R v Sanderson (WJ), 2016 MBCA 116

Citation: R v Sanderson (WJ), 2016 MBCA 116 Date: 20161206 Docket: AR15-30-08487 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Freda M. Steel Mr. Justice Alan D. MacInnes BETWEEN: ) S. Zaman andHER MAJESTY THE QUEEN ) J. Kostiuk ) for the Appellant Respondent ) ) N. M. Cutler and- and - ) D. A.

Mann ) for the RespondentWALTER JOSEPH SANDERSON ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) December 6, 2016 On appeal from 2013 MBQB 139; and 2015 MBQB 142, 320 ManR (2d) 307 CHARTIER CJM (for the Court): [1] The accused appeals against conviction as well as his indeterminate sentence as a dangerous offender. [2] The accused also moves to adjourn this appeal because of the Supreme Court of Canada’s recent decision to grantleave to appeal from R v Boutilier (DJ), 2016 BCCA 235, 388 BCAC 264. The Crown opposes the request for an adjournment.

Inthe Boutilier case, the Crown successfully appealed the trial judge’s conclusion that an aspect of

section 753 of the Criminal Codeinfringed

section 7 of the Canadian Charter of Rights and Freedoms. [3] In our view, since the accused was sentenced pursuant to

section 753 of the Code, which may be held to beunconstitutional, it would be in the interest of justice to grant the accused’s adjournment request in regard to the sentence appealonly. [4] This leaves the conviction appeal. The accused argues that the evidence at trial should have left the judge with areasonable doubt and that, as a result, the verdict is unreasonable. Specifically, he argues that the trial judge misapprehended theevidence as to what happened in the porch and kitchen area of the home. [5] We disagree. The verdict turned on credibility.

The reasons show that the trial judge had a firm grasp of theevidence and that he properly instructed himself on the principles enunciated in R v W(D), (SCC), [1991] 1 SCR 742. These findings are entitled to deference. Moreover, when the evidence is considered as a whole, there is nothing unreasonable withrespect to each of the trial judge’s verdicts. Appellate intervention is unwarranted. [6] In the result, the conviction appeal is dismissed. The sentence appeal is adjourned pending the decision of theSupreme Court of Canada in Boutilier on the constitutionality of

section 753. Once that decision has been released, we direct counsel tocontact this Court’s Registrar to reschedule the sentence appeal. CJM

JA JA