R v Beardy, 2016 MBCA 68

Citation: R v Beardy, 2016 MBCA 68 Date: 20160624 Docket: AR15-30-08371 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Madam Justice Janice L. leMaistre BETWEEN: HER MAJESTY THE QUEEN ) B. F. Greenberg ) for the Appellant ) Respondent ) N. P. Steen ) for the Respondent- and - ) ) Appeal heard:JULIUS DAVID JAMES BEARDY ) February 23, 2016 ) (Accused) Appellant ) Judgment delivered: ) June 24, 2016 LEMAISTRE JA Introduction and Issues [1] The accused appeals his conviction and seeks leave to appeal his sentence. The accused was convicted after trial ofthree counts of robbery under

section 343(

d) of the Criminal Code (the Code), one count of robbery under

section 343(c), possession of aweapon for a dangerous purpose under

section 88, use of an imitation firearm while committing an indictable offence under section85(2)(

a) and three counts of unlawful possession of identity documents under

section 56.1. He was sentenced to four years’ incarcerationconcurrent for the robbery offences, one year concurrent for possession of a weapon for a dangerous purpose, one year consecutive foruse of an imitation firearm and six months concurrent for the possession of identity documents. The total sentence was five years.

Theaccused was given credit for 18 months of pre-sentence custody on a 1:1 basis. [2] The accused argues that the trial judge misapprehended the evidence, thereby reaching an unreasonable verdict, and failedto take into account the principles articulated in Vetrovec v The Queen, (SCC), [1982] 1 SCR 811, when assessing theevidence of a co-accused. He also argues that the trial judge erred by concluding there was a common intention carried out in therobbery.

Finally, the accused argues that the trial judge erred by failing to give him enhanced credit for his pre-sentence custody. [3] For the reasons that follow, I would uphold the conviction, grant leave to appeal the sentence and credit the accusedfor pre-sentence custody on the basis of 1.5:1. Facts [4] At 11:30 p.m. on September 24, 2013, four young men were getting into their vehicle after seeing a movie at the St.Vital Centre when a red van pulled in front of them. Four men got out of the van. One of them was carrying what turned out to be animitation firearm (the gunman) and had a bandanna covering his face.

The gunman told the victims to surrender their property. After heand one of the other assailants took their wallets and a backpack, the gunman struck one of the victims with the gun, knocking him to theground. Another of the assailants told the other three victims to lie on the ground facing down as the assailants left the scene. [5] One of the victims observed the license plate of the van and called 911 within minutes of the robbery. The police

were dispatched at 11:38 p.m. They obtained the address of the van’s registered owner and, anticipating the route the driver would taketo his residence, began travelling towards the scene of the robbery. The police were southbound on St. Mary’s Road when they observeda van matching the description and license plate of the suspect vehicle travelling northbound. [6] Police stopped the van at 11:47 p.m., immediately after it turned right onto Eugenie Street. They executed a high-risktakedown of the van due to the alleged involvement of a firearm in the robbery. The accused got out of the passenger side of the van.

The police found three men in addition to the accused in the van, as well as three jackets, a bandanna and some of the stolen property,including identification belonging to some of the victims. The police found other property stolen during the robbery, and a black pelletgun that looked like a machine gun, along St. Mary’s Road not far from where the van was stopped. [7] The four men were charged with a number of offences for the robbery at the St. Vital Centre. They were alsocharged with offences related to another robbery earlier that evening. Approximately 30 minutes prior to the robbery at the St.

VitalCentre, a male was robbed by three men who emerged from a dark-coloured van in downtown Winnipeg. One of the robbers brandishedan imitation firearm. [8] The accused was tried alone. He was convicted for his involvement in the robbery at the St. Vital Centre, butacquitted of all charges regarding the earlier robbery. The evidence at trial included testimony from the victims of the robberies andTanner Traverse (Traverse), one of the co-accused. At the time of sentencing, the accused sought enhanced credit for 18 months of pre-sentence custody.

