R v Assiniboine, 2016 MBCA 44

Citation: R v Assiniboine, 2016 MBCA 44 Date: 20160427 Docket: AR15-30-08404 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) P. D. Smith and ) S. S. Murdoch ) for the Appellant Respondent ) ) R. D. Lagimodière and - and - ) C. T. St. Croix ) for the Respondent CHRISTOPHER KENNETH ) ASSINIBOINE ) Appeal heard and ) Decision pronounced: ) April 27, 2016 (Accused) Appellant ) NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ). BEARD JA (for the Court): I. THE ISSUES [ 1 ] At the conclusion of the hearing of this appeal, the panel indicated that the appeal would be dismissed with reasons to follow. These are our reasons. [ 2 ] The accused is appealing his conviction, by way of trial by judge and jury, for sexual assault and uttering threats on the basis that the verdict was unreasonable, pursuant to section 675(1) (

a) of the Criminal Code . He is also appealing his sentence under section 675(1)(

b) of the Criminal Code on the limited ground that the trial judge erred in the calculation of the credit for pre-sentence custody pursuant to sections 719(3) and 719(3.1) of the Criminal Code . [ 3 ] The accused was charged with sexual assault with a weapon under section 272(1)(

a) and uttering threats under

section 264.1(1)(a), both under the Criminal Code . The jury found the accused not guilty of sexual assault with a weapon but guilty of the included offence of sexual assault simpliciter . He was also convicted of uttering threats. II. THE FACTS [ 4 ] The complainant, who was 18 at the time, was at a Winnipeg night club with friends, where she spent the latter part of the evening. She left at about 2:00 a.m. and was walking home down Portage Avenue when the accused approached her and asked if she wanted to go to a party in the area of Broadway and Sara Avenue. She agreed, so they walked in that direction.

Along the way, they stopped to consume some MDMA that the accused provided. [ 5 ] As they were walking down Balmoral Street south of Broadway, the accused tried to kiss her. She rebuffed him, at which point she said that he pulled out a knife and told her to “lay down and not make any noise or he would kill [her].” She described the knife as being big, with jagged edges and a black handle. The accused then forced her onto the grass and sexually assaulted her, forcing both anal and vaginal sex.

She said that, during this time, he said that, if she made any noise, he would “stab me or hurt me.” [ 6 ] She testified that, during the assault, she managed to call 911 on her cell phone, although she did not speak to the 911 operator. When the assault was finished, the accused made her lie down beside him. She said that the accused held the knife against her and said that he was waiting to see if anybody was coming, because if they were, he was going to stab her. After a few minutes, he told

her to leave, so she did. [7] The Crown made an application to have the accused declared either a dangerous offender or a long-term offender. Aforensic assessment report was prepared by Dr. Holden, in which he concluded that the accused should be declared a long-termoffender. The parties then consented to the trial judge making that order, and the accused was sentenced on that basis.

After reviewinga pre-sentence and Gladue report (R v Gladue, (SCC), [1999] 1 SCR 688) and hearing submissions, the trial judgesentenced the accused to seven and one-half years’ incarceration and gave him credit for the time spent in pre-sentence custody on a 1:1basis. III. THE CONVICTION APPEAL The Positions of the Parties [8] The accused does not take the position that there was any error in the jury charge. He takes the position that it wasincongruent for the jury to acquit him of sexual assault with a weapon but convict him of sexual assault simpliciter and uttering threats.

He argues that the element of the knife was so inextricably woven throughout the facts of the sexual assault that to excise this componentof the complainant’s testimony and still accept her evidence of both the intercourse and the threats is unreasonable. [9] The Crown’s position is that the law is clear that a jury can accept or reject some, all or none of a witness’s testimony. It argues that, while the knife was an important part of the complainant’s testimony of the events immediately before and after the sexualassault, it was not part of the actual sexual assault.

