R v Tamana, 2022 MBCA 26

Citation: R v Tamana , 2022 MBCA 26 Date: 20220311 Docket: AR21-30-09651 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) M. P. Cook ) for the Appellant ) Respondent ) C. R.

Savage ) for the Respondent - and - ) ) Appeal heard and MARACLE TAMANA ) Decision pronounced: ) March 7, 2022 ) (Accused) Appellant ) Written reasons: ) March 11, 2022 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any information that could identify a person as having been dealt with under the Youth Criminal Justice Act (see section 110(1)). COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference.

On appeal from R v Beckley , 2021 MBPC 8 LEMAISTRE JA (for the Court): [ 1 ] The accused was convicted of kidnapping, aggravated assault, robbery with a firearm, unauthorized possession of a firearm without a licence and unauthorized possession of a prohibited device without a licence. The judge imposed a total sentence of 10 years’ imprisonment, reduced to nine years (minus time in custody) for totality. [ 2 ] The accused appeals his convictions and seeks leave to appeal his sentence. [ 3 ] After the hearing, the conviction appeal was dismissed and leave to appeal the sentence was denied with reasons to follow.

These are those reasons. [ 4 ] The victim was walking down the street when the accused, a co-accused and a third male drove up in the accused’s vehicle, got out and approached him. The accused pointed a firearm at the victim while the other two males assaulted him, stole his belongings and forced him into the trunk of the vehicle. While the vehicle was in motion, the victim used the emergency latch in the trunk to escape. He was chased and stabbed before escaping by hiding in a water-filled ditch.

While executing a search warrant at the accused’s residence, the police found the firearm and jewellery stolen from the victim during the robbery. [ 5 ] At the trial, the accused testified and denied involvement in the robbery-kidnapping, and said that the firearm

belonged to the victim who brought it to his residence after a robbery. [6] On the conviction appeal, we are not persuaded that the accused has met the heavy burden of establishing his claim ofuneven scrutiny of the evidence or that the judge erred in her credibility assessments (see R v CAM, 2017 MBCA 70 at paras 32-37). Nor do we accept the accused’s arguments that the judge minimized inconsistencies and gaps in the victim’s testimony, and that thecorroboration was “a mere scintilla” and did not support the victim’s claims. [7] The judge conducted a thorough and fair review of all of the evidence.

She carefully assessed the credibility andreliability of the victim’s testimony and that of the accused, including the inconsistencies and contradictions, and the extent to which it“defie[d] logic” (at para 39). [8] Despite the judge’s conclusion, in the context of the W(

D) analysis, that the accused’s evidence could not be believedand did not raise a reasonable doubt, she accepted some of his evidence (see R v W(D), (SCC), [1991] 1 SCR 742). Forinstance, she accepted the accused’s evidence that he bought the “cougar” ring (at para 47(1)) locally and his girlfriend wore one of thechains he purchased. [9] The judge approached her assessment of the victim’s evidence with caution and appropriately treated him as anunsavoury witness (see Vetrovec v The Queen, (SCC), [1982] 1 SCR 811). She was careful to look for corroborationbefore accepting his testimony.

She acquitted the co-accused of the kidnapping, aggravated assault and robbery charges, finding that itwould be unsafe to convict him based on the victim’s identification evidence.

However, it was undisputed that the victim and theaccused knew each other and the conditions of observation were optimal. [10] The judge relied heavily on the presence of the victim’s DNA on the emergency latch of the accused’s trunk and thefact that the firearm used during the commission of the offences was found in his residence as corroboration of the victim’s evidence. [11] In our view, the judge was entitled to make the findings that she did; they were reasonably available on the evidentiaryrecord. [12] We are also not convinced that the judge misapprehended the accused’s evidence about how the victim’s DNA mayhave gotten on the emergency latch in his trunk.

Therefore, we dismissed the conviction appeal. [13] When imposing sentence, the judge allocated the initial 10-year sentence of imprisonment to each of the offences in thefollowing way: • kidnapping—eight years; • aggravated assault—six years concurrent to the eight-year sentence; • robbery with a firearm—six years concurrent to the eight-year sentence; • unauthorized possession of a firearm without a licence—two years consecutive to the eight-year sentence; and • unauthorized possession of a prohibited device without a licence—two years concurrent to the two-year sentence, but consecutiveto the eight-year sentence. [14] After applying the principle of totality, the judge reduced the total 10-year sentence to nine years by reducing thesentences for the weapons offences to one year concurrent on each count, but consecutive to the eight-year sentence. [15] The accused does not allege, and we do not see, any error in principle in the judge’s approach to sentencing and, in ourview, there is no arguable case to be made that the sentence was demonstrably unfit.

We agree that the sentence is “fair”, but fail to seehow the sentence could be “crushing” in light of the accused’s position at the sentencing hearing that a total sentence of “[n]ot more thaneight” years would be appropriate. [16] For these reasons, we dismissed the conviction appeal and denied leave to appeal the sentence. JA JA JA