The trial judge found that the accused had been denied bail due to his prior record but that, because this finding hadnot been endorsed in writing, as required by section 515(9.1) of the Code, he had the discretion to grant or deny enhanced credit. Citingthe accused’s recent and related record, the trial judge declined to grant the accused enhanced credit, notwithstanding his good behaviourwhile on parole and his finding that “the possibility of parole exists”.

Positions of the Parties [9] On the conviction appeal, the accused argues that the trial judge misapprehended the evidence when he concludedthat there were four participants in the robbery, and that the three jackets found in the van were worn during the robbery. He also arguesthat the trial judge erred by accepting parts of the testimony of the co-accused Traverse without looking for confirmatory evidence, andby not accepting other parts of his testimony that were favourable to the accused.

Finally, the accused argues that there was no evidencethat the accused formed a common intention with the three co-accused to commit the robbery. On the sentence appeal, the accusedargues that the trial judge erred in his exercise of discretion by failing to award enhanced credit for pre-sentence custody. [10] The Crown argues that the trial judge did not misapprehend the evidence—the findings were available on the evidenceand the inferences were reasonably drawn.

The Crown also argues that the trial judge instructed himself appropriately regarding the useof Traverse’s evidence, and that he accepted only those parts of his testimony that were supported by other evidence. Finally, the Crownargues that the evidentiary foundation supports the trial judge’s finding that the accused was involved in the robbery. On the sentenceappeal, the Crown argues that the trial judge reasonably determined that the accused was not entitled to enhanced credit for pre-sentencecustody.

Standard of Review [11] The standard when reviewing a ground alleging misapprehension of the evidence, resulting in an unreasonable verdict,is set out in R v Lohrer, 2004 SCC 80, [2004] 3 SCR 732 (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 to thereasoning 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”. [12] The standard of review for findings of fact and inferences drawn from those facts is palpable and overriding error.

SeeHousen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235; and R v Clark, 2005 SCC 2 at para 9, [2005] 1 SCR 6. [13] Cameron JA commented on the standard of review for Vetrovec warnings in R v Richard (DR) et al, 2013 MBCA 105,299 ManR (2d) 1 (at para 85): The decision of a trial judge about whether to give a Vetrovec warning, and the nature and extent of the warning, is discretionary andtherefore entitled to deference. A discretionary decision should be interfered with only “if the trial judge misdirects himself or if hisdecision is so clearly wrong as to amount to an injustice”. (R. v.

Regan (G.A.), 2002 SCC 12 , [2002] 1 S.C.R. 297; 282 N.R.1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, at para. 117.) In R. v. Brooks (F.A.), 2000 SCC 11 , [2000] 1 S.C.R. 237;250 N.R. 103; 129 O.A.C. 205; 2000 SCC 11, Bastarache, J., described the standard of review of a trial judge’s decision about whetheror not to give a Vetrovec warning as “[p]rovided there is a foundation for the judge’s exercise of discretion, appellate courts should notinterfere” (at para. 24). See also R. v. C.C.Y. (2001), 2001 SKCA 107 , 213 Sask.R. 120; 260 W.A.C. 120; 2001 SKCA 107, atpara. 20; R. v.

Harriott (A.) (2002), (ON CA), 168 O.A.C. 342; 58 O.R.(3d) 1; 161 C.C.C.(3d) 481 (C.A.), at para.16; R. v. Wood (D.W.) et al. (2007), 2007 BCCA 563 , 248 B.C.A.C. 255; 412 W.A.C. 255; 2007 BCCA 563, at para. 30; andR. v. Truelove (T.), [2010] O.A.C. Uned. 482; 2010 ONCA 608, at para. 6. [14] Whether the trial judge erred in finding the accused guilty as a party to the offence involves a determination as towhether the verdict is one that a properly-instructed jury or a judge could reasonably have rendered. See R v RP, 2012 SCC 22 at para 9,

