R. v. B.D.T.W., 2015 MBCA 24

• Judge: MacInnes, Burnett and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 16, 2014
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 24;(2015), 315 Man.R.(2d) 237 (CA)

R. v. B.D.T.W. (2015), 315 Man.R.(2d) 237 (CA);

      630 W.A.C. 237

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MR.011

Her Majesty The Queen (respondent) v. B.D.T.W. (young person/appellant)

(AY 13-30-07966)

Her Majesty The Queen (respondent) v. T.A.R.S. (young person/appellant)

(AY 13-30-08065; 2015 MBCA 24)

Indexed As: R. v. B.D.T.W.

Manitoba Court of Appeal

MacInnes, Burnett and Mainella, JJ.A.

March 2, 2015.

Summary:

The accused young persons, B.D.T.W. and T.A.R.S., were each convicted of two counts of first degree murder and one of attempted murder (see [2012] Man.R.(2d) Uned. 62). They both were sentenced as adults to three concurrent life sentences with the mandatory 10 year period of parole ineligibility. Both appealed from their convictions and from their sentences.

The Manitoba Court of Appeal dismissed the appeals.

Editor's Note: For the decision allowing the Crown's application to have T.A.R.S. sentenced as an adult, see (2013), 293 Man.R.(2d) 225.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 1270

Offences against person and reputation - Murder - General principles - First degree murder - Meaning of "planned" and "deliberate" - The accused young person was convicted of two counts of first degree murder and one of attempted murder - He appealed, asserting that the evidence that the judge accepted was not reasonably capable of supporting the conclusion that the murders were planned and deliberate - The Manitoba Court of Appeal dismissed the appeal - The verdicts were sound - The accused made one violent threat when he was ejected from a house party - Then, he convinced others to return to the party - The group made a conscious choice to escalate their weapons - Deciding to bring a loaded shotgun to a party was highly incriminating - The murders were both planned and deliberate - See paragraphs 43 to 49.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - The accused young person was convicted of two counts of first degree murder and one of attempted murder - He appealed, asserting that the judge's assessments of the credibility of two defence witnesses was not reasonably supported on the evidence - The Manitoba Court of Appeal dismissed the appeal - There was no reason to interfere with the judge's credibility assessments - Both witnesses had reason to shade their evidence to the accused's advantage as they were accomplices with a personal connection to him - Further, the judge's view that there was no reason to bring a loaded shotgun to a house party if the plan was merely, as the witnesses suggested, to talk was a reasonable view of the evidence and was entitled to deference - Finally, the fact that one of the witnesses had pled guilty to manslaughter did not mean that the judge should have taken a more favourable view of that witness' testimony - See paragraphs 33 to 37.

Criminal Law - Topic 4365

Procedure - Charge or directions - Jury or judge alone - Directions regarding expert evidence - The accused young person was convicted of two counts of first degree murder and one of attempted murder - He appealed, asserting that the judge had erred in placing no weight on the defence expert's evidence as to the accused's state of mind because of the failure to prove the opinion's factual basis - The Manitoba Court of Appeal dismissed the appeal - While it was not necessary for every fact relied on by an expert in their opinion to be proven by admissible evidence, before any weight could be assigned to an expert's opinion, some admissible evidence was required to establish the opinion's foundation - Here, it was open to the judge to place no weight on the opinion because it was based almost exclusively on an interview with the accused - Further, it was contradicted by the evidence - Finally, the judge did not need the specialized assistance of a psychiatrist to consider the accused's reaction to extraordinary stress from an external cause (a friend's murder) - The effect that grief played on normal persons was not beyond a judge or jury's knowledge and experience - The opinion may not have met the admissibility criterion of necessity - See paragraphs 38 to 42.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 4806

