COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Charlie,

2020 BCCA 39

Date: 20200124

Docket: CA44887

Between:

Regina

Respondent

And

James David Junior
Charlie

Appellant

Restriction
on publication:
A publication ban has been imposed under
s. 486.5 of the
Criminal Code
restricting the publication,
broadcasting or transmission in any way of evidence that could identify a victim/witness/undercover
officer.
This publication ban applies indefinitely unless otherwise
ordered.

SEALED
IN PART

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Butler

On appeal from:  An
order of the Supreme Court of British Columbia, dated
October 12, 2017 (
R. v. Charlie
, Prince George
Docket 36893‑13).

Oral Reasons for Judgment

Counsel for the Appellant:

M.P. Klein, Q.C.

R. Thirkell

Counsel for the Respondent:

D.M. Layton, Q.C.

Place and Date of Hearing:

Vancouver, British
  Columbia

January 24, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 24, 2020

Summary:

The appellant was convicted
of first degree murder. In the course of deliberations, the jury asked several
questions. One question concerned the mens rea of party liability for murder.
Held: Appeal allowed. The judge gave an answer that did not describe the mens
rea correctly and omitted reference to knowledge the principal offender
intended to commit the crime. The verdict cannot be saved and a new trial is
required.

[1]

SAUNDERS J.A.
: James David Junior Charlie was convicted by a jury
on October 12, 2017 of one count of first degree murder of Fribjon
Bjornson on or about January 12, 2012, at or near Fort St. James,
British Columbia. On August 31, 2016, two other persons pleaded
guilty to second degree murder of Mr. Bjornson and Mr. Charlie
pleaded guilty to offering indignities to a dead body or human remains, between
January 12, 2012, and February 1, 2012, at or near Fort St.
James.

[2]

The circumstances of Mr. Bjornsons death are brutal. The theory of
the Crown was that Mr. Charlie was one of four people who assaulted Mr. Bjornson
over a prolonged period of time in the basement of a residence, that Mr. Charlie
provided a wire or cord to one of the men who had beaten Mr. Bjornson,
knowing the man would use it to strangle Mr. Bjornson, and that with
others, Mr. Charlie took Mr. Bjornsons dead body to the shore of
nearby Stuart Lake where it was covered with snow for about a week, before he
and another person moved it to a location where the indignities occurred.

[3]

At trial, the question for the jury was whether Mr. Charlie was
guilty of first degree murder or alternatively, second degree murder or
manslaughter. Those questions engaged the law on party liability for murder, a
mens
rea
issue. The judge instructed the jury on the elements of first degree
murder, second degree murder and manslaughter, and on the law of party
liability. The judge did not instruct the jury on the included offence of
attempted murder, nor on the defence of intoxication.

[4]

The judge did not provide the jury or counsel with a copy of his
instructions.

[5]

During their deliberations, the jury asked several questions of the
trial judge. The first question had three parts:

1)

Can we
have a
copy
of the judges statement regarding elements of 1st & 2nd
degree murder and manslaughter?  We would prefer this is writing rather than
the judge explaining it to us.

2)

We are
unclear on the element of forcible confinement.

3)

For 2nd degree
à
the element
of unlawful act w assault with weapon [
sic
]. Is the only consideration
the
cord
?

[6]

In response, the judge provided the jury with a 31 page excerpt of
his charge to the jury, provided an answer on the jurys second part of its
question on forcible confinement, and asked for clarification of the third part
of the question.

[7]

The jury then returned with a second question, restating the third part
of its earlier question that the judge had not understood. That question
focussed on the character of the cord as a weapon used in the assault. The
judge answered that question. That evening, the judge received another question
from the jury. It disclosed part of the jurys deliberations. The judge advised
counsel the next morning that he had received this question the night before,
would seal it, and would ask the jury to rephrase the question in a way that
did not disclose their deliberations. The jury returned this question:

Please
re‑explain
the criteria for first degree
murder, second degree murder, and manslaughter.

Please
re‑explain
forcible confinement for primary and secondary parties
and
what
constitutes a continuous event and two or more separate events.

