R v Ballantyne, 2017 MBCA 4

Citation: R v Ballantyne, 2017 MBCA 4 Date: 20170109 Docket: AY12-30-07830 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN: HER MAJESTY THE QUEEN ) A. J. Kavanagh ) for the Appellant Respondent ) ) J. M. Mann- and - ) for the Respondent ) JORDAN JEREMIAH BALLANTYNE ) Appeal heard and ) Decision pronounced: (Young Person) Appellant ) January 9, 2017 Corrected Judgment: A corrigendum was issued on February 24, 2017; the corrections have been made to the text and thecorrigendum is appended to this judgment. NOTICE: Pursuant to section 110(2)(

a) of the Youth Criminal Justice Act, the prohibition on publication set out in section 110(1)does not apply when the young person received an adult sentence. CHARTIER CJM (for the Court): [1] The sole issue on the first degree murder conviction appeal is whether a Vetrovec warning was necessary for a certainCrown witness, called D (see Vetrovec v The Queen, (SCC), [1982] 1 SCR 811). For the Crown, D was a key eyewitness to the murder. For the young person, D was a key player in one of his two defences: that it was D, not he, who shot the victim. [2] There is no merit to this ground.

First of all, counsel for the young person did not request a Vetrovec warning, nor didshe object to it not being in the jury instructions when she received the pre-charge. Moreover, there was a tactical reason for experiencedtrial counsel not to request a warning. Had the warning been given, the trial judge would have had to alert the jury to all of thecorroborating evidence supporting D’s testimony that he witnessed the shooting, as opposed to being the shooter, as claimed by thedefence. Simply put, the Vetrovec warning would have weakened one of the two defences the young person was advancing.

In ourview, and as stated in R v Brooks, 2000 SCC 11, [2000] 1 SCR 237, “the defence had a clear tactical advantage in not requesting aVetrovec warning in this case” (at para 19). [3] With respect to the sentence appeal, the young person argues that the sentencing judge placed too little weight onGladue factors (see R v Gladue, (SCC), [1999] 1 SCR 688) and too much weight on Dr. Hildahl’s “speculativeevidence” regarding concerns over his rehabilitation prospects because of ongoing gang links.

We disagree. [4] The reasons show that the sentencing judge carefully reviewed all of the sentencing material and that she specificallyturned her mind to the Gladue factors. As a gang-motivated premeditated murder, the young person had a high level of moralculpability. The evidentiary record showed that the young person had a deeply entrenched history with the gang. More importantly,there was no credible evidence that he had disassociated himself from it. Dr. Hildahl stated that, unless the young person found “thestrength to move away from his gang identification”, his rehabilitative prospects remained poor.

In our view, Dr. Hildahl was stating theobvious and it was most certainly open to the sentencing judge to find that his rehabilitative progress was wanting.

[ 5 ] In the end, the sentencing judge found that a youth sentence would not be long enough, firstly, to reflect the seriousness of the offence and the young person’s role in it and, secondly, to provide reasonable assurance of the young person’s rehabilitation to the point where he could be safely reintegrated into society ( see R v CTH , 2015 MBCA 4 at para 26 , 315 ManR (2d) 56 ). While no one can absolutely predict future conduct, the sentencing judge’s outlook with respect to the young person’s behaviour was reasonable in all of the circumstances.

Appellate intervention is unjustified. [ 6 ] For these reasons, the conviction appeal is dismissed and, while leave to appeal sentence is granted, the sentence appeal is also dismissed. CJM JA JA CORRIGENDUM February 24, 2017 TO WHOM IT MAY CONCERN: Re: R v Ballantyne , 2017 MBCA 4 Docket No. AY12-30-07830 Released on January 9, 2017 The attached decision replaces the previous decision which was released January 9, 2017. In the second paragraph, the word collaborating was replaced with the word corroborating .

The sentence in question now reads as follows: Had the warning been given, the trial judge would have had to alert the jury to all of the corroborating evidence supporting D’s testimony that he witnessed the shooting, as opposed to being the shooter, as claimed by the defence.