R v Maytwayashing, 2018 MBCA 36

Citation: R v Maytwayashing, 2018 MBCA 36 Date: 20180405 Docket: AR17-30-08858 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) R. D. Lagimodière ) for the Appellant ) Appellant ) J.

Kostiuk ) for the Respondent - and - ) ) Appeal heard: BRADLEY MAYTWAYASHING ) February 26, 2018 ) ) Judgment delivered: (Accused) Respondent ) April 5, 2018 On appeal from 2017 MBPC 22 HAMILTON JA [ 1 ] The Crown seeks leave to appeal and appeals the accused’s total sentence of six years for numerous offences arising from a drug robbery and related shooting. The accused intentionally shot the victim in the leg before entering his house and stealing marijuana. [ 2 ] The Crown says that the sentence is demonstrably unfit given the intentional use of a firearm and the accused’s lengthy related criminal history.

It argues that the trial judge misunderstood the length of the accused’s most recent prior sentence for related firearms offences and erred in how he addressed the applicable sentencing principles. [ 3 ] The accused concedes that leave to appeal should be granted in light of the trial judge’s error with respect to his previous sentence, but asserts that the trial judge reasonably applied the applicable sentencing principles and the sentence is not demonstrably unfit. [ 4 ] I would grant leave to appeal and allow the Crown’s appeal.

I would increase the accused’s total sentence from six years to nine years, in the manner explained in these reasons. The Offences and the Sentences Imposed [ 5 ] In June 2014, the accused was living in the small community of Lake Manitoba First Nation. He drove to the victim’s house armed with a loaded .22 calibre rifle to steal marijuana. The accused and the victim argued outside the victim’s home. The accused fired several shots at the ground close to the victim and then intentionally shot him in the leg.

The accused entered the house with the victim and left with a large bag filled with individually packaged bags of marijuana, with a street value between $2,200 and $4,620. [ 6 ] Before leaving the victim’s house, the accused helped the victim put a tourniquet on his leg to stop the bleeding. The victim recovered with no long-term effects. [ 7 ] The accused did not have a firearms licence and was subject to two lifetime firearms and ammunition prohibitions. [ 8 ] The trial judge convicted the accused of numerous offences. He determined that the following sentences, totalling

seven years, were fit and appropriate: • Aggravated assault—six years. • Discharging a firearm with intent to wound—five years concurrent. • Possession of a weapon for a dangerous purpose—six months concurrent. • Unauthorized possession of a firearm in a motor vehicle—six months concurrent. • Possession of a firearm without a licence—six months concurrent. • Possession of an illegal drug/marijuana—one month concurrent. • Possession of a firearm while prohibited by a court order—one year consecutive. [ 9 ] When the trial judge considered totality in light of the consecutive sentence imposed, he found that seven years was “unduly harsh” (at para 24) and reduced the total sentence to six years by decreasing the aggravated assault sentence to five years.

The Circumstances of the Accused [ 10 ] The accused is now 44 years old. He has been in jail most of his adult life; the longest period he has spent in the community is six months. He was a high-ranking gang member for many years. His criminal activity was often gang related.

According to the pre-sentence report, Probation Services records indicate that he is “validated as an ex member of a gang.” [ 11 ] He has a lengthy criminal record for violence, firearms offences and breaches of court orders. [ 12 ] On three previous occasions, he was convicted of offences involving firearms: in 1994, for possessing a weapon for a dangerous purpose (two years concurrent); in 1998, for robbery with a firearm (30 months consecutive); and in 2007, for breach of court orders and firearms prohibitions and weapon-related offences (seven years).

At the 2007 sentencing, the accused received a credit for pre-sentence custody equivalent to four years. Therefore, the go-forward sentence was three years. [ 13 ] The 2007 convictions relate to the accused’s violent retaliatory behaviour after he was ejected from a bar. On that same day he returned to the bar twice. The first time he had a tire iron that he used to smash a window; and the second time he had a sawed-off shotgun that he pointed at people and then fired into the centre of the room. No one was injured. At that time, the accused was subject to two firearms prohibitions.

