R v Pendl, 2019 MBCA 89

Citation: R v Pendl, 2019 MBCA 89 Date: 20190904 Docket: AR18-30-09059 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Lori T. Spivak BETWEEN : ) S. E. Pinx , Q.C. and ) J. C. Pinx HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) A. Y.

Kotler ) for the Respondent - and - ) ) Appeal heard and FABIAN LUCAS PENDL ) Decision pronounced: ) August 28, 2019 (Accused) Appellant ) ) Written reasons: ) September 4, 2019 Corrected Judgment: A corrigendum was issued on September 9, 2019; the corrections have been made to the text and the corrigendum is appended to this judgment. Cameron JA (for the Court) : [ 1 ] The accused appeals his convictions for break, enter and commit robbery ( section 348(1) (

b) of the Criminal Code ) and forcible confinement ( section 279(2) ) resulting from his involvement in a violent home invasion perpetrated on an elderly man in his residence in rural Manitoba. He seeks leave to appeal and, if granted, appeals his sentence of eight years’ incarceration less credit for three months of pre-sentence custody for the offence of break, enter and commit robbery. [ 2 ] At the hearing of the matter, we dismissed his conviction appeal. We also dismissed his application for leave to appeal sentence.

These are our reasons. [ 3 ] The only evidence directly implicating the accused at his trial was the testimony of a co-accused, Mr. Johnston. Mr. Johnston had entered into an agreement with the Crown to provide testimony. In return, for his admission of his involvement in the offences, he received a sentence of five years’ incarceration as a result of a joint recommendation. [ 4 ] Mr. Johnston described how he planned the break and enter together with the accused. A third person, Mr. Ward, was recruited to be the driver. Donning masks and armed with knives, the accused and Mr.

Johnston broke into the victim’s residence wherein the accused rendered the victim unconscious by putting him in a sleeper hold and Mr. Johnston tied his hands. At some point, while Mr. Johnston was searching for items to steal on the second floor, the victim awoke. The accused demanded to know where the money was, but the victim claimed that he had none. After Mr. Johnston and the accused ransacked the residence for a lengthy period of time, Mr. Johnston helped free the victim from under a pile of strewn items and freed his wrists.

However, prior to leaving, the accused cut the phone line to the victim’s residence. The accused told Mr. Johnston that he had also slashed the victim’s tire. In Mr. Johnston’s estimation, the incident lasted about two hours. Among the items stolen from the residence were a collection of hunting knives. Mr. Johnston stated that he had maintained custody of the stolen items. He said that the accused later attended at his residence and took some of the stolen hunting knives and placed them in his truck. [ 5 ] Three photos were captured by a motion-activated trail camera located outside of the victim’s residence.

The photos were of differing degrees of quality given it was night and the angle of the camera. Two of the photos were entered into evidence. They showed two people near the victim’s truck at 8:22 p.m. and one person at 9:22 p.m. Mr. Johnston and the person he recruited to drive were identified in these photos while the accused was not. A third photo taken at 8:55 p.m. was commented on by the investigating officer, but inadvertently not entered into evidence. Cross-examination of the officer and a review of the statement of the accused

confirmed that this third photo showed three individuals. No one identified the accused in the third photo. [6] The victim was physically injured during the robbery. He received bruising to the face and neck which, based on theevidence of Mr. Johnston, the Crown alleged was caused by the accused. He spent some time in hospital. In addition, the victim wastraumatised to the extent that he has been unable to return to his residence. [7] When he was arrested, the accused stated to police that he had been watching movies with his girlfriend (thegirlfriend) at Mr. Johnston’s residence at the time of the incident.

His statement was entered as evidence. [8] The girlfriend refuted the suggestion that they were watching movies during the evening of the incident. She testifiedthat she was working that evening until 8:00 p.m. In support of her testimony, she provided her work schedule. She also provided ascreenshot of her telephone, which displayed an image of a conversation that she had with the accused prior to leaving work that she hadposted on Facebook at 7:41 p.m. according to the Facebook account. In that conversation, the accused stated that he would not be at Mr.Johnston’s residence when she arrived there after work.

