



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Tymiak,









2012 BCCA 40




Date: 20120126

Docket: CA033573

Between:

Regina

Respondent

And

Gregory Glen
Tymiak

Appellant




Before:



The Honourable Chief Justice Finch





The Honourable Mr. Justice Hall





The Honourable Mr. Justice Hinkson




On appeal from:  Supreme
Court of British Columbia, 24 November 2005 (
R. v. Tymiak
, Penticton
Docket No. 31330)




The Appellant appeared in person









Counsel for the Respondent:



M.J. Brundrett





Counsel for the Intervenor, Attorney General of Canada:



K. J. Elvin-Jensen





Place and Date of Hearing:



Vancouver, British
  Columbia

January 12
th
and 13
th
, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 26
th
,
  2012









Written Reasons by:





The Honourable Chief Justice Finch





Concurred in by:





The Honourable Mr. Justice Hall

The Honourable Mr. Justice Hinkson








Reasons for Judgment of the Honourable
Chief Justice Finch:

I.

[1]

Mr. Tymiak applies to reopen his sentence appeal which was dismissed as
abandoned by a division of this Court on 14 July 2009.  If the application is
granted, he seeks additional orders for the appointment of counsel and other
relief.  Mr. Tymiak was self-represented on this application, appearing by
videoconference from his place of detention.

[2]

The principal ground put forward for reopening the appeal is that the
sentencing judge did not consider, or consider adequately, Mr. Tymiaks
Aboriginal heritage as required by s. 718.2(e) of the
Criminal Code
.  In
his oral submissions, Mr. Tymiak advanced other grounds as well.  The Crown
opposes the application to reopen.

[3]

The applicant was convicted in British Columbia Supreme Court on
3 December 2004, of a number of offences committed in January 2003,
relating to the home invasion of a residence in Penticton, involving an
assault on one of its occupants.  An appeal from conviction was dismissed by
this Court in reasons pronounced 5 March 2009 (
R. v. Tymiak
, 2009 BCCA
98, [2009] B.C.J. No. 465).

[4]

Following Mr. Tymiaks conviction, the Crown applied for an order
declaring him to be a long-term offender.  In written reasons pronounced
24 November 2005, the sentencing judge made that declaration.  The
judge then imposed a custodial sentence of 12 years, to run concurrently with a
sentence of ten years which the applicant was already serving for offences
committed in Alberta, of which he was convicted on 24 April 2003.

[5]

In addition to the 12-year custodial sentence, the Supreme Court also
imposed a ten year term of supervision in the community, in accordance with
s. 753.2 of the
Corrections and Conditional Release Act
.

[6]

Counsel, on behalf of the applicant, filed a notice of appeal against
sentence.  On 11 June 2009, Mr. Tymiak filed a Notice of Abandonment of the
sentence appeal, and on 14 July 2009, this Court dismissed the sentence appeal
as abandoned.

[7]

As indicated, the basis of this application is that the sentencing judge
did not consider, or consider adequately, the applicants Aboriginal heritage.

II.

[8]

Mr. Tymiak was born on 30 November 1981, and he was 23 years old at the
time the B.C. sentence was imposed.

[9]

There is nothing in the sentencing judges reasons of 24 November 2005,
to suggest that the question of Aboriginal heritage was raised in the hearing
of the long-term offender application.  Mr. Tymiak testified on that hearing,
and it does not appear that he was asked to answer any questions concerning his
Aboriginal heritage.  There is nothing in the transcript of counsels
submissions on that hearing which addresses the matter.

[10]

The Crown points out that Mr. Tymiak has filed no material explaining
why the matter of his Aboriginal heritage was not relied on either at the
sentencing hearing or as a basis of a sentence appeal.

[11]

Mr. Tymiak has now filed an affidavit of his mother, Judith Mary
Beaudry, in which she deposes that her father was part Saulteau, her mother was
part Cree, that she considers herself Métis, and that (as of 3 October 2011)
she was in the process of applying for her Métis status card.

[12]

Appended to Mr. Tymiaks affidavit of 19 July 2011 is a Program
Performance Report on his completion of a program for persons of Aboriginal
descent who are in custody (In Search of Your Warrior Program (ISOYWP)), in
which there are references to the applicants childhood, his experiences as a
victim of bullying, and conflicts with his family.

