R. v. Michelle, 2015 MBCA 6

Citation: R. v. Michelle, 2015 MBCA 6 Date: 20150123 Docket: AR13-30-07918 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Freda M. Steel Madam Justice Diana M. Cameron BETWEEN : HER MAJESTY THE QUEEN ) Z. M. Jones ) for the Appellant ) Respondent ) A. Y.

Kotler ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: RAYMOND GEORGE MICHELLE ) December 17, 2014 ) ) Written reasons: (Accused) Appellant ) January 23, 2015 CAMERON J.A. (for the Court): [ 1 ] The accused was convicted of aggravated assault and sentenced to an effective sentence of eight years’ imprisonment, less a four-year credit for approximately two and one-half years of pre-sentence custody that was applied on a 1.5:1 basis. He appealed his conviction and sentence.

He also moved to admit fresh evidence on appeal. [ 2 ] After the hearing, we denied the fresh evidence motion, dismissed the conviction appeal, allowed leave to appeal the sentence, but dismissed the sentence appeal, with reasons to follow. These are those reasons. Facts [ 3 ] The facts in this case are serious and troubling. The trial judge found that the accused participated in a group beating of the complainant, including throwing weights at him, kicking him and hitting him with a crowbar.

The attack culminated with the complainant being stripped naked by a co-accused and cut repeatedly with an exacto knife by the accused. Needless to say, the complainant suffered significant injuries, including numerous deep lacerations to most of his body. The Fresh Evidence Motion [ 4 ] The accused’s conviction rested on the testimony of a Crown witness, Mr. Baker. Mr. Baker had testified earlier in the trial of one of the co-accused involved in the incident, Mr. Jobb. The accused sought to have the transcript of Mr.

Baker’s testimony in that trial admitted as fresh evidence. [ 5 ] The basis for the fresh evidence motion was the accused’s contention that the Crown misled the court by failing to bring to the trial judge’s attention an alleged inconsistency in that Mr. Baker admitted that he assaulted the complainant at the time of the incident when he testified in Mr. Jobb’s trial, yet he denied it when he testified at the accused’s trial.

The accused claimed that this failure caused him to be unable to make full answer and defence, thereby resulting in a miscarriage of justice. [ 6 ] We were all of the view that a review of the transcripts did not show the inconsistency alleged by the accused. [ 7 ] In Mr. Jobb’s trial, Mr. Baker testified as follows:

Q: What did you do to [the complainant]? A: Nothing. Q: Nothing? A: Pushed him, that’s about it. Q: Ah. How many times? A: Pardon me? Q: How many times? A: Once. Q: (Inaudible) at what point did you do that, Mr. Baker? A: It was the beginning. Q: Pardon? A: The beginning, after he spit at [a co-accused]. Q: You pushed him and what happened to him? A: He got hit. Q: Pardon? A: He got hit. Q: You got hit by whom? A: No, he got hit. Q: He got hit? Not by you?

A: No. After this exchange, the matter was not explored any further by Mr. Jobb’s counsel. [8] In the accused’s trial, Mr. Baker testified as follows: Q: So, just a very few quick questions then Mr. Baker. In - what happened that night at the trailer you’re implying that you never hadanything to do with the assault, correct? A: No, I didn’t. Q: You never pushed him? A: I tried to stop. Q: One second please, My Lady, I just need to find some notes. [9] After referring to a page in a statement Mr.

Baker had previously given, counsel for the accused (not the same as inthis proceeding) asked the court for another minute and then said, “I apologize I’ll leave that question.” [10] As can be seen from the above, Mr. Baker’s answer, while vague and ambivalent, did not lead to the inconsistencyalleged by the accused: that Mr. Baker admitted to pushing the complainant in the co-accused’s trial, while denying it in the accused’strial. That is, the words “I tried to stop” did not necessarily constitute a denial. [11] Moreover, we disagreed with the accused’s contention that the admission of the push in Mr.

Jobb’s trial conclusivelyamounted to an admission of an assault on the complainant. Rather, we agreed with the Crown that the circumstances surrounding thepush were not adequately explored in either trial to allow for such a conclusion. [12] Even if an inconsistency had been shown to have existed, we disagreed with the accused’s contention that the Crown’sfailure to disclose Mr.

Baker’s testimony would have resulted in a breach of his s. 7 right, Canadian Charter of Rights and Freedoms(the Charter), to disclosure and a breach of The Law Society of Manitoba, Code of Professional Conduct, Winnipeg: Law Society ofManitoba, 2010, ch. 5.6. The evidence referred to was contained in the written decision of the trial judge in Mr. Jobb’s trial and, by thetime of the accused’s trial, had been reported on The Canadian Legal Information Institute (online: http://www.canlii.org), afree legal research website.

It was public information easily available to anyone and, therefore, not subject to Crown disclosure rules. See R. v. Davey, 2012 SCC 75 at para. 46, [2012] 3 S.C.R. 828. [13] Finally, the accused did not convince us that, had the trial judge known about the testimony regarding the push givenby Mr. Baker in Mr. Jobb’s trial, the result would have been any different. The evidence called in the two trials was not the same. Moreevidence, that was confirmatory of Mr. Baker’s testimony, was called at the accused’s trial than at Mr. Jobb’s. The trial judge was aliveto the concerns about Mr.

Baker’s reliability and credibility. Her reasons show that she accepted his evidence based, in large part, on the“abundance” of evidence that confirmed his testimony despite those concerns. [14] It was for these reasons that we denied the accused’s fresh evidence motion. The Conviction Appeal [15] Since the fresh evidence motion was the substance of the accused’s claim that a miscarriage of justice had occurred as aresult of the Crown’s failure to disclose, there was no basis for us to interfere with the verdict.

The Sentence Appeal [16] As earlier stated, the accused appealed his effective sentence of eight years’ incarceration. At the sentencing hearing,the Crown asked for a period of incarceration of 12 years, inclusive of the pre-trial detention served at a ratio of 1.5:1. Defence counselargued for five years’ incarceration with double credit for time served. [17] The two principal grounds of appeal on sentence related to Gladue considerations (R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688) and to the amount of pre-sentence custody awarded to the accused. [18] With respect to the first ground, while the sentencing judge reviewed and considered the Gladue factors, she also notedthat the accused had a terrible record consisting of over 50 adult convictions spanning a period of more than 25 years, with many ofthose for violent offences. Further, the pre-sentence report was not positive and indicated that the accused was at a high risk to reoffend.

What was especially troubling was that the report seemed to indicate that his own community was afraid of his violent nature. In the end, we remained unconvinced that the sentencing judge did not give proper effect to the Gladue principles. [ 19 ] We also declined to give effect to the accused’s second ground of appeal.

The sentencing judge’s conclusion that the accused’s extensive criminal record and his poor behaviour in custody made him an unlikely candidate for early release is owed significant deference. [ 20 ] While it may be that the sentence was at the higher end of the range, in addition to the many aggravating factors listed above, the accused twice attempted to interfere with the administration of justice regarding this matter. First, he participated in a group beating of Mr. Baker wherein he uttered threats in an attempt to force Mr. Baker into taking responsibility for the offence. Second, during a recess in Mr.

Baker’s testimony at the trial the accused said to him in Cree “Don’t worry about it; we’ll get a hold of you.” Hence, the effective sentence of eight years’ incarceration was not unfit. [ 21 ] Therefore, for all of the above reasons we denied the fresh evidence motion, dismissed the conviction appeal, allowed leave to appeal the sentence, but dismissed the sentence appeal. J.A. C.J.M. J.A.