[8]

The judges response to this request was lengthy. The answer fell into
two portions. First, he addressed the potential that murder and unlawful confinement
could be one, or two, transactions and provided examples. Second, he addressed
the
actus reus
and the
mens rea
for party liability for murder
including:

To be a party to an offence or to  or to an offence you have
to first find that the principal actually committed the offence. Then you have
to find that the party did something and that act actually aided  that is
assisted or abetted  that is encouraged the principal to commit the offence.

You also have to find that the
party intended that his actions would aid  again  assist or abet, encourage,
the principal to do the act. So they have  the  the party has to do something
that actually assists and they have to actually intend to actually insist  to
assist the party, the principal, rather.

[9]

Mr. Charlie appeals from conviction. He says the judge erred in
several ways in answering the jurys questions, in refusing to instruct the
jury on the partial defence of intoxication, and in failing to instruct the
jury on all available verdicts, specifically the included offence of attempted
murder. On the questions, Mr. Charlie contends, in particular, that the
judge erred in answering the jurys last question by giving a faulty
instruction on the
mens rea
of party liability for murder.

[10]

In most appeals the Crown vigorously supports the trial results, but not
always is it able to do so consistent with its most important duty, in the
public interest, to uphold the administration of justice and ensure trial
process is fair. This is one of those cases in which the Crown, acting in its
highest tradition and I am sure after much reflection, does not contest all of
the grounds of appeal raised by the appellant.

[11]

The Crown does dispute all of the grounds of appeal raised except the
one concerning the answer on the
mens rea
of party liability for murder.
On that ground, on the
mens rea
, the Crown concedes that the appeal
should be allowed because the instruction suggests that a person can be
convicted as a party
to murder
provided he or
she intended to assist the principal in doing the act, and does not instruct
the jury that the party must have known that the principal intended to commit
the crime
:
R. v. Briscoe
,
2010 SCC 13 at para. 17
;
R. v. Podolski
,
2018 BCCA 96 at paras. 194195. The Crown further acknowledges
that the verdict cannot be saved under
the curative
proviso of s.
686(1)(b)(iii) of the
Criminal Code
, R.S.C.
1985, c. C‑46.

[12]

We have had the opportunity to review the troubled instruction, and I agree
that the instruction I have quoted contains the error conceded by the Crown.
The error is central to the instruction on the
mens rea
of party
liability for murder. As such, it is not a harmless error. Nor can it be said
that although serious, the evidence is so overwhelming that a reasonable and
properly instructed jury would inevitably have convicted:
R. v. Van
, 2009 SCC 22.

[13]

While this conclusion is a burden to all those interested in pressing
the case to a decisive conclusion, particularly the family and friends of
Mr. Bjornson, and also those called on to take part in the trial, in my
view, the verdict must be set aside and a new trial ordered.

[14]

Accordingly, I would set aside the conviction and order a new trial.

[15]

FITCH J.A.
: I agree.

[16]

BUTLER J.A.
: I agree.

[17]

SAUNDERS J.A.
: The appeal is allowed, the conviction is set aside
and a new trial is ordered.

The
Honourable Madam Justice Saunders


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Charlie,

2020 BCCA 24

Date: 20200124

Dockets: CA45605;
CA45614

Docket: CA45605

Between:

Regina

Respondent

And

Nicholas Des
Charlie

Appellant

-
and -

Docket: CA45614

Between:

Regina

Respondent

And

Abraham Charlie
Percy Louie

Appellant

Restriction on publication:
A publication
ban has been mandatorily imposed
under s. 486.4 of the
Criminal Code
restricting the publication,
broadcasting
or transmission in any way of evidence that could identify a complainant
or witness.
This publication ban applies indefinitely unless otherwise
ordered.

Section 16(4) of the
Sex Offender Information and
Registration Act
:
This section provides that no person shall disclose any information that is
collected pursuant to an order under
SOIRA
or the fact that information
relating to a person is collected under
SOIRA
.

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Goepel

On appeal from:  Orders
of the Supreme Court of British Columbia, dated
November 29, 2017 (conviction) and August 29, 2018 (sentence)
(
R. v. Charlie
, 2017 BCSC 2549 (conviction) and 2018 BCSC 1800
(sentence), Duncan Docket 38273).