[2012] 1 SCR 746; and R v Wright (NA), 2013 MBCA 109, 303 ManR (2d) 26. [15] Credit for pre-sentence custody is a discretionary decision entitled to deference absent an error in principle. See R vStonefish (ST), 2012 MBCA 116, 288 ManR (2d) 103. Analysis (

i) Misapprehension of the evidence [16] The accused submits that the trial judge misapprehended the evidence when he found that there were four peopleinvolved in the St. Vital Centre robbery, and when he drew the inference that the accused was wearing one of the jackets found in thevan during that robbery. This requires a more detailed review of the evidence at trial. [17] All four victims testified at trial.

Daemon Sawa was uncertain about how many individuals got out of the van, butdescribed what the gunman was wearing. [18] Brandon Schurko (Schurko) testified on direct examination that four people got out of the van—two from the slidingdoor on the driver’s side and two from around the back of the van.

On cross-examination, he agreed that at least three people got out ofthe van—the driver, the gunman and the person who took his backpack—but he was not entirely sure whether there were more thanthree people. [19] Michael Johnson-Lemire (Johnson-Lemire) testified on direct examination that four people got out of the van.

On cross-examination, he agreed that he was focussed on the driver and the gunman, and he was uncertain whether there were a total of three orfour people involved in the robbery. [20] Randy Doerksen (Doerksen) testified that there were four people involved in the robbery, and he did not resile from thatposition on cross-examination. [21] Traverse testified on direct and cross-examination that he and three others were outside of the van at the St. Vital Centrewhen the robbery took place.

However, he agreed with a suggestion made by defence counsel that it was possible they picked up theaccused along the road after the robbery. [22] It is trite to say that a trial judge may accept or reject the evidence of a witness in whole or in part. See R v R (D), (SCC), [1996] 2 SCR 291 at para 93; and R v François, (SCC), [1994] 2 SCR 827 at 837. The trial judgeaccepted Doerksen’s evidence as to how many people got out of the van. He described Doerksen as “sure” and “not shaken in [his]observation” that four people got out of the van.

Similarly, he believed Traverse’s testimony that all four men were outside of the van atthe St. Vital Centre. A fair reading of the trial judge’s reasons demonstrates that, in light of his acceptance of Doerksen’s credibletestimony on this point, he accepted Traverse’s evidence in direct examination, and rejected that part of the cross-examination ofTraverse where he agreed with suggestions made by defence counsel that contradicted this and other evidence. [23] I now turn to the accused’s argument regarding the inference the trial judge drew with respect to the change of clothes.

The trial judge reviewed the evidence regarding the clothing worn by the assailants.

He noted that all four victims described the clothingas dark, “[t]he opportunity to observe [the accused] was negligible” and “[i]nside the van in various places were a black nylonwindbreaker, a black leather jacket and a grey and red windbreaker . . . and a plethora of stolen items from the two robberies.” One ofthe jackets was found on top of stolen property from the first robbery. [24] The trial judge refused to “speculate how and when clothing was changed or discarded” and placed “little to no weighton the lack of identification of [the accused] by any of the victims”, given the limited opportunity they had to observe him. [25] In light of these findings, the inference that the jackets were used in the robbery was reasonable and logical and, in myview, it was open to the trial judge to draw that inference.

See R v Morrissey (RJ) (1995), (ON CA), 80 OAC 161. [26] In my view, the factual findings of the trial judge and the inferences that he drew were compatible with and grounded inthe evidence, and there was no misapprehension of the evidence affecting the verdict. Therefore, I would not accede to this ground ofappeal. (ii) Vetrovec warning [27] The accused argues that the trial judge did not properly review Traverse’s evidence with the greatest of care andcaution.