Appeals - Indictable offences - General principles - Duty of appellate court - The accused young persons were each convicted of two counts of first degree murder and one of attempted murder - Both appealed from their convictions - The Manitoba Court of Appeal discussed the standard of review as to the reasonableness of a verdict and for a misapprehension of evidence in a judge alone trial - See paragraphs 28 to 32.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - The accused young person arrived at a house party with a co-accused who had a loaded shotgun - Three people were shot - Two died and one was permanently maimed - The accused was convicted of two counts of first degree murder and one of attempted murder - He appealed, asserting that the verdicts were unreasonable because the evidence was not reasonably capable of supporting the conclusion that he knew that the shotgun was loaded - The Manitoba Court of Appeal dismissed the appeal - During the course of minimizing his involvement and denying that he knew the shotgun was loaded, the accused also made contradictory admissions to the police that he knew the gun was loaded - These statements clearly established that he knew the gun was loaded and that the co-accused was about to shoot several people - The accused's failure to testify at trial in the face of that highly incriminating evidence was a factor that the court could consider in assessing the verdicts' reasonableness - See paragraphs 51 to 55.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - The accused young person arrived at a house party with a co-accused who had a loaded shotgun - Three people were shot - Two died and one was permanently maimed - The accused was convicted of two counts of first degree murder and one of attempted murder - He appealed, asserting that the judge's misapprehension of the evidence had caused a miscarriage of justice - The Manitoba Court of Appeal dismissed the appeal - Disagreeing with a trial judge's findings on appeal by suggesting a different possible interpretation of the evidence did not amount to a misapprehension of the evidence for the purposes of appellate review - The judge explained why each of these points raised by the accused did not affect his conclusion that the victims shot were targeted - Deference was owed to the judge's evaluation of the evidence and findings of credibility in the absence of palpable and overriding error - There was no such error - See paragraphs 56 to 61.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - The accused young person arrived at a house party with a co-accused who had a loaded shotgun - Three people were shot - Two died and one was permanently maimed - The accused was convicted of two counts of first degree murder and one of attempted murder - He appealed, asserting that the judge's misapprehension of the evidence had caused a miscarriage of justice - The Manitoba Court of Appeal dismissed the appeal - While the judge might have misapprehended the evidence as to whether the gun had been stored unloaded and had erred regarding who was present when the gun was removed from its case, the error was not central to the judge's reasoning - What was important as to planning and deliberation was when and where the shotgun was loaded - That act confirmed that a plan to murder for the purpose of revenge had already been devised and set in motion - There was no reversible error nor had the trial's fairness been compromised by a misapprehension of the evidence - See paragraphs 62 to 72.

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - [See second Criminal Law - Topic 4866 ].

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 5447

Evidence and witnesses - Testimony respecting the accused - Expert opinion respecting accused's state of mind - [See Criminal Law - Topic 4365 ].

Criminal Law - Topic 5508

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Guilty plea or conviction - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The accused young person was convicted of two counts of first degree murder and one of attempted murder and was sentenced as an adult to three concurrent life sentences with the mandatory 10 year period of parole ineligibility - The accused sought leave to appeal, asserting that he should have received a youth sentence - The Manitoba Court of Appeal dismissed the appeal - The court rejected the accused's argument that the trial judge had erred in principle in under-emphasizing the relevant Gladue factors in his decision to impose an adult sentence, rather than a youth sentence - While a youth sentence for first degree murder was possible, in theory, such a sentence would not have been reasonable in the circumstances to hold the accused properly accountable - The judge was correct to impose an adult sentence given the extremely violent nature of the offences, the harm done to multiple victims, their families and the community, the accused's significant moral culpability for orchestrating the shootings, the societal interest in meaningful consequences for serious violent offences and the unfavourable prospects of the accused's rehabilitation and successful reintegration into society - See paragraphs 73 to 79.

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - [See Criminal Law - Topic 5846.1 and Criminal Law - Topic 6211.1 ].

Criminal Law - Topic 6204

Sentencing - Appeals - Variation of sentence - Grounds for refusing to vary sentence - [See Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 6211.1

Sentencing - Appeals - Variation of sentence - Application for leave to appeal (incl. extensions) - Bars - The accused young person was convicted of two counts of first degree murder and one of attempted murder and was sentenced as an adult to three concurrent life sentences with the mandatory 10 year period of parole ineligibility - He sought leave to appeal from the sentence for attempted murder - The Manitoba Court of Appeal denied leave to appeal - The appeal was without merit - The shootings were a despicable and senseless act of cold-blooded murder - Fate alone saved the third victim - The accused had not presented an arguable case to vary the life sentence for attempted murder - See paragraph 50.

Criminal Law - Topic 8817.8

Young offenders - Decisions (incl. punishments) - Adult sentence - [See Criminal Law - Topic 5846.1 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - Acceptance, rejection and weight to be given to expert opinion - [See Criminal Law - Topic 4365 ].

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - [See Criminal Law - Topic 4365 ].