Pre-Sentence Report [ 14 ] The pre-sentence report details the accused’s difficult upbringing of neglect, abandonment, exposure to violence, frequent relocations and substance abuse. [ 15 ] The accused resided mostly in Winnipeg with his mother until he moved to Lake Manitoba First Nation as a teen to live with his grandmother and be near his father.

In Winnipeg, he lived for a while in foster care, after being apprehended from his mother by Child and Family Services. [ 16 ] The accused’s grandmother went to a residential school and “[a]s a result, [the accused’s] mother experienced physical discipline and a strict upbringing.” While he grew up disconnected from his Aboriginal heritage, he says that he now has a strong connection to it. [ 17 ] When he is released from jail, he wishes to return to his community to be near his family and young son, although he acknowledges that “he has a negative history in his community and has a negative reputation.” He has two older daughters. [ 18 ] He has a Grade 9 education.

Given his time in jail, he has worked only sporadically, mostly as a roofer.

Substance abuse has been a chronic problem and alcohol abuse continues to be so when he is in the community. [ 19 ] Correction Services records indicate that, during his incarceration, he has participated well in various programs from time to time, but there have been many instances of non-compliance and violence, both by and against him. [ 20 ] In 2007, he was diagnosed with antisocial personality disorder. [ 21 ] The pre-sentence report assesses the accused as a very high risk to reoffend, stating that “[t]he [accused’s] criminal history paints the picture that [he] is an extremely violent individual.” Positions at the Sentencing Hearing [ 22 ] The Crown sought ten years’ custody, relying in part on the jump principle that the sentences should reflect the accused’s previous sentences, his propensity for violence and the seriousness of the firearm offences.

The Crown sought nine years for the discharge of the firearm with intent to wound and one year consecutive for possessing a firearm while prohibited. As for the other offences, the Crown sought lesser concurrent sentences, including a sentence of seven to nine years for the aggravated assault. [ 23 ] The accused sought a total sentence of five and one-half years, with four and one-half years for discharging the firearm with intent to wound and aggravated assault, concurrently.

He acknowledged that a consecutive sentence for the possession of a firearm while prohibited, was appropriate and suggested six months to one year. With pre-sentence custody, the accused’s counsel argued that a go-forward sentence of less than two years would permit the court to impose strict probation for three years, to address public safety

issues. He argued that a 60-day concurrent sentence on the drug charge was appropriate and sought two-year concurrent sentences onthe other firearms offences. Trial Judge’s Reasons for Sentence [24] The trial judge reviewed in detail the accused’s personal circumstances.

He noted his propensity for violence whileunder the influence of alcohol and that “[t]here was compelling evidence relating to the accused being under the influence at the time ofthe incident” (at para 14). [25] With respect to Gladue factors (see R v Gladue, (SCC), [1999] 1 SCR 688), he stated (at para 16): [The accused’s] continuing criminal behaviour, going back to his early youth, and this type of seemingly rage or anger fuelled assault isof least partially a result of his harsh and unstable childhood and malformative teen years. . . .

He has basically been coping withminimal support of family, community and Canadian society since early childhood. To quote the [pre-sentence report] - “The effects ofcolonization and residential school(

s) have haunted the subject throughout his life.” [26] The trial judge found the aggravating circumstances to be (at para 17):

a) the use of a firearm per se;

b) the fact that the employment of a firearm essentially made the victim defenceless in the sense that it created a situation wherefighting back or running away were not viable options;

c) the accused knew that he was under court orders not to possess guns;

d) as seen by the mandatory minimum sentence imposed by Parliament, the firing with intent to injure of a loaded firearm is a veryserious offence; and

e) in 2007 he was convicted of a similar offence while prohibited involving the firing of a sawed off shotgun in a crowded bar after hehad been earlier ejected therefrom by security personnel after a physical altercation with same. As such the court concludes that theaccused has demonstrated a propensity to use firearms as well as ignore court orders not to possess same. [27] He found two mitigating circumstances (at para 18):

a) the Gladue factors and his general background which are intertwined, somewhat mitigate his moral blameworthiness insofar asthey provide some insight and context for his addiction to drugs and general anti-social lifestyle and his propensity for violence. TheCourt emphasizes however, that none of this ‘excuses’ what he did, it just explains his underlying drivers to some extent.

b) the accused made efforts to assist the victim of the shooting by helping to apply a tourniquet to his leg after he had been guided tothe victim’s drug cache. [28] Given the accused’s prior convictions, the trial judge concluded that the accused was “disentitled by law to any degreeof leniency” (at para 19).

