



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Miazga,









2013 BCCA 38




Date: 20130131

Docket:  CA040498

Between:

Regina

Respondent

And

Sebastian Miazga

Appellant




Before:



The Honourable Mr. Justice Frankel





(In Chambers)




On appeal from: 
Supreme Court of British Columbia, November 6, 2012
(
R. v. Cain
, Vancouver Registry No. 25824)




Counsel for the Appellant:



G. Orris, Q.C. and K.
  Westell





Counsel for the Respondent:



W.J.S. Bell





Place and Date of Hearing:



Vancouver, British
  Columbia

January 10, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 31, 2013








Reasons for Judgment of the
Honourable Mr Justice Frankel:

Introduction

[1]

Sebastian Miazga applies for judicial interim release pending the
hearing of his appeal from his conviction by a judge of the Supreme Court of
British Columbia on a charge of manslaughter.  The trial judge imposed a
sentence of five years, less 228 days credit for the time Mr. Miazga
spent in custody prior to being sentenced.

[2]

For the reasons that follow, the application is dismissed.

Factual Background of the Offence

[3]

Mr. Miazgas conviction relates to the death of Tyson Edwards, who
was attacked by a group of men after he left a night club in downtown
Vancouver.  During that altercation, someone stabbed Mr. Edwards several
times.  The trial judge described the events as follows in his reasons for
conviction ((November 6, 2012), Vancouver Registry 25824 (B.C.S.C.)):

[7]        I am satisfied, upon considering the whole of the
evidence, that Tyson Edwards met his death in the following circumstances: 
Shortly after he walked out of the Richards on Richards night club, about 2:20
a.m. in the morning of Sunday, February 1, 2009, Tyson Edwards was suddenly
assaulted by at least three and possibly four or more men, who acting together
punched him in the head and upper body.  This assault resulted in Mr. Edwards
being on the sidewalk, incapable of defending himself in an effective manner,
if at all, following which the assault was continued by at least two of the
attackers, who kicked him repeatedly in the head and body, after which he was
dragged by one or more of his assailants to the curb, where one of them lifted
his then-limp body up and attempted to bang his head against the curb and
administered more kicks and stomps. The entire incident took no more than about
one minute.

[8]        When Mr. Edwards body was turned over after
the last assailant had left, he was limp and his eyes were rolling backwards. 
He was then seen to be bleeding profusely from the chest area, which was the
first time any of the observers had noticed any blood on Mr. Edwards.

[9]        I find it to be proven beyond a reasonable doubt
that Tyson Edwards suffered the fatal stab wounds to his chest at some point
during the minute or so that he was being assaulted.  I also find it to be
proven beyond a reasonable doubt that he was stabbed by one of the attackers
conducting the assault observed by the witnesses.  There is absolutely no
evidence to support an inference that the stabbing took place at some other
time or at the hands of anyone other than one of those seen punching or kicking
him.

[10]      No knife or weapon was
ever seen by any of the witnesses.  None was ever found and connected to the
stabbing, and none of the assailants were observed to have anything in their
hands.  It is not possible to decide from the evidence which individual did the
stabbing or when in the assault the stabbing was done.

[4]

Mr. Miazga and three others were charged with manslaughter.  The
trial judge acquitted one of those persons because he was not satisfied he was
one of the attackers.  In convicting Mr. Miazga and the two others, the
judge said,

[17]      I find that all of those persons who took place in
the assault, which started with the sudden punching attack, are joint
perpetrators in the continuation of the assault, which included the kicking and
stabbing.  It was foreseeable when the attack was started that it would be
continued when Mr. Edwards went to the ground.  In committing the assault,
each individual significantly contributed to the cause of Tyson Edwards death
in circumstances in which the law holds them responsible.  Their unlawful
assault was objectively dangerous from the beginning, and it culminated in
Tyson Edwards death.

[18]      Were I to have found
that the stabbing was an intervening act in law, I would still find those who
took part in the beginning of the assault guilty of manslaughter, as the
evidence satisfies me that in the circumstances of the attack on Mr. Edwards,
which took place at closing time outside of a night club, in the downtown area
of the port city of Vancouver, involving a group attack upon one person, that
the use of a weapon was objectively foreseeable by a reasonable person in the
circumstances of the accused from the start.

Mr. Miazgas Personal Circumstances

[5]

Mr. Miazga is a Canadian citizen.  He was born in Poland and immigrated
to Canada with his parents as a young child.  He was 23 years old at the time
of the offence and is now 27.  He has a high school education.  His employment has
been mainly in the construction industry.  His parents, who are no longer
married, live in Metro Vancouver, as do his older brother, half-sister, and
grandmother.

[6]

Prior to his conviction for manslaughter, Mr. Miazgas criminal
record consisted of the following:




March 11,
  2008

Vancouver, B.C.