It points out that the complainant did not say what happened to the knife when theintercourse was happening. [10] The Crown also argues that this verdict was put to the jury as an available verdict in the jury charge. It says that the mainissue at the trial was whether the complainant consented to have intercourse with the accused. It points out that, after explaining thatelement of the offence, the trial judge went on to advise the jury that they would have to decide whether the accused used the knife inthe sexual assault.

She said that “If you are not satisfied beyond a reasonable doubt that a weapon was involved, you must find [theaccused] not guilty of sexual assault with a weapon but guilty of sexual assault.” [11] The Crown also points out that the defence counsel at trial (who is not the defence counsel on appeal) did not raise anyconcern about inconsistent verdicts at the sentencing. Standard of Review [12] On this appeal, the defence is challenging the jury’s findings of fact and credibility, alleging that those findings led to anunreasonable verdict. The test for unreasonable verdict sets a very high standard.

In R v Molodowic, 2000 CSC 16 , 2000 SCC16, [2000] 1 SCR 420, a companion case to R v Biniaris, 2000 SCC 15, [2000] 1 SCR 381, Arbour J, for the Court, stated (at para 1): The proper test [to be applied by the reviewing court in examining the reasonableness of a verdict] is “whether the verdict is onethat a properly instructed jury acting judicially, could reasonably have rendered” [R v Yebes, (SCC), [1987] 2 SCR 168at p 185]. . . . [I]t is not sufficient for the reviewing judge to simply take a different view of the evidence than the jury did.

The appealcourt, if it is to overturn the verdict, must articulate the basis upon which it concludes that the verdict is inconsistent with therequirements of a judicial appreciation of the evidence. [13] The Supreme Court of Canada looked at the application of the unreasonableness test to factual findings by a jury in R vPittiman, 2006 SCC 9, [2006] 1 SCR 381, wherein Charron J, for the Court, stated (at paras 7-8): The onus of establishing that a verdict is unreasonable on the basis of inconsistency with other verdicts is a difficult one to meetbecause the jury, as the sole judge of the facts, has a very wide latitude in its assessment of the evidence.

The jury is entitled to accept orreject some, all or none of any witness’s testimony. Indeed, individual members of the jury need not take the same view of the evidenceso long as the ultimate verdict is unanimous. Similarly, the jury is not bound by the theories advanced by either the Crown or thedefence. The question is whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions givenby the trial judge.

The search for a rational or logical basis for the verdicts does not mean that where a narrative of the events is not readily apparentfrom the jury’s findings that the impugned verdict must necessarily be set aside as unreasonable. The jury’s task is not to reconstructwhat happened. Rather, it is to determine whether the Crown has proven each and every element of the offence beyond a reasonabledoubt. [14] More recently, the Supreme Court of Canada revisited this issue in R v WH, 2013 SCC 22, [2013] 2 SCR 180.

CromwellJ, for the Court, summarized the standard of review as follows (at para 2): Of course, a jury’s guilty verdict based on the jury’s assessment of witness credibility is not immune from appellate review forreasonableness. However, the reviewing court must treat the verdict with great deference. The court must ask itself whether the jury’sverdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludesthe conclusion reached by the jury.

[15] Cromwell J took the opportunity to again underline the great deference that is to be shown to a jury’s findings of fact andcredibility, and to explain the reason for that deference (at para 39): One of the main drivers of the great deference paid to the jury’s findings of credibility is that the jurors were present at the trial andsaw and heard the evidence as it unfolded. The jury’s reasoning as to what evidence it accepted and what evidence it did not accept maywell be tied directly to factors flowing from that advantage.

Moreover, the jurisprudence on the sufficiency of reasons recognizes that itis often difficult if not impossible to articulate with precision the various factors that influence an ultimate judgment about a witness’scredibility. [16] Charron JA (as she then was) was faced with a similar issue in R v Tillekaratna (D) (1998), (ON CA),108 OAC 281. Writing for the Court, she stated (at para 6): Although the opinion of the trial judge is not determinative on this issue, I find it instructive to consider his view since he has seenthe witnesses and heard the evidence.

