R. v. B.F.A., (2012) 288 Man.R.(2d) 80 (CA)

• Judge: Monnin, Chartier and MacInnes, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 06, 2012
• Jurisdiction: Manitoba
• Citations: (2012), 288 Man.R.(2d) 80 (CA);2012 MBCA 117

R. v. B.F.A. (2012), 288 Man.R.(2d) 80 (CA);

      564 W.A.C. 80

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. JA.003

Her Majesty The Queen (respondent) v. B.F.A. (accused/appellant)

(AR 11-30-07705; 2012 MBCA 117)

Indexed As: R. v. B.F.A.

Manitoba Court of Appeal

Monnin, Chartier and MacInnes, JJ.A.

December 6, 2012.

Summary:

The accused was convicted of sexual assault, sexual touching, uttering threats (three counts), and assault causing bodily harm. He pled guilty to failing to comply with a recognizance and failing to comply with a probation order (two counts). He had over 50 prior convictions including six for sexual assault, two for sexual assault causing bodily harm, and a number of violence related offences. The Crown applied for an order pursuant to s. 753 of the Criminal Code declaring the accused to be a dangerous offender.

The Manitoba Court of Queen's Bench allowed the application and sentenced the accused to imprisonment for an indeterminate period. The accused appealed against conviction and sentence.

The Manitoba Court of Appeal dismissed the appeals.

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 law, publication ban, Maritime Law Book's editorial policy or otherwise.

For a related case see 264 Man.R.(2d) 101 (Q.B.).

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - The accused was convicted of, inter alia, sexual assault, sexual touching, and uttering threats - He appealed, arguing that the verdict was unreasonable because of errors relating to the trial judge's assessment of the credibility of the accused and of the reliability of the child complainant's evidence - The Manitoba Court of Appeal rejected the argument - While ignoring or failing to consider relevant evidence would be an error in law, rejecting evidence after proper consideration was not - The trial judge did not ignore the evidence that might have raised reliability concerns - He reviewed that evidence at some length and was alive to the accused's concerns, including the number of inconsistencies in the complainant's testimony and how his evidence might have been tainted by his mother's suggestions to him of sexual abuse - The trial judge also explained why he accepted or rejected part of the complainant's evidence - However, he accepted the complainant's evidence as it pertained to the core issues surrounding the offences - See paragraphs 3 to 5.

Criminal Law - Topic 6552

Dangerous or long-term offenders - Detention - Protection of the public - Pattern of repetitive behaviour - The 34 year old aboriginal accused was convicted or pled guilty to several offences including sexual assault, sexual touching, uttering threats and assault causing bodily harm - He had over 50 prior convictions including six for sexual assault, two for sexual assault causing bodily harm, and a number of violence related offences - He allegedly had a difficult childhood including physical and sexual abuse - He had been out of custody for only 2.5 of the 15.5 years since turning 18 - He had never successfully completed a probation order - His history within the correctional system included numerous threats and abusive behaviour to Correctional Services staff and inmates - He suffered from an anti-social personality and chronic alcohol and substance abuse - There was a high risk for future acts of sexual violence - The sentencing judge declared the accused to be a dangerous offender and sentenced him to imprisonment for an indeterminate period - The accused had demonstrated a pattern of repetitive behaviour, including for sexual assaults - He constituted a threat to the life, safety or physical or mental well-being of other persons - He showed a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons of his behaviour - There was a substantial risk of him re-offending - There was no evidence that he could be rehabilitated within a certain time frame and that successful treatment could be accomplished within that time frame aided by a period of community supervision - The Manitoba Court of Appeal dismissed the accused's appeal - The sentencing judge did not ignore an expert's testimony that the accused was not untreatable - The sentencing judge's conclusion that the accused could not be managed with a less restrictive sentence such as a long-term offender order was reasonable and supported by the evidence - See paragraphs 8 to 17.

Criminal Law - Topic 6558

Dangerous or long-term offenders - Detention - Protection of the public - Dangerous sexual offender - [See Criminal Law - Topic 6552 ].

Criminal Law - Topic 6562

Dangerous or long-term offenders - Detention - Protection of the public - Persistent aggressive behaviour - [See Criminal Law - Topic 6552 ].

Criminal Law - Topic 6563

Dangerous or long-term offenders - Detention - Protection of the public - Indifference respecting consequences of behaviour to others - [See Criminal Law - Topic 6552 ].

Cases Noticed:

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 4].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514 (C.A.), refd to. [para. 5].

R. v. J.H.S., [2008] 2 S.C.R. 152; 375 N.R. 67; 265 N.S.R.(2d) 203; 848 A.P.R. 203; 2008 SCC 30, refd to. [para. 6].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 6].

R. v. Currie (R.O.R.), [1997] 2 S.C.R. 260; 211 N.R. 321; 100 O.A.C. 161, refd to. [para. 8].

R. v. Daniels (D.) (2011), 375 Sask.R. 1; 525 W.A.C. 1; 2011 SKCA 67, leave to appeal refused (2012), 434 N.R 392 (S.C.C.), refd to. [para. 8].

R. v. McCallum (N.J.) (2005), 196 O.A.C. 101 (C.A.), refd to. [para. 9].

R. v. Natomagan (A.D.) (2012), 393 Sask.R. 130; 546 W.A.C. 130; 2012 SKCA 46, refd to. [para. 9].

Counsel:

M. Wasyliw, for the appellant;

D.A. Mann and K. Sharma, for the respondent.

These appeals were heard and decided on December 6, 2012, before Monnin, Chartier and MacInnes, JJ.A., of the Manitoba Court of Appeal. The decision of the court was delivered by Chartier, J.A., and written reasons were released on December 17, 2012.