Counsel for the Appellant,
Nicholas Des Charlie:

D.J. McKay
R.R. Drury

Counsel for the Appellant,
Abraham Charlie Percy Louie:

B.R. Anderson

Counsel for the Respondent:

J.A.M. Dickie

Place and Date of Hearing:

Vancouver, British Columbia

October 29, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 24, 2020

Written Reasons by:

The Honourable Mr. Justice Willcock

Concurred in by:

The Honourable Madam Justice Newbury
The Honourable Mr. Justice Goepel

Summary:

The appellants were
convicted as parties to an aggravated sexual assault pursuant to ss. 21(1)
and 273(2)(b) of the Criminal Code. The evidence against the appellant Louie
was that he grabbed the complainants arm to restrain her from leaving the room
in which the assault took place. The evidence against the appellant Charlie was
that semen and the complainants blood were found on his shorts. The judge
found, despite some uncertainty as to their respective roles, that the evidence
established the appellants were at the very least parties to the offence. Held:
Louies appeal is allowed; Charlies appeal is dismissed. The verdict against
Louie was unreasonable because there was no evidence to sufficiently connect
his restraint of the complainant to the subsequent sexual assault. With respect
to Charlie, it was open to the judge to conclude he was a party to the assault
based on the presence of the blood and semen on his shorts and it is
discernable from the reasons for judgment that this was the basis for his
conviction.

Reasons for Judgment of the Honourable
Mr. Justice Willcock:

Introduction

[1]

At the conclusion of a trial before a Supreme Court Judge, Nicholas
Charlie (Charlie) and Abraham Louie (Louie) were convicted of aggravated
sexual assault contrary to s. 273(2)(b) of the
Criminal Code
,
R.S.C. 1985, c. C‑46. Reasons for judgment are indexed as 2017 BCSC 2549.
Each accused was sentenced to seven years imprisonment, less appropriate
credit for time in custody before trial. Reasons for sentence are indexed as
2018 BCSC 1800. Each accused appeals his conviction.

[2]

Louie contends the verdict is unreasonable, principally because the
trial judge misapprehended the evidence when she found he intended to
facilitate a sexual assault. He says the evidence could not support that
inference. Further, he contends the trial judge erred in law by failing to
consider whether intoxication precluded him from forming the specific intent
required to convict him as a party to the offence under s. 21(1)(b) or (c)
of the
Code
.

[3]

Charlie contends the verdict is unreasonable because the judge assumed
facts that were not in evidence and drew improper inferences from those assumed
facts. He further contends there was a miscarriage of justice because the judge
erred in her assessment of the credibility of the complainant. Last, he says
the trial judge erred in law by finding him guilty as a party to the offence
without an analysis of the applicable law and without providing sufficient
reasons upon which he could discern the basis for his conviction.

The Evidence

[4]

The complainant testified that on June 25, 2016, after
consuming some alcohol at home in the afternoon and sleeping for a few hours,
she went to meet her sisters (T.J. and C.C.) at a house on Whutstun Road in
Duncan in the evening. She remained at that house until the following morning.

[5]

On arriving she entered a downstairs bedroom and joined T.J., her
cousin, Abraham Louie, Nicholas Charlie and Charlies father. She had
previously dated Louie. She did not know Charlie well but had seen him
previously. Those present in the room were drinking from a 60 ounce bottle
of vodka that was being passed around. The complainant, T.J., her cousin and
Louie sat on a bed, Charlie on a bench, and his father was in a wheelchair.

[6]

The complainant learned that C.C. had passed out upstairs in a bedroom
and she went to briefly check on her. When the complainant returned to the
downstairs room, Charlies father had left. She continued to drink with the
others in the room. T.J. and Louie were holding hands and kissing. Louie tried
to apologize to the complainant for cheating on her when they had dated, but
the complainant did not want to speak about that and felt uncomfortable.

[7]

The complainant became intoxicated after considerable drinking. Her
account of the events that followed consisted of discrete memories interrupted
by periods of blackouts during which she was unable to recall what occurred.

[8]

She has a discrete memory of T.J. asking if she could use her phone. She
remembers T.J. then making a call but does not remember the call ending.

[9]

The next thing she remembers is trying to leave the room. However,
Louie, still sitting on the bed, grabbed her bicep and restrained her. She
initially testified that she could not recall if T.J. or her cousin were still
present in the room at this time, but later testified she did not think anyone
other than Louie and Charlie remained when she was restrained from leaving. She
admitted some uncertainty on this point in cross‑examination.