The accused also argues that the trial judge erred by accepting parts of the testimony of the co-accused Traverse withoutlooking for confirmatory evidence, and by not accepting other parts of his testimony that were favourable to the accused. [28] The trial judge described Traverse as “an unsavoury witness, inherently unreliable” and acknowledged that histestimony “must be carefully weighed and approached with caution.” In fact, he acquitted the accused of the first robbery because hecould not “say with any certainty who did what and which three were involved . . . and whether or not [the accused] left the vehicle.” [29] The victim in the first robbery testified that he was robbed by three men.

Traverse initially denied being involved in thefirst robbery, indicating it was Samuel Pruden and the Beardy brothers. On cross-examination, he agreed with a suggestion put to him bydefence counsel that he was involved. Ultimately, the trial judge was not prepared to rely on the unconfirmed testimony of Traverse toconvict the accused. [30] The trial judge accepted Traverse’s testimony regarding the second robbery at the St.

Vital Centre that all four menwere outside of the van and involved in the robbery, and that Traverse drove from the scene to the location where the van was stoppedby police with the other three men in the van with him. This testimony is consistent with the testimony of Doerksen, and with the

testimony in direct examination of Schurko and Johnson-Lemire, that four men robbed them.

It is also consistent with the testimony ofthe police that four men were in the van when it was stopped 17 minutes after the robbery. [31] Of note, however, the trial judge did not rely on Traverse’s unconfirmed testimony regarding the quantity of drugs heconsumed that day; who brandished the firearm; who wore the bandanna during the robbery; and that he did not know items were thrownout of the window of the van prior to the arrest. [32] When the trial judge’s reasons are read as a whole, it is clear he did not accept parts of Traverse’s testimony that werefavourable to the accused, because the testimony was not supported by other evidence and was unclear at best.

For instance, the accusedasserts that Traverse was asked about statements in his police interview that somebody in the van was urging the others to “chill and gohome.” Traverse initially denied this was said but then agreed this was in his police statement and so it could have happened. [33] I am satisfied that the trial judge was alive to the need to approach Traverse’s evidence with caution in accordance withVetrovec and did not misdirect himself regarding the use of this evidence.

A review of the evidence demonstrates that he was aware ofthe difficulties presented by Traverse’s evidence and that he instructed himself appropriately. More importantly, he only accepted thoseparts of his evidence that were supported by other evidence. In my view, the trial judge did not err regarding the Vetrovec principles orin their application to the evidence.

Therefore, I would not accede to this ground of appeal. (iii) Parties to the offence [34] The accused argues there was no evidence that he formed a common intention with the three co-accused to commitrobbery, the evidence was unclear regarding the number of people involved in the robbery and the accused did not match the descriptionof any of the assailants given by the victims.

The accused also argues that the trial judge erroneously rejected testimony from Traversewhich pointed to his innocence. [35] As already stated, the trial judge relied upon the testimony of Doerksen, and part of Traverse’s testimony, to convict theaccused of offences regarding the robbery at the St. Vital Centre. He stated: I accept that all four men exited the van. I accept victim Randy Doerksen’s recall that all four were involved, of that he was sure.

Moreover, I believe that Tanner Traverse is telling the truth about all four of them being involved in a robbery (in his fashion) outsidethe van with an imitation firearm.

There was a common intention on the part of all four men at that point to rob these young men. [36] In finding that the accused acted with a “common intention”, the trial judge relied on the following factors: • the four co-accused “were on a quest to find other ‘sources of interest’ and the four young [men] were just that”; • all four co-accused got out of the van when the robbery was committed; • one co-accused used an imitation firearm, one co-accused drove and at least one other collected the property; • the accused was found by the police in the van with some of the stolen property shortly after the offence; and • the accused claimed to be with his brother, and not at the robbery, but the brother had stolen property on his person from the firstrobbery at the time of their arrest. [37] The trial judge found the accused’s claim that he and his brother were picked up, somewhere on Main Street nearBroadway 15 to 20 minutes prior to being pulled over by police on St.