He viewed the accused as “a significant danger to the community” (ibid), given his risk to reoffend, the violentcircumstances of these offences and his “propensities” (ibid) for violence. [29] He concluded that the primary principles of sentencing were general and specific deterrence and that rehabilitation wasa secondary factor. [30] When addressing totality, the trial judge stated (at para 24): Considering his background and Gladue factors and the significant jump of this sentence compared to his longest previous sentence of

incarceration, I find that it would be unduly harsh to leave the sentence at seven years. Rather, I find that a total sentence of six years is appropriate. I therefore reduce the aggravated assault sentence to five years. [emphasis added] [ 31 ] He granted pre-sentence credit on the basis of 1.5:1, to be deducted from the six-year sentence. This resulted in a go- forward sentence of 723 days. The trial judge did not impose a probationary period to address public safety, as suggested by the accused’s counsel.

Standard of Review, Issues and Positions of the Parties [ 32 ] A judge’s sentencing decision is entitled to deference. If the judge has made an error in principle or in law, failed to consider a relevant factor or erroneously considered an aggravating or mitigating factor, this Court may only intervene where it appears from the judge’s decision that such an error had an impact on the sentence (see R v Lacasse , 2015 SCC 64 at para 44 ) or where the sentence is demonstrably unfit (see Lacasse at para 52 ). [ 33 ] The overarching issue is whether the sentence of six years is demonstrably unfit.

At the heart of this inquiry are the sentences of five years for discharging the firearm with intent to wound and aggravated assault. [ 34 ] The Crown asserts that these sentences are demonstrably unfit given: 1. The accused’s extensive and related criminal history; 2. The nature, number and circumstances of the offences; and 3. The accused’s very high risk to reoffend. [ 35 ] The accused acknowledges that the trial judge erred when he stated that a seven-year sentence would be a “significant jump” (at para 24) from his longest previous sentence of incarceration imposed in 2007.

However, he argues that this error does not impact the fitness of the six-year sentence, which he says, while low, is not demonstrably unfit. Rather, he asserts that this sentence takes into account the meaningful mitigating factors and the absence of significant injury to the victim and is entitled to deference. Analysis—Is the Sentence Demonstrably Unfit? [ 36 ] The error with respect to the 2007 sentence had an impact on the sentence imposed by the trial judge.

He reduced the total sentence of seven years to six years for the reason that a seven-year sentence would be a crushing sentence because of the “significant jump” ( ibid ) from the 2007 sentence. I am of the view that had he understood that there was no jump at all from the effective sentence imposed in 2007, he would have imposed different sentences for the offences of discharging a firearm with intent to wound and aggravated assault.

I say this for two reasons. [ 37 ] First, when determining what sentences to impose for these offences, he would have considered the previous seven-year sentence for related offences. Second, he would not have found a sentence of seven years to be crushing because of a “significant jump” ( ibid ) from the accused’s previous sentence. [ 38 ] I cannot agree with the accused that six years is, nonetheless, a fit sentence. I do not accept that the absence of significant injury in this case is a compelling factor.

I agree that the mitigating factors found by the trial judge are entitled to deference and must be taken into account. However, in the context of these offences and this accused’s history, they are of limited weight. I agree with the Crown that the trial judge failed to give sufficient weight to the seriousness of these offences, the accused’s related criminal history and his disturbing propensity for violence. [ 39 ] Gun-related crime poses “grave danger” ( R v Nur , 2015 SCC 15 at para 1 ) to citizens and firearm-related offences are serious crimes (see Nur at para 6).

Carrying a loaded firearm for criminal purposes poses “a real and immediate danger to the public” ( Nur at para 82, citing 2013 ONCA 677 at para 51 ). Also, see R v Harper (J) , 2016 MBCA 64 . Here, the accused intentionally used a firearm for a drug-related criminal purpose. Not only did he discharge the rifle with intent to wound, he did wound the victim for the purpose of stealing drugs. [ 40 ] Denunciation and deterrence are the paramount sentencing principles for firearm-related offences (see Nur ; and R v Kennedy , 2016 MBCA 5 at para 60 ).

