R. v. Assiniboine (C.K.), (2016) 326 Man.R.(2d) 293 (CA)

• Judge: MacInnes, Beard and Pfuetzner, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 27, 2016
• Jurisdiction: Manitoba
• Citations: (2016), 326 Man.R.(2d) 293 (CA);2016 MBCA 44

R. v. Assiniboine (C.K.) (2016), 326 Man.R.(2d) 293 (CA);

      664 W.A.C. 293

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. MY.013

Her Majesty The Queen (respondent) v. Christopher Kenneth Assiniboine (accused/appellant)

(AR15-30-08404; 2016 MBCA 44)

Indexed As: R. v. Assiniboine (C.K.)

Manitoba Court of Appeal

MacInnes, Beard and Pfuetzner, JJ.A.

April 27, 2016.

Summary:

The accused was convicted by a jury of sexual assault and sentenced to 7.5 years' imprisonment, less credit for 39 months' pre-trial custody on a 1.0 to 1.0 basis. The accused appealed his conviction on the ground that the verdict was unreasonable and unsupported by the evidence. He sought leave to appeal sentence, arguing that the trial judge erred in failing to give him 1.5 to 1.0 credit for pre-trial custody.

The Manitoba Court of Appeal dismissed the conviction appeal. The court granted leave to appeal sentence, but dismissed the sentence appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by a publication ban under s. 100 of the Family Law Act and Maritime Law Book's editorial policy.

Criminal Law - Topic 4865

Appeals - Indictable offences - Verdict unreasonable or unsupported by evidence - The 18 year old accused was charged with sexual assault with a weapon for having forced anal and vaginal intercourse with the victim while armed with a knife - A jury acquitted the accused for sexual assault with a weapon, but found him guilty of sexual assault simpliciter - The jury was satisfied that while the evidence did not establish that the accused used a knife, the evidence as a whole established that the accused had nonconsensual sex with the victim - The accused appealed the conviction on the ground that the verdict was unreasonable and unsupported by the evidence - The Manitoba Court of Appeal dismissed the appeal - The court rejected the accused's argument that it was incongruent for the jury to acquit him of sexual assault with a weapon but convict him of sexual assault simpliciter - The test for an unreasonable verdict set a very high standard - A jury's fact and credibility findings were entitled to great deference - The jury was entitled to accept the victim's testimony that the accused had non-consensual sex with her and that he threatened her, but not accept that the accused used a knife - Although there were some inconsistencies in the victim's testimony, there was also independent evidence capable of supporting her testimony (e.g., 911 call while she was allegedly being assaulted) - A verdict of guilty of sexual assault simpliciter was open to the jury on the evidence - See paragraphs 8 to 26.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The 18 year old accused was convicted of sexual assault and sentenced to 7.5 years' imprisonment - The trial judge exercised his discretion to not give the accused enhanced 1.5 to 1.0 credit for 39 months' pretrial custody - He gave credit on a 1.0 to 1.0 basis only - The reason given was that the accused, based on forensic evidence and his criminal record, remained a high risk to reoffend with crimes of violence and sexual violence - The accused was on statutory release when the present offence was committed and refused sexual offence counselling - Giving enhanced credit would not allow sufficient time to undertake the intensive treatment the accused needed - The accused would not be a candidate for early parole - The Manitoba Court of Appeal held that the trial judge did not err in declining to grant enhanced credit - See paragraphs 27 to 40.

Counsel:

P.D. Smith and S.S. Murdoch, for the appellant;

R.D. Lagimodière and C.T. St. Croix, for the respondent.

This appeal and application for leave to appeal sentence was heard on April 27, 2016, before MacInnes, Beard and Pfuetzner, JJ.A., of the Manitoba Court of Appeal.

On April 27, 2016, Beard, J.A., delivered the following judgment for the Court of Appeal.