R. v. Atatise (B.F.), 2012 MBCA 117

Citation: R. v. Atatise (B.F.), 2012 MBCA 117 Date: 20121217 Docket: AR 11-30-07705 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Richard J. Chartier Mr. Justice Alan D. MacInnes BETWEEN : ) M. Wasyliw HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) D. A. Mann and ) K. Sharma - and - ) for the Respondent ) ) Appeal heard and BRENT FREEMAN ATATISE ) Decision pronounced: ) December 6, 2012 (Accused) Appellant ) ) Written reasons: ) December 17, 2012 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ). CHARTIER J.A. 1 The accused was convicted on one count of sexual assault, one count of sexual touching and two counts of utter threats. He was found to be a dangerous offender within the meaning of s. 753 of the Criminal Code (the Code ) and sentenced to an indeterminate period of incarceration. He has appealed against conviction and sentence. 2 After the hearing we dismissed the appeal, with brief reasons to follow. These are those reasons. 3 The accused argued that the verdict was unreasonable.

More specifically, he contended that it was unreasonable because of errors relating to the judge’s assessment of the credibility of the accused and of the reliability of the complainant’s evidence. As to sentence, the accused submitted that the dangerous offender designation should be vacated and replaced by a long-term offender designation. 4 On the conviction appeal, l ike most sexual offence cases, this case turned on credibility.

The Supreme Court of Canada recently reiterated that, when an appellate court reviews a trial court’s assessments of credibility on an unreasonable verdict ground, it should not interfere with those assessments unless it is established that they cannot be supported on any reasonable view of the evidence (see R. v. R.P. , 2012 SCC 22 at para. 10 , [2012] 1 S.C.R. 746 ). 5 Th e accused submitted that the judge did not consider the evidence in its totality by failing to consider evidence that went to the reliability of the child complainant’s evidence. We disagree.

While ignoring or failing to consider relevant evidence

would be an error in law, rejecting evidence after proper consideration is not. As Doherty J.A. explained in R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), reliability has to do with the accuracy of a witness’s evidence and “involvesconsiderations of the witness’s ability to accurately observe, recall and recount the events in issue” (at p. 526). In this case, it is clearthat the judge did not ignore the evidence that may have raised reliability concerns.

He reviewed that evidence at some length and wasalive to the accused’s concerns, including the number of inconsistencies in the complainant’s testimony and how his evidence may havebeen tainted by his mother’s suggestions to him of sexual abuse. The judge also explained why he accepted or rejected part of thecomplainant’s evidence.

However, and this was key to his decision, he accepted the complainant’s evidence as it pertained to the coreissues surrounding the offences. 6 The accused also argued that, by accepting the evidence of the complainant and rejecting the accused’s version ofevents, the judge convicted on the basis of a credibility contest and thereby failed to properly consider whether the evidence raised areasonable doubt as to his guilt. We are satisfied on review that the judge did not allow the burden to shift away from the Crown simplybecause the accused was not believed (described by Binnie J. in R. v.

J.H.S., 2008 SCC 30 at para. 9, [2008] 2 S.C.R. 152, as the“credibility contest” error). His reasons demonstrate that he respected the substance of the W.(D.) analysis (R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742), did not shift the burden of proof, and correctly applied the principle of reasonable doubt in the context ofhis credibility and reliability assessments.

Moreover, his assessments were reasonably supported by the evidence. 7 For these reasons, the conviction appeal was dismissed. 8 On the sentence appeal, the standard for appellate review of a dangerous offender designation is reasonableness and,while appellate courts need not show the “great deference” usually reserved for sentence appeals, some deference is owed to the judge’sdecision (see R. v. Currie, (SCC), [1997] 2 S.C.R. 260 at paras. 33-34).

This reasonableness standard is similar to anunreasonable verdict review and involves an examination of the weight of the evidence to determine whether it was reasonable for thejudge to make the dangerous offender designation (see Currie at para. 33 and R. v. Daniels (D.), 2011 SKCA 67 at paras. 31-34, 375Sask.R. 1, leave to appeal to S.C.C. refused, [2011] S.C.C.A.

No. 312 (QL)). 9 Moreover, on the question of whether the accused could either be meaningfully treated within a definite time or besafely managed within the community and be designated a long-term offender as opposed to a dangerous offender, the evidence oftreatability must be such that it “is more than an expression of hope” (see R. v. McCallum (N.J.) (2005), (ON CA),196 O.A.C. 101 at para. 47) or “more than a theoretical possibility of control of risk in the community” (see R. v. Natomagan (A.D.),2012 SKCA 46 at para. 32, 393 Sask.R. 130). 10 In the instant case, the accused raised two grounds.