The accused’s criminal history and repeat offending significantly engage the need for protection of the public. However, the trial judge found that the primary principles of sentencing were general and specific deterrence, in the face of his finding that the accused was a “significant danger to the community” (at para 19), with no mention of denunciation. [ 41 ] The offence of discharging a firearm with intent to wound was the most serious offence for this sentencing.

While this offence and aggravated assault both have maximum sentences of 14 years, Parliament legislated a mandatory minimum sentence of four years for discharging a firearm with intent (see sections 244(2) (b), 268(2) of the Criminal Code ). [ 42 ] A mandatory minimum sentence is the starting point for analysis for all offenders. It will be rare that it applies to a repeat offender. In R v Morrisey , 2000 SCC 39 , Arbour J explained the “inflationary floor” (at para 75) created by a minimum punishment ( ibid ):

[T]he mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called “best” offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. [ 43 ] The sentence of five years imposed by the trial judge for discharging a firearm with intent to wound is unfit. The accused is a repeat offender who is subject to lifetime firearms prohibitions.

He has already received a sentence of seven years for related offences. That seven-year sentence did not deter him from reoffending and breaching the lifetime prohibitions imposed on him to protect the public.

In my view, these are circumstances that call for a sentence that is not only significantly higher than the mandatory minimum, but also an incremental increase from the 2007 sentence of seven years for similar criminal conduct (see R v Wright , 2010 MBCA 80 ). [ 44 ] Furthermore, the multiplicity of concurrent sentences for the other offences must be reflected in the sentence for discharge of a firearm with intent to wound to ensure that there is no “free ride” ( R v Wozny , 2010 MBCA 115 at para 65 ) that results in a conviction going unpunished.

Of particular significance in this regard is the conviction for aggravated assault. [ 45 ] In my view, in this case, a proportionate sentence for the offence of discharging a firearm with intent to wound is eight years. This is an incremental increase of one year from the previous seven-year sentence, reflects that the accused is a repeat firearms offender and not a “best offender” ( Morrisey at para 75 ) for the purpose of addressing the mandatory minimum sentence, and gives some weight to the mitigating factors found by the trial judge.

It is also consistent with jurisprudence that sets the range of sentence for “serious gun related offences” ( R v Bellissimo , 2009 ONCA 49 at para 3 ) between seven and 11 years (see Bellissimo ; and R v Jefferson , 2014 ONCA 434 ). [ 46 ] As for the offence of aggravated assault, I would increase the concurrent sentence to seven years from the five years imposed by the trial judge. [ 47 ] I would not disturb the other concurrent sentences nor would I disturb the one-year consecutive sentence for possessing a firearm while prohibited. [ 48 ] The result is a total sentence of nine years allocated as follows: • Discharging a firearm with intent to wound—eight years. • Aggravated assault—seven years concurrent. • Possession of a weapon for a dangerous purpose—six months concurrent. • Unauthorized possession of a firearm in a motor vehicle—six months concurrent. • Possession of a firearm without a licence—six months concurrent. • Possession of an illegal drug/marijuana—one month concurrent. • Possession of a firearm while prohibited by a court order—one year consecutive. [ 49 ] Finally, I am of the view that the nine-year total sentence for these serious offences and this accused is not a crushing sentence that warrants any adjustment on the basis of totality.

I agree with the Crown that a reduction of one year, as the trial judge did, would negate the important public policy rationale for the imposition of a consecutive one-year sentence for possessing a firearm while prohibited and would make the sentence superfluous. Decision [ 50 ] I would grant leave to appeal and allow the appeal. [ 51 ] I would set aside the sentences for the offences of discharging a firearm with intent to wound and aggravated assault. As stated above, for the offence of discharging a firearm with intent to wound, I would impose a sentence of eight years.

For the offence of aggravated assault, I would impose a sentence of seven years concurrent. I would not disturb the sentences for the other offences, including the one-year consecutive sentence for possessing a firearm while prohibited. JA I agree: JA

I agree: JA