[13]

Mr. Tymiak draws attention to this passage in the report:

Mr. TYMIAK explored racism and
its impact on violence, and wrote in his journal; This was a good session, I
looked back at racism as an adolescent and how this affected the way I felt
about my ethnic identity.  I knew I could hide behind the colour of my skin,
and did not want to get picked on so I hid part of my identity.  I was ashamed
then, and this played a role at lashing out on other ethnic groups.  I
addressed the issue before coming in (jail) because I respect all ethnic
cultures.

[14]

In his submissions to us, Mr. Tymiak said that the references to his
ethnic identity and to knowledge that he could hide behind the colour of my
skin, meant that he knew as a teenager he had Aboriginal ancestry, but that
that was not apparent from his skin colour, and he kept that ancestry hidden to
avoid being bullied.

[15]

Mr. Tymiak was interviewed prior to his admission into the ISOYWP
program, and the report says this concerning the interview:

Gregory, at the time, was limited
in his knowledge of culture, tradition and Aboriginal Spirituality.  He has
been following the teachings of the sweat at Mission.  He wants to continue to
learn about the teachings and of the ceremonies.  He also wants to research his
Aboriginal background, this is one of the teachings Elders speak about in our
longhouse, identity.  Knowing who you are, your roots, this is part of healing
and change.

[16]

During his time in custody, Mr. Tymiak has also participated in and
completed a program for Aboriginal Offender Substance Abuse.  It records that
he began to use drugs at age 13, and began to consume alcohol at age 11.

[17]

However, as was the case before the sentencing judge, there is nothing
before us as to what effect, if any, the applicants claimed Aboriginal heritage
had on his education, development, antisocial behaviour, or life experience in
general.

III.

[18]

This Court has jurisdiction to set aside an order dismissing an appeal
that has not been decided on its merits.  The test is whether, in all the
circumstances, it is in the interests of justice that the order be set aside or
varied:  see
R. v. Henry
, 2009 BCCA 12, [2009] B.C.J. No. 46 and
R.
v. Clymore
, 1999 BCCA 225, [1999] B.C.J. No. 800.

[19]

Section 718.2(e) of the
Code
is in mandatory terms.  It reads:

A Court that imposes a sentence shall also take into
consideration the following principles:

....

(e)  all available sanctions
other than imprisonment that are reasonable in the circumstances should be
considered for all offenders, with particular attention to the circumstances of
aboriginal offenders.

[20]

It seems clear from the sentencing judges reasons at paras. 32-34,
where he refers in part to ss. 718.1 and 718.2, that the applicants Aboriginal
heritage was not brought to his attention, because s. 718.2(e) is not
mentioned.

[21]

The leading case on the application of s. 718.2(e) is
R. v. Gladue
,
[1999] 1 S.C.R. 688, 133 CCC (3d) 385.  Passages relevant for the purposes of
this appeal include the following:

[69]      ... While background and systemic factors will also
be of importance for a judge in sentencing a non-aboriginal offender, the judge
who is called upon to sentence an aboriginal offender must give attention to
the
unique background and systemic factors which may have played a part in bringing
the particular offender before the courts
. ...

....

[75]      ... Section 718.2(e) requires that sentencing
determinations take into account the
unique circumstances
of aboriginal
peoples.

...

[79]      ... Generally, the more violent and serious the
offence the more likely it is as a practical reality that the terms of
imprisonment for aboriginals and non-aboriginals will be close to each other or
the same, even taking into account their different concepts of sentencing.

[80]      As with all sentencing decisions,
the sentencing
of aboriginal offenders must proceed on an individual (or a case-by-case) basis
:
for
this
offence, committed by
this
offender, harming
this
victim, in
this
community, what is the appropriate sanction under the
Criminal
Code
?

...

[83]      ... for each particular offence and offender it may
be that some evidence will be required in order to assist the sentencing judge
in arriving at a fit sentence. ....

[84]      However, even where counsel do not adduce this
evidence, where for example the offender is unrepresented, it is incumbent upon
the sentencing judge to attempt to acquire information regarding the
circumstances of the offender as an aboriginal person.
Whether the offender
resides in a rural area, on a reserve or in an urban centre, the sentencing
judge must be made aware of alternatives to incarceration
that exist
whether inside or outside the aboriginal community of the particular offender.
...

[85]      Similarly, where a sentencing judge at the trial
level has not engaged in the duty imposed by s. 718.2(e) as fully as required,
it is incumbent upon a court of appeal in considering an appeal against
sentence on this basis to consider any fresh evidence which is relevant and
admissible on sentencing. ...

[Emphasis added.]

