R v Bear, 2022 MBCA 4

Citation: R v Bear, 2022 MBCA 4 Date: 20220111 Docket: AR20-30-09528 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) A. J. Steigerwald ) for the Appellant Respondent ) ) J. M. Mann and - and - ) J. N.

Myskiw ) for the Respondent DWAYNE JONATHAN BEAR ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) January 11, 2022 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference. On appeal from 2020 MBPC 46 burnett JA (for the Court) : [ 1 ] The accused entered a guilty plea to one count of assault causing bodily harm contrary to

section 267 (

b) of the Criminal Code . [ 2 ] Following his plea, the Crown applied pursuant to

section 753 of the Criminal Code to have the accused designated as a dangerous offender and, if so designated, it sought an indeterminate sentence. [ 3 ] The sentencing judge found that the Crown had established beyond a reasonable doubt the criteria for a dangerous offender designation under section 753(1)(a), and he sentenced the accused to detention for an indeterminate period. [ 4 ] The accused appealed his designation as a dangerous offender and the sentence of indeterminate incarceration.

In his factum, he raised a number of issues, contending that the sentencing judge erred at both the designation and sentencing stages. [ 5 ] At the appeal, the accused abandoned many of the issues raised in his written submissions. The accused’s principal submission is that the sentencing judge erred at the designation stage, when he concluded that his violent conduct is intractable. In particular, it is the accused’s position that the sentencing judge failed to give sufficient weight to the clinical psychologist’s evidence.

The accused says that the sentencing judge did not properly apply the reasonable doubt standard and that he failed to properly assess and weigh the evidence. [ 6 ] The standards of review for the issues raised by the accused are well established (see , for example, R v Boutilier , 2017 SCC 64 at paras 81 , 85; R v Sanderson , 2018 MBCA 63 at para 8 ; and R v Tremblay , 2021 BCCA 26 at para 40 ). [ 7 ] The accused submits that he should be designated a long-term offender and that he should receive a sentence of seven years, less any period already served with enhanced credit, followed by a 10-year long-term supervision order.

[ 8 ] We have carefully considered the accused’s submissions, the record and the sentencing judge’s reasons, as well as the Crown’s response. [ 9 ] In our view, the sentencing judge made no error in principle, his “conclusions were reasonable and supported by the evidence” ( R v Atatise (BF) , 2012 MBCA 117 at para 17 ), and there is no basis for appellate intervention. [ 10 ] Leave to appeal the sentence is granted, but the accused’s appeal is dismissed. JA JA JA