In this case, both counsel addressed the jury in an “all or nothing” fashion. No suggestion wasmade to the jurors by either counsel that they could possibly split their verdict and find the accused guilty of one or more of the chargesand not guilty on the others. The judge charged the jury in like fashion. After the trial judge’s charge, Crown counsel suggested to thetrial judge “more [as] a matter of law than in terms of the facts as summarized” that the jury should probably be instructed that theycould find the appellant guilty of some counts and not guilty of other counts.

Defence counsel disagreed with this suggestion. The trialjudge refused to recharge the jury. Analysis [17] One must examine the evidence to determine whether, in all of the circumstances of the case, proper judicial fact-findingprecludes the conclusion reached by the jury. The jury accepted the complainant’s testimony that she did not consent to the sexual actswith the accused and that he threatened her, but it did not accept her testimony that the accused used a knife. [18] First, it must be noted that the question of whether the accused used a knife was a question of fact.

Based on thecomplainant’s description of the events, the sexual assault and threats could have been committed without the use of the knife. [19] Second, in reviewing the evidence, it is clear that there were inconsistencies in the complainant’s testimony that mayhave given the jury concern as to its reliability and as to her overall credibility. There was, however, independent evidence capable ofsupporting her testimony on the question of whether she consented in the form of her calls to 911, in which a female can be heard to say“No. No. No. No” and “No. Don’t” in the first call and “I don’t want to do this.

No” in the second call. There was no independentevidence to support her testimony about the use of a knife. Looked at in this way, it cannot be said that proper judicial fact-findingprecludes the conclusion reached by the jury. [20] Further, it is instructive to look at the charge that was given.

In the trial judge’s opening comments regarding theelements that were in dispute in relation to the sexual assault charge, she stated: Your focus and the only issues that you need to determine on this count are whether the Crown has proved beyond a reasonabledoubt that [the complainant] did not consent to the sexual activity that took place, and that a weapon was involved; that is, whether [theaccused] was armed with a knife at the time. [21] In dealing with the specific elements regarding the use of a weapon, she stated: If you are satisfied beyond a reasonable doubt that [the complainant] did not consent to the force that [the accused] intentionallyapplied, you must go on to the next question.

Was a weapon involved? While you have already made an assessment of credibility in deciding whether the Crown has proved beyond a reasonable doubtthat [the complainant] did not consent to the sexual activity with [the accused], you still have to decide if the Crown has proved beyond areasonable doubt that a weapon, specifically a knife, was used in the sexual assault. As I told you before, you can accept all, part of ornone of a witness’ testimony.

Whether or not your earlier findings of credibility on the issue of consent are determinative of whether youare satisfied beyond a reasonable doubt that a knife was involved in the sexual assault is up to you.

There is no dispute that a knife qualifies as a weapon. A weapon is involved in a sexual assault if [the accused] carried, used orthreatened to use it in the course of committing the sexual assault. You do not have to agree on how the weapon was involved as long aseach of you is satisfied beyond a reasonable doubt that the sexual assault involved a weapon in one of the ways I have described. [The complainant] testified that when [the accused] pulled out a knife, which he had in his right hand, he grabbed her with his lefthand and told her to lie down and not make any noise.

She described the knife as big with a black handle and jagged edges at the point. She said that after he had intercourse with her, when they lay down on the ground, he had the knife beside her and indicated that if shecalled somebody he was going to stab her.

If you are not satisfied beyond a reasonable doubt that a weapon was involved, you must find [the accused] not guilty of sexualassault with a weapon but guilty of sexual assault. [22] In explaining the elements of the offence of uttering threats, the trial judge told the jury that: If you have found [the accused] not guilty on Count 1, then you should enter a verdict of not guilty on this count as well.

