R v Hebrada-Walters, 2019 MBCA 102

Citation: R v Hebrada-Walters, 2019 MBCA 102 Date: 20191007 Docket: AR18-30-09060 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Jennifer A. Pfuetzner Madam Justice Lori T. Spivak BETWEEN : HER MAJESTY THE QUEEN ) J. Prober ) for the Appellant Respondent ) ) D. C. Sahulka - and - ) for the Respondent ) JOHNATHAN PATRICK HEBRADA- WALTERS ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) October 7, 2019 O n appeal from R v Hebrada-Walters et al , 2018 MBQB 6 pfuetzner JA (for the Court): [ 1 ] The accused appeals his convictions for several firearm offences.

If the conviction appeal is dismissed, the accused seeks leave to appeal sentence. [ 2 ] The accused was convicted of the following charges and sentenced to a global sentence of six years allocated as follows: • possession of a loaded restricted firearm (a .45 calibre Glock handgun) contrary to section 95(1) of the Criminal Code —five years; • unauthorised possession of a firearm in a motor vehicle contrary to section 94(1) of the Criminal Code —three years concurrent; • possession of a firearm knowing the serial number has been removed contrary to section 108(1)(

b) of the Criminal Code —one year concurrent; and • possession of a firearm while prohibited by an order under

section 109 of the Criminal Code contrary to

section 117.01(1) of the Criminal Code —one year consecutive. [ 3 ] Two Winnipeg Police Service officers testified at the trial. The accused did not testify. The officers were involved in a traffic stop of a vehicle owned and operated by the co-accused. While there was another co-accused (now deceased) in the front passenger seat, the accused was the sole passenger in the back seat. [ 4 ] As the officers approached the vehicle, they observed the accused fidgeting with his hands on the left side of his body and glancing down to his left side.

Despite the officers’ warnings to keep his hands up and on the back of the seat in front of him, he continued to drop his left hand towards his waist. [ 5 ] Concerned for officer safety, one of the officers pulled the accused from the back seat of the vehicle.

The officer testified that, “As he’s going to the ground, I look back into the vehicle and I can see a firearm, a handgun, on the seat of the vehicle right where he was sitting.” [ 6 ] The trial judge found that the “evidence in respect of the guilt of [the accused] in respect of the possession of the .45 Glock handgun is clear and overwhelming” (at para 33). The trial judge considered R v Villaroman , 2016 SCC 33 , and concluded that “there is no reasonable inference other than guilt on the basis of the evidence here, and the Crown’s evidence meets the standard of proof beyond a reasonable doubt” (at para 35).

[ 7 ] With respect to the conviction appeal, the accused says that the trial judge rendered an unreasonable verdict as there was no direct evidence of possession and the circumstantial evidence was equally consistent with innocence as with guilt. [ 8 ] We agree with the accused that the Crown’s case depended on circumstantial evidence.

However, we are satisfied that “ the inferences drawn by the trial judge, having regard to the stan​dard of proof, were reasonably open to him” ( Villaroman at para 67 ) and that the trial judge’s decision “is one that a properly instructed jury or a judge could reasonably have rendered” on the whole of the evidence ( R v RP , 2012 SCC 22 at para 9 ).

Moreover, we agree with the trial judge’s assessment that the evidence was overwhelming, that there was no reasonable inference other than guilt and that the elements of possession were established beyond a reasonable doubt. [ 9 ] With respect to the sentence appeal, the accused says that the sentence imposed is demonstrably unfit as it is harsh and excessive. In support of his argument, he points to R v Nur , 2015 SCC 15 , where the mandatory minimum sentence of three years for a first offence under section 95(1) of the Criminal Code was struck down as breaching

section 12 of the Canadian Charter of Rights and Freedoms on the basis of a reasonable hypothetical. [ 10 ] It is instructive to note that, in Nur , a 40-month sentence was upheld for a 19-year-old first-time offender who was described as “an incredible youth” (at para 21).

In addition, Nur confirmed that “[f]irearm-related offences are serious crimes” (at para 6) and that judges should continue to impose “exemplary sentences that emphasize deterrence and denunciation in appropriate circumstances” (at para 5). [ 11 ] Bearing in mind the accused’s criminal record and the highly deferential standard of review applicable on sentence appeals, we are not persuaded that there is an arguable case that the sentence imposed by the trial judge in the circumstances of this case is demonstrably unfit. [ 12 ] The conviction appeal is dismissed. Leave to appeal sentence is denied. JA JA JA