[10]

She does not remember either accused saying anything when Louie grabbed
her arm. She testified: I tried to pull my arm away and I remember saying no
and then I blacked out. In her first account of events at trial, she testified
her next memory was taking a step or two outside the bedroom and collapsing on
the floor in the hallway.

[11]

When examined in chief, the complainant initially said nothing about the
assault that resulted in her injuries. After being referred by Crown counsel to
a statement given to the police, at a break in her testimony, she gave the
following evidence:

Q.         having reviewed your statement do you
recall, or are you able to tell us, when [Louie] grabbed your bicep what you
remember happening next, your next memory?

A.         I remember feeling penetration in my vagina.

Q.        And was that during the time that you were in
the room, or was it when you were outside of the room?

A.         It was in the room.

Q.        And in terms of the timeline, just so were
all clear, when you say it was in the room, was that when you came to and got
up and walked out of the room, or was it at some other point?

A.         I hadnt left the
room because Abraham [Louie] had grabbed me.

[12]

In cross‑examination, she adopted as true a prior statement in
which she described being restrained as follows: Nick [Charlie] must have been
sitting on the bench but all I remember I was trying to say no. I was like
dont. And like I said I blacked out after that. I cant remember anything
else.

[13]

C.C. found the complainant lying on the hallway floor in the morning.
The complainant was wearing no bottoms and there was blood on the floor. She
was bleeding from her vagina and in great pain. Her sister helped her to walk
up the stairs. The complainant phoned her partner and asked to be taken to the
hospital. She then blacked out again. She has a memory of trying to use the
washroom but couldnt because it hurt. She next remembers being in the
emergency room in the hospital.

[14]

Examination at the hospital revealed the complainant had suffered
significant injuries to her vagina, anal and rectal areas. She had bruises on
her face, head, arms and legs. There was a bruise on her bicep where she
believes she was grabbed by Louie.

[15]

Constable Walsh and Corporal Gelderblom of the RCMP arrived at
the house on Whutstun Road at about 7:30 am on June 26. According to
C.C., that was about 30 minutes after she found the complainant sitting on
the hallway floor. On entering the downstairs hallway Constable Walsh observed
blood on the floor and a blood‑stained roll of toilet paper and a blood‑soaked
sponge. She spoke with C.C. and the complainant in an upstairs bedroom. Both
appeared to be quite intoxicated. The complainant told her Abraham raped me
and mentioned the name Nick repeatedly. C.C. told Constable Walsh that Abraham
Louie and Nicholas Charlie were in the downstairs bedroom. The officers entered
the room and located two men there, asleep on a bare mattress. Constable Walsh
advised them they were under arrest for assault and sex assault. Charlie was
wearing only shorts; they appeared to be blood‑stained. Louie was wearing
sweatpants and a long‑sleeved shirt. There was a strong smell of alcohol
in the room but Charlie did not appear to Constable Walsh to be
intoxicated. No noticeable bloodstains, other than those on Charlies shorts,
were seen by the officers who entered the bedroom in which the appellants were
arrested.

[16]

A DNA analysis was performed on what appeared to be a large bloodstain
on the front of Charlies shorts and underwear. DNA was identified in two areas
tested on samples of fabric removed from Charlies shorts. DNA found on the
fabric from the upper front left of the shorts was from a strong sample,
probably blood, and it produced a profile matching the complainants. DNA found
on the sample from the upper front right of the shorts was of mixed origin. It
produced two profiles: one, probably blood, matching the complainant and the
other, semen, matching an unidentified male. No male DNA was identified on
vaginal and rectal swabs performed on the complainant.

[17]

Constable Ramsey of the RCMP attended at the house on Whutstun
Road on June 29 with a search warrant. He inspected the home and took
photographs of what he considered to be significant evidence at the scene.
These included photographs which showed spots on the floor of the downstairs
bedroom in question that appeared to him to be blood. There also appeared to be
a small red stain on the headboard of a bed in that room and a similar stain,
appearing to be blood, on a light switch.