Mary’s Road, to be implausible because this was the same timethat the robbery occurred at the St. Vital Centre, and the van was spotted by police travelling north on St. Mary’s Road about 15 minutesafter that robbery. The van could not be in two places at the same time. [38] Obviously, something more than mere presence and passive acquiescence at the scene of a crime is necessary beforesomeone can be found to be a party to an offence.

Evidence that shows that the accused had knowledge that the offence was going to becommitted, and in some way helped or encouraged the offence, can support a finding that he was a party to the offence. See Dunlop andSylvester v The Queen, (SCC), [1979] 2 SCR 881. Where there is a lack of clear evidence amounting to aiding orabetting, surrounding circumstances and other factors can still lead the trier of fact to conclude that a party’s presence at the scene of theoffence was not innocent, but was for the purpose of aiding or abetting the offence.

These other factors may include: • apprehension at the scene; • rejection of the accused’s explanation for being there; • the particular nature of the offence; • the context in which the offence was committed; and • other circumstantial evidence of guilt. Circumstantial evidence can lead to a finding that an alleged party to an offence was not there by accident, but was there with the purposeof aiding or abetting the offence.

See R v Jackson, 2007 SCC 52, [2007] 3 SCR 514. [39] Presence can be a way of encouraging the perpetrators of the unlawful act and preventing the escape of the victim, thusbeing something more than mere presence and passive acquiescence. See R v Black and six others, (BC CA), [1970]4 CCC 251 (BC CA); and R v Mammolita et al (1983), (ON CA), 9 CCC (3d) 85 (Ont CA). Strength in numbers can,

at times, be a source of encouragement.

See R v Snarch (1969), (QC CS), 7 DLR (3d) 62 (Qc Sup Ct). [40] Turning to the facts of this case in relation to the factors from Jackson: • the accused was apprehended in the van described by the victims as being at the scene of the robbery with three other men; • the robbery took place late in the evening—at 11:30 p.m.; • the van contained property from the robbery and jackets that were worn during the robbery; • the accused’s explanation for being in the van was reasonably rejected as implausible; • the offence involved the robbery of four men with the use of an imitation firearm; • all four co-accused exited the vehicle at the same time, quickly and aggressively, and at least three of them were directly involved(the gunman, the driver and the man who collected property); and • prior to the robbery, the four co-accused were out looking for “sources of interest”. [41] On these facts, it was open to the trial judge to find that the accused had knowledge of the offence taking place and, at aminimum, encouraged the offence by his presence, which created strength in numbers equal to that of the number of complainants and, ifhe did not provide direct aid, he was ready to assist.

His presence was therefore consistent with culpable involvement rather than merelybeing an innocent bystander. [42] In my view, it was open to the trial judge to conclude that the accused was a party to the offence. As a result, I wouldnot accede to this ground of appeal. (iv) Credit for pre-sentence custody [43] The trial judge found that, even though it was not noted in writing that the accused was denied bail based on his priorcriminal record, he retained the discretion to determine whether enhanced credit for pre-sentence custody should be denied.

The accusedargues that this is an error in law because “[s]ection 719(3.1) unequivocally states that section 515(9.1) must be followed for [the denialof enhanced credit in section 719(3.1)] to be invoked”. [44] Enhanced credit under section 719(3.1) of the Code was excluded under section 515(9.1) for those accused who hadbeen denied bail primarily due to a previous conviction. [45] Following the sentencing of this accused, the Supreme Court of Canada ruled on the validity of these provisions.

In R vSafarzadeh-Markhali, 2016 SCC 14, the Court held that the exemption in section 719(3.1) of the Code, barring enhanced credit for pre-sentence custody at a rate greater than 1:1 where the accused was denied bail primarily because of a previous conviction, wasunconstitutional. As a result, I need not deal with this ground of appeal.

See also R v Kovich (GW), 2016 MBCA 19, 326 ManR (2d)101. [46] The trial judge acknowledged that the accused “has done well while on parole and the possibility of parole exists”, butdeclined to grant the accused enhanced credit for pre-sentence custody on the basis of his “very recent and related record”. [47] The accused argues that the trial judge erred in his exercise of discretion by failing to award enhanced credit for pre-sentence custody.

