R v Flett et al, 2021 MBCA 104

Citation: R v Flett et al, 2021 MBCA 104 Date: 20211213 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Freda M. Steel Madam Justice Diana M. Cameron Docket: AR20-30-09446 ) BETWEEN : ) ) Her majesty the queen ) M. S. Bhangu ) for the Appellant Respondent ) J. N. J. Flett ) - and - ) ) R. T. Amy and Jedidiha nostradamus joseph ) C. M. A. Glawson Flett ) for the Appellant ) F. J. P. Guiboche ( Accused) Appellant ) ) - and - ) M. J. Dyck and ) J. F. Rogala Docket: AR20-30-09502 ) for the Appellant BETWEEN : ) M. D. Flett ) Her majesty the queen ) ) D. C.

Sahulka Respondent ) for the Respondent ) - and - ) ) Appeals heard and frank james paul guiboche ) Decision pronounced: ) December 13, 2021 (Accused) Appellant ) ) - and - ) ) Docket: AR20-30-09503 ) BETWEEN : ) ) Her majesty the queen ) ) Respondent ) ) - and - ) ) Marvin david flett ) ) (Accused) Appellant )

On appeal from 2019 MBQB 116 chartier cjm (for the Court): [1] Five accused were jointly charged on a 12-count indictment. After trial, the judge convicted all five on three of the12 counts; being one count of break and enter with intent to commit an indictable offence, and two counts of aggravated assault. Threeof the five accused, which include Marvin David Flett (Flett) and Frank Guiboche, were also found guilty of reckless discharge of afirearm into a home. One count was stayed by the Crown. On the remaining seven counts, the accused were found not guilty.

Three ofthe five accused (the three accused herein) have appealed their convictions. Flett has also appealed his sentence. [2] The submissions of the three accused on conviction are that the trial judge erred in her application of Vetrovec v TheQueen, (SCC), [1982] 1 SCR 811 (the first ground), and that the verdicts are unreasonable, particularly because of herfindings in regard to sections 21 and 22 of the Criminal Code (the second ground).

Flett’s submission on the sentence appeal is that thesentence was harsh and excessive. [3] With respect to the first ground, while a trial judge sitting alone is not required to self-instruct on Vetrovec, herreasons demonstrate that she did caution herself appropriately. Moreover, they show that she did an extensive review of the evidence ofthe two Vetrovec witnesses, including the inconsistencies therein.

She considered their evidence with the greatest care and caution andcorrectly noted that it would be “dangerous” (at para 33) to rely on their evidence unless it was confirmed by another witness or otherevidence. The trial judge noted that there was no evidence of collusion between the two Vetrovec witnesses (see para 41). [4] The reasons also show that the trial judge used the admissible evidence of one of the two unsavory witnesses toconfirm the testimony of the other.

In the absence of evidence of collusion or collaboration, it was open to the trial judge to do so (seeR v Pelletier, 2012 ONCA 566 at para 69; and R v Labossière, 2014 MBCA 89 at para 72). After review, we are satisfied that theevidence she relied on was capable of providing such confirmation. The applicable standard of review requires us to show deference toher findings in this regard. Finally, the trial judge’s reasons also clearly demonstrate that, on the six counts where she was unable to findconfirmatory evidence, she did not convict.

We are all of the view that the inconsistencies pointed out by the three accused were notsufficiently material to warrant appellate intervention on this ground. [5] Regarding the second ground, we are all of the view that the evidence offered ample support for the trial judge’sconclusion that these three accused participated in the incident that led to the aggravated assault convictions, and that Flett participated inthe firearms incident, either as principals or parties.

Her conclusion was based on a consideration of the evidence as a whole, includingthe evidence immediately prior to and after the violent beatings, which led to the aggravated assault convictions, and the shootingincident, which led to the firearms convictions. [6] We are all satisfied that the evidence in its totality establishes that the three accused had sufficient involvement in theincidents to ground their convictions. It was clear that Flett gave instructions throughout the incidents and that he was the driving mind.

In regard to Jedidiha Flett, he argued that although he was present at the beatings, he did not participate. While mere presence is notenough to form the basis for a conviction, the evidence shows that he participated in the entire planning of the event and was indeed thevice-supervisor. In the end, it cannot be said that these verdicts are unreasonable. [7] Accordingly, the conviction appeals are dismissed. With respect to the sentence appeal, leave to appeal is denied. CJM JA JA