[18]

Louie testified in his own defence. It was his evidence that he began
drinking at about four or five oclock in the afternoon before the events
in question with a group of four or five people in an upstairs bedroom at the
Whutstun Road house. He believed he had a 40 ounce bottle of vodka. There
were also 24 cans of a 5% alcohol drink and another 26 ounce
bottle of hard liquor shared by the group. In addition to consuming alcohol Mr. Louie
smoked some marijuana. It was Louies evidence that after most of the alcohol
had been consumed in the upstairs bedroom he went to a downstairs bedroom to
pass out. Charlie had said he could sleep on his bed.

[19]

Louie did not remember sitting on a mattress and talking with T.J. in
the downstairs bedroom. He did not recall apologizing to the complainant for
his past behaviour, nor did he recall the complainant being in the downstairs
bedroom while he was there. The following exchange occurred during his cross‑examination:

Q.        Nick Charlie was in the room with you, Junior,
downstairs?

A.         I believe so.

Q.        Youre not certain?

A.         No, because I was going to bed.

Q.        And you were drunk, right?

A.         Yes.

Q.        You were actually really like hammered from
drinking all that alcohol, isnt that true?

A.         You can say that.

Q.        Well I am saying that. Im saying that to you,
sir. You were very drunk, isnt that true?

A.         Yes.

Q.        And do you recall who was in the room when you
went into the bedroom, to go to sleep that is? You actually have a memory of
that?

A.         No, I dont.

Q.        So its fair to say, sir, that you blacked out
at some point throughout the evening?

A.         Yes.

Q.        So you cant say whether or not once you got
in there, because you blacked out, whether or not you continued drinking, is
that fair to say?

A.         I know I didnt. I cant drink that much.
Like every time I drink I puke up blood. Like I honestly cant drink that much.
And I drink over my limit, yes, I have.

Q.        And so you cant say if [the complainant] was
in that bedroom, isnt that true?

A.         Yeah, I guess so.
I cannot say.

[20]

There was no evidence with respect to the concentration of alcohol in
Louies blood or urine at the relevant time. The only expert evidence with
respect to alcohol intoxication was the report of an expert in toxicology filed
in relation to the blood-alcohol analysis performed on a sample taken from
the
complainant
on her admission to hospital. That indicated that there was a
concentration of 224 mg% ethyl alcohol in the complainants blood and 270 mg%
ethyl alcohol in her urine. The expert provided the following opinion:

This BAC [blood alcohol
concentration] range is generally associated with severe intoxication.
Cognitive effects include: loss of restraint, decreased attention and
concentration, decreased judgement, emotional instability (i.e. exaggerated emotions,
labile emotions) and impairment of memory. At the high end of the range there
may be mental confusion and disorientation. Physical effects include slurred
speech, poor balance (e.g. swaying while standing, staggering while walking
with reeling and lurching when called upon to make sudden turns or to carry out
unexpected movements and possibly inability to stand or walk), gross muscular
incoordination, possible vomiting and incontinence. At the higher end of the
range there may be impaired consciousness, stupor and unconsciousness may
occur.

Judgment

[21]

When reviewing the evidence the trial judge, significantly in my view,
described one aspect of the complainants evidence as follows:

[42]      After refreshing her
memory from a statement she gave police the day following the incident, [the
complainant] testified that after Mr. Louie grabbed her arm, she felt her
vagina being penetrated. Then she blacked out again.

[22]

The judge appears to have understood it to be the complainants evidence
that she had a continuous memory from the point she was grabbed on the arm
until her vagina was penetrated, blacking out thereafter.

[23]

The judge made the following findings of fact, at para. 84:

(1)

N.J. [the
complainant] was sexually assaulted;

(2)

The
assault occurred in Mr. Charlies bedroom;

(3)

The
attack was violent;

(4)

She suffered bruises to her face, head, arms, torso and legs. Her
vagina and anus were penetrated forcefully; with what is unknown;

(5)

She bled
heavily from her vaginal area;

(6)

Mr. Louie
and Mr. Charlie were in the bedroom before the assault;

(7)

Mr. Louie
and Mr. Charlie were in the bedroom after the assault;

(8)

Mr. Charlie was wearing shorts and underwear that were covered in
the front with N.J.s blood and his semen; and

(9         Both of the
accused had been drinking that night. Mr. Louie testified that he was
drinking heavily.