It is onlyif you have found [the accused] guilty of sexual assault or sexual assault with a weapon that you need to consider this count. [23] Further, the jury was provided with a verdict sheet on which to record its verdicts, which included the option of findingthe accused not guilty of sexual assault with a weapon but guilty of sexual assault and, in her charge regarding the verdict sheet, the trialjudge repeated that it could reach either of those verdicts. [24] There is no indication by defence counsel in either the pre-charge conference or the post-charge conference that he was ofthe view that it would not be open for the jury to convict on sexual assault simpliciter.

That said, it also appears from the post-chargediscussions between the trial judge and both trial counsel that they were all of the view that, if the jury found that the complainant didnot consent to having sexual intercourse, it would also find that the accused had used a knife and uttered the threats.

Whatever theythought, those thoughts were not conveyed to the jury and it is clear that the option of convicting of sexual assault simpliciter anduttering threats was left to the jury with the approval of defence counsel. [25] It was clearly explained to the jury, in a jury charge that is not being challenged, that, if it found that the complainant hadnot consented to the sexual intercourse but it had a reasonable doubt that the accused had used a knife, it could convict of sexual assaultsimpliciter.

The jury having followed these instructions, it cannot be said that the verdict is not one that a properly instructed jury actingjudicially could have reasonably rendered. [26] For these reasons, this ground of appeal is dismissed. IV.

SENTENCE APPEAL [27] This appeal involves the application of sections 719(3) and 719(3.1) of the Criminal Code, which state as follows: 719(3) Determination of sentence – In determining the sentence to be imposed on a person convicted of an offence, a court may takeinto account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to amaximum of one day for each day spent in custody.

(3.1) Exception – Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent incustody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person wasdetained in custody under subsection 524(4) or (8).

Standard of Review [28] The only issue that has been raised regarding the sentence has to do with the determination of the amount of credit to begranted for time served in pre-sentence custody; specifically, whether the trial judge erred in refusing to grant the accused credit for timeserved on the basis of 1.5:1. [29] The standard of review in a sentence appeal is well known. An appellate court should not interfere unless there is anerror in principle, a failure to consider a relevant factor or an overemphasis of the appropriate factors, provided it had an impact on thesentence, or the sentence is unfit.

This is because the determination of the appropriate sentence is an exercise in discretion that is withinthe purview of the sentencing judge. (See R v Shropshire, (SCC), [1995] 4 SCR 227 at paras 46, 48, 52; R v M (CA),

(SCC), [1996] 1 SCR 500; R v LM, 2008 SCC 31 at para 14, [2008] 2 SCR 163; R v Lacasse, 2015 SCC 64 at paras 39,44, [2015] 3 SCR 1089; R v Benson (

M) et al, 2012 MBCA 94 at para 161, 284 ManR (2d) 204; and R v Stonefish (ST), 2012 MBCA116 at paras 26-30, 288 ManR (2d) 103.) [30] The determination of the amount of pre-sentence credit is an aspect of sentencing and, therefore, is subject to the samestandard of review as the determination of a sentence. Thus, provided the sentencing judge has correctly interpreted the law, theapplication of the correct

interpretation of that law to the individual accused and the facts of the case to arrive at the appropriate creditfor pre-sentence custody is also an exercise of discretion that is entitled to considerable deference. (See R v Wust, 2000 SCC 18 at para45, [2000] 1 SCR 455; R v Slack (AO), 2015 ONCA 94 at para 9, 331 OAC 228; and Stonefish at para 30.) The Positions of the Parties [31] In appealing the trial judge’s decision to grant him credit for the time spent in pre-sentence custody on a 1:1 basis, ratherthan on a 1.5:1 basis, the accused takes the position that the trial judge erred in concluding that he was unlikely to receive early parole orrelease, given that there was no evidence that every long-term offender is detained to the warrant expiry date. [32] The Crown’s position is that, although early release will be available to most offenders, it can be denied if it isdetermined that the offender is likely to commit an offence causing serious harm or death, a sexual offence involving a child or a seriousdrug offence.

