R. v. Tymiak (G.G.), (2012) 315 B.C.A.C. 220 (CA)

• Judge: Finch, C.J.B.C., Hall and Hinkson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 26, 2012
• Jurisdiction: British Columbia
• Citations: (2012), 315 B.C.A.C. 220 (CA);2012 BCCA 40

R. v. Tymiak (G.G.) (2012), 315 B.C.A.C. 220 (CA);

    535 W.A.C. 220

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. JA.055

Regina (respondent) v. Gregory Glen Tymiak (appellant)

(CA033573; 2012 BCCA 40)

Indexed As: R. v. Tymiak (G.G.)

British Columbia Court of Appeal

Finch, C.J.B.C., Hall and Hinkson, JJ.A.

January 26, 2012.

Summary:

The accused appealed his conviction by a jury on charges of breaking and entering a dwelling-house and committing unlawful confinement, robbery and aggravated assault. His sole ground of appeal related to the adequacy of the Vetrovec warning that the trial judge gave to the jury.

The British Columbia Court of Appeal, in a decision reported at 267 B.C.A.C. 120; 450 W.A.C. 120, dismissed the appeal. The accused appealed his sentence, but then filed a notice of abandonment. The Court of Appeal dismissed the sentence appeal as abandoned. The accused applied to reopen his sentence appeal.

The British Columbia Court of Appeal dismissed the application.

Criminal Law - Topic 4989.5

Appeals - Indictable offences - Powers of Court of Appeal - Power to re-open appeal - [See Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The accused was convicted of breaking and entering a dwelling-house and committing unlawful confinement, robbery and aggravated assault - His conviction appeal was dismissed - His sentence appeal was dismissed as abandoned - The accused applied to reopen his sentence appeal on the principal ground that the sentencing judge did not consider, or consider adequately, the accused's aboriginal heritage as required by s. 718.2(e) of the Criminal Code - The British Columbia Court of Appeal held that it would not be in the interests of justice to reopen the sentence appeal - As was the case before the sentencing judge, there was nothing before the court as to what effect, if any, the accused's claimed aboriginal heritage had on his education, development, antisocial behaviour, or life experience in general.

Criminal Law - Topic 6212

Sentencing - Appeals - Variation of sentence - Considerations - Rehabilitation of accused pending appeal - The accused applied to reopen his sentence appeal - The British Columbia Court of Appeal dismissed the application - The court stated "There appear to be some reasons to believe that [the accused] has made considerable progress towards his ultimate rehabilitation, and that he is developing a more mature and responsible understanding of himself in relation to others. However, these are matters that are properly left to the consideration of the correctional authorities. They may be factors in determining the timing of his ultimate release from custody, and any conditions that may apply upon that release. They are not matters that this Court could properly consider on an appeal from sentence" - See paragraph 30.

Cases Noticed:

R. v. Henry (I.W.M.) (2009), 264 B.C.A.C. 244; 445 W.A.C. 244; 2009 BCCA 12, refd to. [para. 18].

R. v. Clymore (C.R.) (1999), 124 B.C.A.C. 305; 203 W.A.C. 305; 1999 BCCA 225, refd to. [para. 18].

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; 133 C.C.C.(3d) 385, refd to. [para. 21].

R. v. Jimmie (F.M.R.) (2009), 270 B.C.A.C. 301; 454 W.A.C. 301; 2009 BCCA 215, refd to. [para. 30].

R. v. Henry (K.R.) (2002), 174 B.C.A.C. 238; 286 W.A.C. 238; 2002 BCCA 575, refd to. [para. 30].

R. v. Kakekagamick (M.R.) (2006), 214 O.A.C. 127; 81 O.R.(3d) 664; 211 C.C.C.(3d) 289 (C.A.), refd to. [para. 32].

Counsel:

The appellant appeared in person;

M.J. Brundrett, for the respondent;

K.J. Elvin-Jensen, for the intervenor, Attorney General of Canada.

This application was heard at Vancouver, B.C., on January 12 and 13, 2012, by Finch, C.J.B.C., Hall and Hinkson, JJ.A., of the British Columbia Court of Appeal. Finch, C.J.B.C., delivered the following decision for the court on January 26, 2012.