He argued that the judge erred, first, by finding that the accused’sfuture behaviour could not be managed through services provided in the community and, second, by failing to consider relevant evidenceprovided by the expert that the accused could be safely managed in the community. 11 The judge, in considered and comprehensive reasons, correctly stated the applicable legal principles and carefullyconsidered all of the relevant evidence. He detailed the 34-year-old accused’s history and reviewed his lengthy record of previousoffending.

He noted that, in the 15½ years since achieving the age of majority, the accused had only been out of custody for a total of2½ years; that his current conviction for sexual assault was his 7th; that his current sexual assault conviction was his 16th conviction foroffences involving violence; and that his current breach charges bring the total number of convictions to 29. 12 The judge also reviewed the evidence of Dr. Lohrasbe, who was qualified as an expert in forensic psychiatry and inassessing and treating violent and sexually violent offenders.

The expert diagnosed the accused as suffering from anti-social personalitydisorder. He also concluded that, while the accused has significant psychopathic traits, he was not a full-fledged psychopath. The expertopined that, for the foreseeable future, the accused posed a high risk for violence and that his treatment prospects were moderate.

However, he was not prepared to say that there was no reasonable likelihood of managing the risk the accused poses with availableresources in the community. 13 Ultimately, the judge found that the accused met the criteria for the dangerous offender designation under s. 753 of theCode, and that his risk could not be managed to an acceptable level under a long-term offender order.

In arriving at his decision, thejudge noted that, at the time of the predicate offences, the accused was on the Criminal Organization High Risk Offender Unit(COHROU) plan, which provided him with access to support virtually 24 hours a day. This, as the Crown pointed out, and as the judgeaccepted, provided the accused with as much, if not more, supervision in the community than he would have were he under a long-termoffender order.

The judge observed that, despite being given this extensive support and supervision, he committed the offences forwhich he has now been convicted. 14 The accused argued that the judge ignored the expert’s testimony that the accused was not untreatable. We disagree. Again, it is important to distinguish between ignoring evidence and rejecting it. While a judge cannot ignore or fail to consider relevantevidence, a judge is entitled to reject or accept all, or part, or none of an expert’s evidence.

In this case, the judge referenced the expert’sposition in his reasons (2011 MBQB 277 at para. 309): [Atatise’s] lengthy criminal history satisfies me that there is a substantial risk of his re-offending unless and until he addresses andovercomes the serious issues which appear to go hand in hand with his criminal activity. In his assessment, Dr. Lohrasbe found [Atatise]to pose a high risk for violence, and found that his prospects for treatment were moderate.

While he was not prepared to say there was noreasonable likelihood of [Atatise] managing the risk he poses with sources [sic] available in the community, he also was unable to saythere was a reasonable likelihood of that occurring. [emphasis added]

15 From the above, it is clear that the judge did consider the expert’s testimony on the question of safe manageability in the community, but had significant concerns arising from the accused’s continued use of alcohol and his past and ongoing criminal conduct. And he had good reason for this unease. The judge noted (at paras. 317-19): The failure of an accused to benefit from post rehabilitative efforts can be considered. [Atatise’s] history demonstrates that he has failed to address those issues which are of most concern. By his own admission, he easily falls into alcohol abuse for a variety of reasons.

Of significant concern is that he has chosen not to accept responsibility for his alcohol abuse but rather rationalizes that behaviour on circumstances which he says are beyond his control. Dr. Lohrasbe underlined the importance of complete abstinence on the part of [ Atatise ] in the following comments at Page 44 of his report: ... Mr. [Atatise] has clearly demonstrated his inability to control his substance abuse, and substance abuse will be a major focus of future treatment efforts.

There are both direct and indirect consequences to ongoing substance abuse, and it is the single most important specific risk factor in the foreseeable future . Put simply, if Mr. [Atatise] can remain abstinent from alcohol and street drugs, his risk declines substantially and the ability to assist and monitor him in the community correspondingly improves. Conversely, continued substance abuse will inevitably enhance the likelihood of future violence. (Emphasis added) While treatment of alcohol or substance abuse may be available in the community under a long-term offender program, Dr.

Lohrasbe noted that the consequences of any relapses would be so serious as to eliminate it as a reasonable alternative. Programs suitable for [Atatise] are available in the penitentiary system in an environment from which the public will be protected. 16 While the evidence demonstrated that the accused’s risk factors would be greatly diminished if his alcohol addiction were contained, it was also undisputed that, despite the allocation of significant community resources and court-ordered conditions being in place, he had not gained control over his addiction and he continued his violent offending.

After carefully reviewing the evidence in its totality, the judge concluded that the accused could not be managed with a less restrictive sentence such as a long-term offender order. 17 In the end, using the standard of reasonableness to review the judge’s decision, we were not persuaded that he in any way erred. His conclusions were reasonable and supported by the evidence. 18 For these reasons we also dismissed the sentence appeal. J.A. I agree: J.A. I agree: J.A.