA for assessing the moralblameworthiness of an Aboriginal young person, in light of the relevant Gladue factors in this case, I am not satisfied that there is anybasis for appellate interference with the judge’s decision to impose an adult sentence. [79] First degree murder is an aggravated form of murder which evidences a “substantial and high degree ofblameworthiness” (R. v. Harbottle, (SCC), [1993] 3 S.C.R. 306 at 323). While a youth sentence for first degree murderis possible, in theory, such a sentence would not have been reasonable in the circumstances to properly hold Sutherland accountable.

Inmy view, the judge was correct to impose an adult sentence given the extremely violent nature of the offences, the harm done to multiplevictims, their families and the community, Sutherland’s significant moral culpability for orchestrating the shootings, the societal interestin meaningful consequences for serious violent offences and the unfavourable prospects of Sutherland’s rehabilitation and successfulreintegration back into society. Such circumstances favour giving precedence to considerations of proportionality, meaningfulconsequences and retribution (see R. v.

A.A.Z., 2013 MBCA 33 at para. 65, 291 Man.R. (2d) 152). Disposition

[ 80 ] In the result, I would dismiss the conviction appeals of both appellants. I would deny Whiteway leave to appeal his sentence for attempted murder. I would grant Sutherland leave to appeal his sentence, but would dismiss his sentence appeal. J.A. I agree: J.A. I agree: J.A.