R v Ward, 2020 MBCA 38

Citation: R v Ward, 2020 MBCA 38 Date: 20200325 Docket: AR19-30-09292 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Janice L. leMaistre Madam Justice Lori T. Spivak BETWEEN : HER MAJESTY THE QUEEN ) J. H. Youn ) for the Appellant ) Respondent ) S. L.

Thomas ) for the Respondent - and - ) ) Appeal heard and KYLE WILFRED WARD ) Decision pronounced: ) March 17, 2020 ) (Accused) Appellant ) Written reasons: ) March 25, 2020 On appeal from 2019 MBPC 27 spivak JA (for the Court): [ 1 ] The accused was convicted of discharging a firearm with intent, possession of a restricted firearm and ammunition without a licence, possession of a firearm while prohibited, and possession of ammunition while prohibited.

As a result of those offences, the victim suffered life-threatening injuries. [ 2 ] The trial judge imposed a nine-year custodial sentence. [ 3 ] The accused appeals his conviction on the basis that the trial judge’s credibility findings resulted in an unreasonable verdict and that he gave insufficient reasons for disbelieving the accused’s testimony at trial.

The accused also seeks leave to appeal his sentence, submitting that the trial judge erred when he failed to consider totality and the unexpired portion of a prior sentence he was serving at the time of sentencing. [ 4 ] At the hearing of the appeal, we dismissed the conviction appeal, granted leave to appeal sentence and denied the sentence appeal with reasons to follow. These are our reasons. [ 5 ] The accused was a member of a street gang and contacted police to admit to two shootings of rival gang members that had occurred at a restaurant and a rooming house in Winnipeg.

He was charged with the shooting of Riel Mitchell at the rooming house, as he provided significant detail of the circumstances before, during and after the shooting. He was not charged with the restaurant shooting, as he lacked specifics and provided erroneous information. At trial, the accused denied shooting Mitchell and testified that he had falsely confessed to police to regain standing with the gang and for money to support his girlfriend and son.

He claimed that he obtained information about the incident from other gang members. [ 6 ] The trial judge did not believe the accused’s testimony nor did it raise a reasonable doubt.

In convicting the accused, the trial judge noted that the accused’s detailed confession to police was corroborated by the forensic evidence and evidence of witnesses, including those at the rooming house that day. [ 7 ] An appellate court that reviews a trial judge’s assessments of credibility in order to determine whether a verdict is reasonable cannot interfere with those assessments unless it is established that they cannot be supported on any reasonable view of the evidence ( see R v RP , 2012 SCC 22 at para 10 ; and R v Walker , 2015 MBCA 69 at para 15 ).

Further, the standard of review of a trial judge’s credibility assessments is demonstration of palpable and overriding error ( see R v CAM , 2017 MBCA 70 ).

[ 8 ] The trial judge rejected the accused’s explanation that he lied to police to “take the charge”, viewing his evidence about being offered money as vague and his explanation that he knew about the shooting from others as inconsistent with the precise information in his statement. He considered the accused’s very detailed account to police and how it was confirmed by the testimony of witnesses and the medical, photographic and forensic evidence.

His reasons are adequate to inform the accused of the basis for his decision and to allow appellate assessment of his justification of conviction (see R v Oddleifson (JN) , 2010 MBCA 44 at para 30 ). [ 9 ] Moreover, there is no basis to interfere with the trial judge’s assessment of credibility, which is entitled to deference absent palpable and overriding error. The trial judge’s evaluation of the evidence and credibility assessments are well supported.

We are of the view that the verdict is one that a properly instructed trier of fact could reasonably have rendered. [ 10 ] The conviction appeal was therefore dismissed. [ 11 ] Turning to the sentence appeal, at the time of the accused’s sentencing, he was serving a prior sentence with an unexpired portion of two years and eight months. The trial judge rejected the accused’s argument that the totality principle applies and that the unexpired portion should be taken into account.

He imposed a nine-year total sentence consisting of eight years for the discharge of a firearm with intent, seven years concurrent for possession of a restricted firearm and ammunition without a licence, one year consecutive for possession of a firearm while prohibited and one year concurrent for possession of ammunition while prohibited. [ 12 ] The Crown concedes that the trial judge erred when he declined to consider the unexpired portion of the sentence that the accused was serving for a separate offence as part of the totality analysis.

The trial judge was required to take a last look to ensure that the total sentence was not crushing and respected the principle of proportionality ( see R v Park , 2016 MBCA 107 ). [ 13 ] If an error in principle has occurred and has had a material impact on the sentence imposed, an appellate court can look at the matter from a fresh perspective and impose a sentence that it deems appropriate; or it can find that, notwithstanding the error in principle, the original sentence is still fit and uphold that sentence ( see R v PES , 2018 MBCA 124 ). [ 14 ] Regardless of whether the error in principle committed by the trial judge was material, in our view, a sentence of nine years for these offences and this offender is fit, even after taking into account the factor of the unexpired portion of his prior sentence.

In Park , the Court noted that, most of the time, this factor will not affect the last look significantly. Further, in R v Maytwayashing , 2018 MBCA 36 , this Court endorsed a sentencing range of seven to 11 years for serious firearms-related offences, stressing that gun-related crimes pose a grave danger to the public. [ 15 ] The accused is a longstanding gang member and has an extensive, violent criminal record with two related firearms convictions. At the time of this offence, he was subject to two separate firearms prohibitions. He intentionally shot a rival gang member to protect a crack house.

He used hollow point bullets (known to cause greater harm) and the victim suffered life-threatening injuries. He is assessed at a very high risk to reoffend. [ 16 ] We therefore granted leave to the accused to appeal his sentence, but dismissed the sentence appeal. JA JA JA