[22]

In its summary, the Court stated:

[93]  11.  Section
718.2(e) applies to all aboriginal persons wherever they reside, whether on- or
off-reserve, in a large city or a rural area.  In defining the relevant
aboriginal community for the purpose of achieving an effective sentence, the
term community must be defined broadly so as to include any network of
support and interaction that might be available, including in an urban centre. 
At the same time,
the residence of the aboriginal offender in an urban
centre that lacks any network of support does not relieve the sentencing judge
of the obligation to try to find an alternative to imprisonment.

[Emphasis added.]

[23]

What is clear from this discussion is that while the terms of s.
718.2(e) are mandatory, the purpose of the provision is to direct sentencing
courts to find alternatives to imprisonment, where possible, especially in
cases where the offender is of Aboriginal heritage.

[24]

On the record in this case, in the circumstances of this offender, and
these offences, it is very difficult to see any real alternative to
imprisonment.  As noted at para. 79 of
Gladue
, Generally, the more
violent and serious the offence the more likely it is as a practical reality
that the terms of imprisonment for aboriginals and non-aboriginals will be
close to each other or the same, even taking into account their different
concepts of sentencing.

[25]

The question on this application, therefore, is whether, in all the
circumstances, it is in the interests of justice to reopen the sentence appeal
so that consideration might be given to the appellants asserted Aboriginal
history.  I will assume for this purpose that the appellants mother is Métis,
and that the appellant is similarly entitled to be considered as a person of
Aboriginal heritage.

[26]

On the evidence before us on this application, we are left to speculate
as to what effects, if any, that heritage may have had on the applicant, which
might differentiate him from the non-Aboriginal population.  We do not know
whether any such effects would require the Court to reconsider the long-term
offender declaration, and to impose a custodial sentence of lesser duration.

[27]

There is nothing before us to show that unique background and systemic
factors ... may have played a part in bringing [Mr. Tymiak] before the courts. 
What does emerge from this record, and from the reports on Mr. Tymiaks
participation in the prison programs, is that the factors that may have led Mr.
Tymiak into a criminal lifestyle are common to many offenders, both Aboriginal
and non-Aboriginal.  Those factors include family discord and eventual
separation of his parents, early abuse of drugs and alcohol, disinterest in and
difficulty at school, early association with other young people engaged in an
anti-social lifestyle, a tendency to be easily led, and impulsive behaviour
without regard for consequences.

[28]

Section 718.2(e) is directed to reducing the incarceration of Aboriginal
persons, by finding other appropriate sentences.  It is difficult at this point
to consider that any sentence other than significant jail time would have been
appropriate.  While it is conceivable that there are circumstances in Mr.
Tymiaks past that could serve to mitigate this sentence, there is presently no
evidence of what they might be.

[29]

Mr. Tymiak put forward a number of other grounds of appeal which, in his
submission, might be arguable if his sentence appeal were reopened.  He
referred to the 10 programs he has completed while in custody, to his relative
youth, and to the emphasis that the sentencing judge placed on his prospects
for rehabilitation.  He also referred to indicia suggesting that he is a
substantially reformed person, and that it would be useless for him to continue
wasting his life in prison when he could be out and doing something useful.

[30]

There appear to be some reasons to believe that Mr. Tymiak 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
R. v. Jimmie
, 2009 BCCA 215,
[2009] B.C.J. No. 969 and
R. v. K.R.H.,
2002 BCCA 575, [2002]
B.C.J. No. 2364.

[31]

Mr. Tymiak also suggested that he was not fully advised when he
abandoned his sentence appeal, and that he did not understand the legal
consequences of taking that step.  His former counsel has filed an affidavit,
upon Mr. Tymiak having waived solicitor-client privilege, as to the
circumstances in which Mr. Tymiak instructed her to abandon the sentence
appeal.  I am not satisfied that Mr. Tymiak was not properly advised, or that
the assistance of his then counsel was ineffective.

[32]

Mr. Tymiak directed the Court to consider the Ontario Court of Appeal decision
of
R. v. Kakekagamick
, 214 O.A.C. 127, 211 C.C.C. (3d) 289.  Given the
particular circumstances of Mr. Tymiaks application, this judgment does not
assist him.

[33]

I am therefore of the view that it would not be in the interests of
justice to reopen the sentence appeal.  I would not foreclose that possibility
in the future, if the sort of evidence referred to in
Gladue
became
available.  At this time, however, the possibility of a variation in the
sentence imposed is only hypothetical.

[34]

I would dismiss the application to reopen the appeal against sentence.

The
Honourable Chief Justice Finch

I AGREE:

The Honourable Mr. Justice Hall

I AGREE:

The Honourable Mr. Justice Hinkson