Assault



Suspended. Sentence plus one years probation





October
  17, 2008

Calgary, Alberta



Impaired
Driving

Failure
  to Provide a Breath Sample

Possession
  of a Scheduled Substance





$850 fine
  plus one years driving prohibition

$850
  fine

$100
  fine





March 18,
  2010

Calgary,
  Alberta



Driving
  While Disqualified





$750 fine
  in default 10 days




Mr. Miazgas Compliance with Previous Bail
Conditions

[7]

Mr. Miazga was arrested for manslaughter in December 2009.  He was
released on a recognizance in the amount of $10,000.00 without sureties, but with
a cash deposit in that amount.  The recognizance included a number of
conditions, including a curfew.

[8]

On June 8, 2011, Mr. Miazga was arrested for breach of the curfew
condition.  In the affidavit he swore in support of the present application, Mr. Miazga
deposes that he left the apartment where he was living with his girlfriend
after midnight in order to avoid an escalation in the argument they were
having.  His counsel advises that he returned home later that morning and then
drove to the Provincial Court to attend his preliminary inquiry, after telling
his girlfriend to report what had happened to the police.  He was arrested when
he arrived at the courthouse.  Later that day he was committed for trial.

[9]

On July 6, 2011, Mr. Miazga appeared before a judge of the Supreme
Court of British Columbia, admitted to having breached his curfew, and was
again released on bail.  That release was on a recognizance in the amount of
$10,000.00 with a cash deposit in that amount and one surety in the amount of
$1.00.  Mr. Miazgas mother provided the funds for the deposit and was the
surety.  The recognizance contained a number of conditions.  Those included a
requirement that Mr. Miazga live at the residence in Surrey, British
Columbia where his mother and grandmother live and that he obey a 9:00 p.m.
to 6 a.m. curfew.  That residence is jointly owned by Mr. Miazgas
grandmother and brother.

[10]

On January 21, 2012, a vehicle driven by Mr. Miazga was stopped by
a police officer.  In his affidavit, Mr. Miazga deposes that he was
stopped while driving home minutes prior to my curfew, i.e., before 9:00
p.m.  He further deposes that [b]y the time I finished speaking with the
police, I was in breach of the curfew condition of my release, and I was taken
into custody.  According to Mr. Miazga, he was delayed in returning home
because he had difficulty with the breathalyzer installed on my vehicle.

[11]

The Crowns position with respect to what occurred is different.  It
relies on the report to Crown counsel prepared by the officer who stopped Mr. Miazga. 
That report states that Mr. Miazga was stopped at 9:12 p.m. because
the licence plate of the vehicle he was driving did not match the description
of the vehicle for which that plate had been issued.  The vehicle was
registered to another person.  When the officer ran a computer check on Mr. Miazgas
name, he discovered that Mr. Miazga was in breach of his curfew.  Mr. Miazga
acknowledged this and asked not to be arrested.  After arresting Mr. Miazga
for possession of stolen property and breach of his curfew, the officer found
$1,200.00 in cash on Mr. Miazgas person.  The report goes on to indicate
that while being transported to the police detachment, Mr. Maizga ingested
some unidentified substance that caused the police to have him examined by a
doctor.

[12]

On February 1, 2012, Mr. Miazga was found to have breached his bail
conditions on January 21st and the $10,000.00 cash deposit was marked for estreatment. 
He was released by a judge of the Supreme Court on a recognizance of $500.00
with a cash deposit in that amount and one surety in the amount of $1.00.  His
mother again provided the cash deposit and was the surety.

[13]

I was advised that at the February 1, 2012 bail hearing the Crown
opposed Mr. Miazgas release.  However, once the judge decided to release him,
the Crown agreed to the cash deposit being lower than it had been previously.

Grounds of Appeal

[14]

In his notice of appeal, Mr. Miazga alleges that the trial judge
erred in concluding that:

(a)      the stabbing of Mr. Edwards
was not an intervening act;

(b)       the
use of a weapon was reasonably foreseeable in the circumstances; and

(c)       his
actions in assaulting Mr. Edwards significantly contributed to the cause
of death.

Applicable Test

[15]

This application is governed by s. 679(3) of the
Criminal Code
,
R.S.C. 1985, c. C-46.  To obtain release, Mr. Miazga must establish
that:  (a) his appeal is not frivolous; (b) he will surrender himself into
custody when required to do so; and (c) his detention is not in the public
interest.

Overview of the Positions of the Parties

[16]

Mr. Miazga submits his appeal is a strong one and that, if he is
successful, the result will be an acquittal.  He notes that he is a Canadian
citizen who has the support of his family.  He further says that he has no
resources with which to flee.  His grandmother and brother have filed
affidavits indicating that they are prepared to be sureties and that they have
equity of $300,000.00 in the property they own in Surrey.  Mr. Miazgas
brother lives in Port Coquitlam.

[17]

Mr. Miazga acknowledges that what occurred is a tragedy but says
his detention is not required in the public interest.  He submits that his
release on a recognizance with sureties and on strict conditions would be
appropriate.  He suggests that those conditions require him to live at the
Surrey residence and to abide by a night-time curfew.