Evidence - Topic 7012

Opinion evidence - Expert evidence - General - Basis for opinion - [See Criminal Law - Topic 4365 ].

Evidence - Topic 7053

Opinion evidence - Expert evidence - Particular matters - Psychiatric or psychological evidence - [See Criminal Law - Topic 4365 ].

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 6].

R. v. Farrant, [1983] 1 S.C.R. 124; 46 N.R. 337; 21 Sask.R. 271, refd to. [para. 9].

R. v. Aalders, [1993] 2 S.C.R. 482; 154 N.R. 161; 55 Q.A.C. 161, refd to. [para. 10].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 11].

R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074; 101 N.R. 108; 102 A.R. 186, refd to. [para. 11].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181, refd to. [para. 12].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 12].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 28].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 29].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 30].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 30].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 31].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161 (C.A.), refd to. [para. 32].

R. v. Sinclair (T.), [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 32].

R. v. Lee (C.J.), [2010] 3 S.C.R. 99; 408 N.R. 129; 490 A.R. 202; 497 W.A.C. 202; 2010 SCC 52, refd to. [para. 32].

R. v. Rowe (J.) (2011), 285 O.A.C. 249; 2011 ONCA 753, refd to. [para. 34].

R. v. Abdallah (G.), [1997] O.A.C. Uned. 303; 125 C.C.C.(3d) 482 (C.A.), affd. [1998] 1 S.C.R. 980; [1998] N.R. Uned. 103, refd to. [para. 35].

R. v. Martin (1980), 53 C.C.C.(2d) 425 (Ont. C.A.), refd to. [para. 37].

R. v. Moore (F.P.) (1956), 40 Cr. App. Rep. 50 (C.A.), refd to. [para. 37].

R. v. Brown, [2008] EWCA Crim. 369, refd to. [para. 37].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 38].

R. v. Wilband, [1967] S.C.R. 14, refd to. [para. 42].

R. v. Giesbrecht (E.H.) (1993), 85 Man.R.(2d) 69; 41 W.A.C. 69 (C.A.), affd. [1994] 2 S.C.R. 482; 168 N.R. 191; 95 Man.R.(2d) 309; 70 W.A.C. 309, refd to. [para. 42].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 42].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 42].

R. v. Pearce (M.L.) (2014), 310 Man.R.(2d) 14; 618 W.A.C. 14; 2014 MBCA 70, refd to. [para. 42].

R. v. Mitchell, [1964] S.C.R. 471, refd to. [para. 43].

R. v. Duck (N.J.) and Duck (J.) (1993), 85 Man.R.(2d) 91; 41 W.A.C. 91 (C.A.), refd to. [para. 44].

R. v. Amin (W.U.) (2010), 251 Man.R.(2d) 137; 478 W.A.C. 137; 2010 MBCA 15, refd to. [para. 50].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 55].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, refd to. [para. 55].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 56].

R. v. W.E.B. (2012), 275 Man.R.(2d) 289; 538 W.A.C. 289; 2012 MBCA 23, refd to. [para. 58].

R. v. Storheim (S.K.W.) (2015), 315 Man.R.(2d) 162; 630 W.A.C. 162; 2015 MBCA 14, refd to. [para. 67].

R. v. D.B., [2008] 2 S.C.R. 3; 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [para. 73].

R. v. Z.T.S. (2012), 284 Man.R.(2d) 55; 555 W.A.C. 55; 2012 MBCA 90, refd to. [para. 73].

R. v. R.C.H. (2013), 303 Man.R.(2d) 39; 600 W.A.C. 39; 2013 MBCA 108, refd to. [para. 75].

R. v. Harbottle (J.), [1993] 3 S.C.R. 306; 157 N.R. 349; 66 O.A.C. 35, refd to. [para. 79].

R. v. A.A.Z. (2013), 291 Man.R.(2d) 152; 570 W.A.C. 152; 2013 MBCA 33, refd to. [para. 79].

Counsel:

L.J. Tailleur, for the appellant, B.D.T.W.;

S.A. Inness and K.L. Jones, for the appellant, T.A.R.S.;

A.Y. Kolter, for the respondent.

These appeals were heard on December 16, 2014, by MacInnes, Burnett and Mainella, JJ.A., of the Manitoba Court of Appeal. On March 2, 2015, Mainella, J.A., delivered the following judgment for the court.