It argues that the trial judge found that the accused remained a danger to society and that a lengthier period of detentionwas necessary to assist in his rehabilitation and reintegration, and that she set out the factors, taken from the evidence available to her,upon which she came to this conclusion. It states that she made no error in exercising her discretion in this way and that her decision isentitled to deference.

The Law [33] In R v Summers, 2014 SCC 26, [2014] 1 SCR 575, the Supreme Court of Canada recognized that, while for manyoffenders, the loss of eligibility for parole and early release would justify an enhanced credit for the time served in pre-sentence custody,enhanced credit was not a foregone conclusion.

The Court stated that, if it appears that an offender will be denied early release, there isno reason to assign enhanced credit for a meaningless lost opportunity (see para 75). [34] In Slack, one of the issues before the Ontario Court of Appeal was whether the trial judge erred in refusing to grantenhanced credit of 1.5:1 for the time served in pre-sentence custody.

The Court noted that, while an offender who is serving time underthe federal system is entitled to statutory release after serving two-thirds of his or her sentence, that release can be denied in certainspecific circumstances including where the offender is likely to commit an offence causing harm or death (see para 16). Analysis [35] The trial judge concluded that the accused remains a danger to society, suggesting that he would be an unlikely candidatefor parole or early release.

She also found that it would take some time to design and implement a program that would address theaccused’s needs regarding rehabilitation and the enhancement of his prospects for a successful period of long-term supervision. [36] The trial judge’s conclusions are based on the findings in Dr. Holden’s forensic assessment report, wherein he concluded: I have no doubt [the accused] has perpetrated acts of physical and sexual violence over the course of his criminal career. In doing so, inmy opinion, he has inflicted severe physical and psychological harm on his victims.

His behaviour seems repetitive and, up to this point,unrestrained by attempts to militate it via self-control, programming and conditional release restrictions. He seems unable or unwilling tocontrol a chronic and untreated substance abuse issue – which increases his potential to commit acts of violence. . . . I have no doubt [the accused] is a high risk to reoffend both physically and sexually violently in the future if he does not commit himselfto actively participate in high-intensity sex offender treatment and programmes designed to address physical violence.

He needs tourgently address his polysubstance issues. . . . [The accused] is not unintelligent and I do not feel he is completely untreatable at this time. I feel there is a chance of the eventualcontrol of his behaviour in the community if he commits himself to the changes outlined above. [37] The same conclusions are contained in the pre-sentence report, which states that “it is important to note that [theaccused]’s history of participation in treatment programming has been short term (several weeks) and infrequent.

Given his significantdeficits, he is seen to be requiring intensive and long term interventions to adequately address his high level of risk in the community.” [38] In addition to taking into account this report and the finding that the accused was a high risk to reoffend including forsexual violence and violence offences in general, the trial judge considered the accused’s lengthy criminal record that included offencesof violence and for breaching court orders, the fact that this offence was committed while he was on statutory release, and that he hadrefused counselling related to sexual offending.

[ 39 ] It is clear that this accused will require intensive treatment, which will be a long-term undertaking. By the date of sentencing, the accused had spent approximately 39 months in pre-sentence custody. Deducting that from the seven and one-half year sentence (90 months) leaves only 51 months (four years and three months) of time in custody. If the accused were granted credit at 1.5:1, his credit would be 58.5 months, leaving only 31.5 months (two years, seven and one-half months) to be served.

This hardly seems like a sufficient period of time to complete the type of intensive treatment and programming that is envisioned by Dr. Holden and recommended in the pre-sentence report. [ 40 ] Taking all of this into account, we are of the view that the trial judge did not err in refusing to grant the accused credit for time spent in pre-sentence custody on a 1.5:1 basis due to him being an unlikely candidate for parole or early release. Therefore, the decision is entitled to deference. [ 41 ] Leave to appeal the sentence is granted, but the sentence appeal is dismissed. JA JA JA