[24]

The evidence against Charlie was summarized as follows, at para. 86:

(1)

He was in his bedroom with Mr. Louie when Mr. Louie grabbed N.J.s
arm to prevent her from leaving;

(2)

N.J.s
vagina was then penetrated;

(3)

She was
violently sexually assaulted in his bedroom;

(4)

She lost
a lot of blood;

(5)

He was in
his bedroom after the assault; and

(6)

He was wearing shorts and underwear that were saturated with N.J.s
blood and his semen.

[25]

The judge found, considering all the evidence, at para. 87: [The]
only rational conclusion is that Mr. Charlie was, at the very least, a
party to the sexual assault of N.J.

[26]

The judge concluded Louie was not a credible witness, in part, as she
noted at para. 90, because he was very drunk and blacked out during the
course of the evening. She rejected his evidence where it conflicted with the
complainants.

[27]

The evidence against Louie was summarized as follows, at para. 95:

(1)

He was in
the bedroom before the assault;

(2)

He was in
the bedroom after the assault;

(3)

He was sleeping beside Mr. Charlie, who had N.J.s blood all over
the front of his shorts;

(4)

The
assault took place in that bedroom. It was violent;

(5)

Mr. Louie
grabbed N.J.s arm when she tried to leave; and

(6)

By grabbing N.J.s arm, Mr. Louie prevented N.J. from leaving the
bedroom. After that, she was sexually assaulted.

[28]

The judge, at para. 96, found Louies purpose in grabbing the
complainant was to facilitate the sexual assault: He kept her in that room so
she could be sexually assaulted.

[29]

She concluded, at paras. 9798:

[97]      How she was assaulted is unknown. What each man did
is unknown. What they assaulted N.J. with is unknown. What is known is that N.J.
entered that room with no injuries and she left the room bruised, battered and
seriously injured.

[98]      While I am uncertain as
to whether Mr. Charlie or Mr. Louie personally sexually assaulted N.J.
or whether they aided and abetted the sexual assault, having considered all of
the evidence and all the circumstances, I am satisfied beyond a reasonable
doubt that both the accused were parties to this attack on N.J. pursuant to
section 21(1) of the
Criminal Code
.

[30]

There was no express consideration in the reasons for judgment of the
party liability provisions of s. 21(1) of the
Code
nor of the
extent to which, if at all, either accused had the specific intent necessary to
be convicted under the aiding and abetting provisions.

Grounds of Appeal:

Louie

[31]

The appellant Louie contends the trial judge misapprehended the evidence
with respect to the proximity of his restraint of the complainant to the sexual
assault. He says that misapprehension was central to his conviction and
resulted in a miscarriage of justice.

[32]

He contends the verdict was unreasonable because the trial judge drew an
inference unsupported by the evidence: that his purpose in grabbing the
complainants arm was to facilitate a sexual assault.

[33]

He further contends the trial judge erred in law by failing to consider
the defence of voluntary intoxication.

Charlie

[34]

The appellant Charlie contends the verdict was unreasonable because the
trial judge failed to consider the whole of the evidence regarding the
complainants credibility. Further, he says, the verdict was founded upon
assumed facts that were not in evidence and upon improper inferences from those
assumed facts, particularly the inference that the complainant bled onto
Charlies clothing while she was being sexually assaulted and the inference
that it was Charlies own semen on his pants.

[35]

He contends the judge erred in law by finding him guilty under s. 21(1)
of the
Code
without any analysis of the law of party liability and
without any substantial argument in relation to the application of that
section.

[36]

An argument advanced in his factum, that the trial judge erred in law by
dismissing an application for the exclusion of evidence, was not advanced at
the hearing of the appeal.

Applicable Law

Powers of the Court of
Appeal

[37]

Section 686(1) of the
Code
provides, in part:

686

(1)
On the hearing of an appeal against a
conviction  the court of appeal

(a)
may allow the appeal where it is of the opinion that

(i)
the verdict should be set aside on the ground that it is
unreasonable or cannot be supported by the evidence,

(ii)
the judgment of the trial court should be set aside on the ground
of a wrong decision on a question of law, or

(iii)
on any ground there was a miscarriage of justice;

(b)
may dismiss the appeal where

(iii)
notwithstanding
that the court is of the opinion that on any ground mentioned in subparagraph
(a)(ii) the appeal might be decided in favour of the appellant, it is of the
opinion that no substantial wrong or miscarriage of justice has occurred

Unreasonable Verdict or
Miscarriage of Justice

[38]

The appellants contend the trial judge erred in the assessment of the
evidence: in part, by misapprehending the evidence; in part, by drawing
unwarranted inferences; and, in part, by erroneously assessing the reliability
of the complainants evidence. Some errors are said to undermine the verdict
such as to render it unreasonable; others are said to give rise to a
miscarriage of justice.