The girlfriend testified that she did not see the accused until a few hours aftershe completed her shift. At that time, she said that she encountered the accused, Mr. Johnston and Mr. Ward while passing by theirvehicle on the road near Mr. Johnston’s residence. She noticed that the accused had bloody and bruised knuckles later that evening. When questioned by the police, the girlfriend directed them to the accused’s truck where a number of hunting knives were discoveredunder the seat.

The girlfriend stated that this was the first time that she had seen the hunting knives and that they had not been there priorto the date of offence. [9] The accused did not testify at his trial. [10] The accused appeals his convictions on the grounds that the trial judge failed to provide adequate reasons; failed tocaution herself in accordance with Vetrovec v The Queen, (SCC), [1982] 1 SCR 811 regarding the testimony of both Mr.Johnston and the girlfriend; that she misapprehended the evidence; that she failed to engage in a W(

D) analysis (see R v W(D), (SCC), [1991] 1 SCR 742); and that the verdict was unreasonable. We disagree. [11] This was a straightforward case. The issues revolving around the credibility of Mr. Johnston and the girlfriend werefront and center. In her reasons, the trial judge recognised that Mr. Johnston was a co-accused. Nonetheless, she found him to becredible and found his evidence to be corroborated, which included her inferring that the hunting knives found in the accused’s truckwere those taken during the home invasion.

She was entitled to draw this inference. [12] Next, the trial judge considered the statement of the accused to the police that he was with his girlfriend at the time ofthe incident. Relying on the evidence of the girlfriend, she rejected his statement. There is no indication that the trial judge found thegirlfriend to be a Vetrovec witness and we are not persuaded that she was required to caution herself in accordance with Vetrovec in thecircumstances of this case (see R v Fatunmbi, 2014 MBCA 53 at paras 36, 43, 56, 61-63 (which case is very similar on the facts)).

Nonetheless, in accepting the evidence of the girlfriend, the trial judge recognised that some of her testimony was suspect. However, shefound that the core portions of her testimony were corroborated by her work records and the screenshot that she posted on Facebook. Based on the finding of corroboration of the most significant aspects of the girlfriend’s evidence, it did not matter that the trial judge didnot specifically state whether or not she was finding the girlfriend to be an unsavoury witness. It is implicated in her reasons that theevidence of Mr.

Johnston and the girlfriend largely corroborated each other. [13] After rejecting the accused’s denial and considering the evidence of the girlfriend, the trial judge stated that, on the“totality of the evidence presented”, she was “satisfied beyond any reasonable doubt” of the accused’s guilt. We agree with the Crownthat, as in R v REM, 2008 SCC 51, her conclusions, when read in context, raise a reasonable inference that the accused’s denial failed toraise a reasonable doubt. A recitation of the W(

D) test was not required. [14] The reasons demonstrate that the trial judge did not misapprehend the evidence. She performed the required analyses. The verdict she reached was one which a properly instructed jury or judge could have rendered (see R v RP, 2012 SCC 22 at paras 9-10). [15] Based on all of the above, we dismissed the conviction appeal. [16] As earlier indicated, we dismissed the application for leave to appeal sentence.

The offence in this case was significant,attracting a range of seven to 10 years (see R v Reilly, 2019 MBCA 84 at para 16, relying on R v R (PS), 1999 CarswellMan 245 (CA); Rv Pakoo, 2004 MBCA 157; and R v McCowan (KJ), 2010 MBCA 45). The accused was the major contributor to the serious physicalharm inflicted on the victim (see

section 348.1 of the Criminal Code). At the time of the offence, the accused was subject to an order ofjudicial interim release and in breach of the condition that he not have contact with Mr. Johnston. There is no arguable case that thesentence was unfit or that the principle of parity applied such that it would make it unfit (see R v Amin, 2010 MBCA 15 at para 9). [17] In the result, both the conviction appeal and the application for leave to appeal sentence were dismissed. JA JA

JA COURT OF APPEAL PROVINCE OF MANITOBA WINNIPEG R3C OP9 CORRIGENDUM September 9, 2019 TO WHOM IT MAY CONCERN: Re: R v Pendl 2019 MBCA 89 Docket No. AR18-30-09059 Released: September 4, 2019 The attached decision replaces the previous decision that was released on September 4, 2019. In para 13, “recantation” has been changed to read recitation .