[18]

The Crown accepts that the appeal is not frivolous, but submits that Mr. Miazga
has not satisfied either of the other two criteria for release.

Analysis

[19]

I will begin by considering the second criterion in s. 679(3), and
the question of whether I am satisfied that Mr. Miazga will surrender
himself into custody in accordance with any order I might make.

[20]

In its opposition to release, the Crown points out that the offence
presently under appeal was committed while Mr. Miazga was on probation as
a result of having been convicted of assault.  The reasons for conviction with
respect to that matter show that the trial judge accepted the evidence of a
witness that Mr. Miagza assaulted a young woman on the street at 4:20 a.m.
by slamming her head into a wall, punching and kicking her, and dragging her by
the hair:  ((March 11, 2008), Vancouver Information No. 191773-K-1 (B.C.
Prov. Ct.)).  The Crown says that the two curfew beaches are a further
indication that Mr. Miazga is not a person who I can be confident will abide
by any terms I might impose.  In addition, the Crown says it has been unable to
find a record of Mr. Miazga having paid the victim surcharge he was
ordered to pay in connection with the assault conviction.

[21]

The Crown also says that Mr. Miazga has been less than forthright
in his affidavit.  It points to the following:

(a)      Mr. Miazga
states, I do have a prior criminal record, and then refers only to the 2008
assault conviction.  He does not mention his four subsequent convictions;

(b)      Mr. Miazgas
version of what occurred when he was stopped on January 21, 2012, differs
significantly from the police report of that incident, particularly with
respect to when he was pulled over; and

(c)      Mr. Miazga
describes the 2008 assault conviction as arising from an argument with my
girlfriend at the time.  However, the reasons for judgment in that matter
indicate a far more serious altercation.

[22]

With respect to this last matter, I do not view Mr. Miazgas
summary description of the incident as being inconsistent with the facts found
by the trial judge in that matter, or as an attempt by Mr. Miazga to
obfuscate.  However, I do have concerns about the other discrepancies in Mr. Miazgas
affidavit and his apparent lack of respect for court orders.

[23]

I consider Mr. Miazgas failure to mention four of his previous
convictions a serious matter; one that causes me to have doubts about both his
truthfulness and trustworthiness.  In this regard, I note that in addition to
his affidavit being misleading as to the extent of his criminal record, his
failure to mention the additional convictions is contrary to s. 19(2)(f)
of the
Criminal Appeal Rules, 1986
, B.C. Reg. 145/86.  That rule
requires an offender who is applying for bail pending appeal to disclose all
convictions during the five years preceding the conviction being appealed.

[24]

The discrepancy between Mr. Miazgas description of what occurred
when he was stopped on January 21, 2012 and that set out in the report to Crown
counsel also gives me concern.  It appears to me that in the affidavit he has
sought to explain away the incident on the basis that the breach of the curfew
was brought about by his being stopped before he was required to be at his
residence.  I find that explanation difficult to accept in light of the fact
that this incident resulted in Mr. Miazgas bail being marked for
estreatment.

[25]

Another matter that gives me concern is that Mr. Miazga proposes to
live in Surrey with his grandmother and mother.  I note that the January 21,
2012 curfew breach occurred when the conditions of his recognizance required
him to live at the same Surrey residence and his mother was both his surety
(albeit for only $1.00) and the person who provided the $10,000.00 cash
deposit.  This causes me to doubt that the potential financial risk to family
members will serve to dissuade Mr. Miazga from breaching any conditions I
might impose.  As well, I note that Mr. Miazgas brother lives some
distance away from the Surrey residence and, therefore, is not in a position to
closely supervise him, particularly at night.

[26]

The cumulative effect of the above mentioned matters is such that I
cannot be confident that Mr. Miazga will surrender himself into custody as
and when required.  For that reason alone, I am not prepared to grant him bail.

[27]

Even if I had been satisfied that Mr. Miazga would surrender
himself into custody, I would still not have granted him bail, as he has not
satisfied the third criterion of s. 679(3), namely, that his detention is
not necessary in the public interest.  As discussed in
R. v. Mapara
,
2001 BCCA 508, 158 C.C.C. (3d) 312 at paras. 32  36, this criterion
engages the question of whether the public interest in the reviewability of a
conviction outweighs the public interest in the enforceability of the
sentence imposed.  The holding in
Mapara
was recently affirmed by a
five-judge division of this Court in
R. v. Gingras; R. v. Porisky
, 2012
BCCA 467.

[28]

I am prepared to proceed on the basis that Mr. Miazga has viable
grounds of appeal.  However, I cannot ignore the fact that he participated in the
attack on Mr. Edwards while on probation for an earlier attack on a young woman
and that he twice breached the terms of his bail on the within matter.  The
totality of Mr. Miazgas conduct evinces that there is a real risk that he
will commit further offences if released, including ones involving violence. 
Releasing a person who poses such a risk would erode public confidence in the
administration of justice.

Disposition

[29]

This application is dismissed.

The
Honourable Mr. Justice Frankel