He says that the factors relied upon by the sentencing judge, namely, that the accused had previously done well onparole and that parole was a possibility, support the accused’s position that he was entitled to enhanced credit.

The accused relies on R vSlack (AO), 2015 ONCA 94, 331 OAC 228, for his assertion that offenders in federal institutions face different considerations thanoffenders in provincial institutions regarding entitlement to early release. [48] The Crown argues that the accused’s record and history of institutional misconduct demonstrate that he poses a dangerto the public, which would impact on his prospects for early release.

Therefore, the trial judge’s decision to deny enhanced credit forpre-sentence custody was reasonable and is entitled to deference. [49] Granting credit for pre-sentence custody is a discretionary decision entitled to deference absent an error in principle. Reasons that may justify enhanced credit include, poor remand conditions, unnecessary delay not attributable to the accused and loss ofremission and parole ineligibility. The onus is on the accused to establish a basis for enhanced credit, but that onus is not high.

While aninference in favour of enhanced credit due to the loss of eligibility for early release will usually arise when an accused serves pre-sentence custody, this can be challenged by the Crown. An accused is not ordinarily entitled to enhanced credit when early release willlikely be denied.

See Stonefish at para 27 (citing R v Farrah (D), 2011 MBCA 49 at para 8, 268 ManR (2d) 112); and R v Summers (S),2013 ONCA 147, 304 OAC 322. [50] In Stonefish, Steel JA discussed the difference between early release in federal and provincial institutions (at para 50): Federal statutory release is the concept that applies to sentences served in federal penitentiaries, while “earned remission” is anabatement of a sentence covered by provincial legislation and practice.

Federal statutory release is governed by the Corrections andConditional Release Act, S.C. 1992, c. 20, and provincial remission is governed by the Prisons and Reformatories Act, R.S.C. 1985,c. P-20, and The Correctional Services Act, C.C.S.M., c. C230. See Clayton C. Ruby, Gerald J. Chan & Nader R. Hasan, Sentencing,8th Ed. (Markham: LexisNexis Canada Inc., 2012) (at para. 13.39):

About half of all of those serving determinate federal-length sentences are released at the two-thirds - or “statutory release” - point of their sentence. The other 50 per cent are released by way of parole. Only 2 to 3 per cent of federal prisoners serve every day of their sentences before being released. [ 51 ] The accused had a lengthy criminal record and 14 convictions for institutional misconduct, although the details of the misconduct were not provided.

The accused relied on information from his former parole officer, who was present at the sentencing hearing, that he had done well in the community on parole in the past and would be entitled to be released on parole after serving two- thirds of his sentence. During submissions, the Crown acknowledged that the accused “would be entitled to be released on parole after two-thirds”.

The Crown went on to say that an offender may be eligible for release after serving one-third of a federal sentence, but this accused would not be eligible for release any earlier than two-thirds based on his institutional conduct. [ 52 ] While the accused’s record and institutional misconduct may raise concerns about whether he is likely to commit an offence causing harm, there is insufficient evidence to show how this would disentitle the accused to statutory release, given the narrow authority of the Parole Board of Canada to make a contrary order pursuant to the Corrections and Conditional Release Act , SC 1992, c 20.

The fact that the accused has done well on parole in the past suggests that he is not likely to be denied statutory release. In my view, the trial judge erred in principle in failing to award enhanced credit in these circumstances. I would grant the accused credit for pre- sentence custody at a rate of 1.5:1. Conclusion [ 53 ] For the reasons set out above, I would dismiss the conviction appeal. I would grant leave to appeal the sentence and give the accused enhanced credit for the pre-sentence custody served of 18 months at the rate of 1.5:1, for a total of 27 months’ credit. JA I agree: JA I agree: JA