[39]

A challenge to the verdict as unreasonable pursuant to s. 686(1)(a)(i)
on the ground that it is founded upon a conclusion unsupported by the evidence
should be addressed by applying the test described in
R. v. Yebes
,
[1987] 2 S.C.R. 168 and
R. v. Biniaris
, 2000 SCC 15.
Where an error, either in
failing to consider evidence relevant
to a material issue or failing to give proper effect to evidence,

is established, the appellate court must measure the verdict
against the totality of the evidence adduced at trial
, and
determine whether the verdict is one that a properly instructed jury or a judge
could reasonably have rendered
.

[40]

Deschamps J. for the majority in
R. v.
R.P
., 2012 SCC 22, described the appellate courts role, when
faced with such an argument, as follows:

[9]

To decide
whether a verdict is unreasonable, an appellate court must, as this Court
held in
R. v. Yebes
,
[1987] 2 S.C.R. 168
,
and
R. v. Biniaris
,
2000 SCC 15
,
[2000] 1 S.C.R. 381
, at para. 36
, determine whether the verdict is
one that a properly instructed jury or a judge could reasonably have rendered. The
appellate court may also find a verdict unreasonable if the trial judge has
drawn an inference or made a finding of fact essential to the verdict that (1) is
plainly contradicted by the evidence relied on by the trial judge in support of
that inference or finding, or (2) is shown to be incompatible with
evidence that has not otherwise been contradicted or rejected by the trial
judge (
R. v. Sinclair
, 2011 SCC 40;

[2011] 3 S.C.R. 3
, at paras. 4
, 16 and 19‑21;
R. v. Beaudry
,
2007 SCC 5
,
[2007] 1 S.C.R. 190
).

[41]

Fish J., dissenting, but not on this point,
observed:

[24]

It is well established that reviewing courts, in
concluding that a verdict is unreasonable, must articulate as precisely as
possible what features of the case support that conclusion.

[25]      To this
end, a reviewing court must re-examine the entire evidentiary record at trial,
consider the effect of its salient elements, and
specifically identify
aspects of the evidence ― or lack of evidence ― that are of
particular concern (
R.

v. Biniaris
,
2000 SCC 15
,
[2000] 1 S.C.R. 381
, at paras. 41-42
;
R. v.
Yebes
,
[
1987] 2 S.C.R. 168
, at p. 186)
.
As McLachlin J. (as she then was)
stated in
R. v. W.
(R.)
,
[1992] 2 S.C.R. 122
, at p. 131,
[i]t is thus clear that a court
of appeal, in determining whether the trier of fact could reasonably have
reached the conclusion that the accused is guilty beyond a reasonable doubt,
must re-examine, and to some extent at least, reweigh and consider the effect
of the evidence.

[42]

Both appellants point to what they say are inadequacies in the trial
judges assessment of the credibility of the complainant. With respect to
challenging the reasonableness of a verdict on this ground,

Deschamps J.
observed in
R. v. R.P.
:

[10]

Whereas the
question whether a verdict is reasonable is one of law, whether a witness is
credible is a question of fact. A court of appeal that reviews a trial courts
assessments of credibility in order to determine, for example, whether the
verdict is reasonable cannot interfere with those assessments unless it is
established that they cannot be supported on any reasonable view of the
evidence (
R. v. Burke
,
[
1996] 1 S.C.R. 474
, at para. 7
).

[43]

Smith J.A. addressed such submissions in
R. v. Ceal
, 2012 BCCA 19
as follows:

[
25
]

In determining whether a verdict is unreasonable or cannot be supported
by the evidence, the focus of the inquiry is on whether there is
any
evidence to support the trial judges findings based on the totality of the
evidence before him or her, and whether the verdict logically flows from those
findings. An appellate court will not interfere with a trial judges assessment
of credibility absent palpable and overriding error in the findings that
support his or her assessment. As was noted in
R. v. Gagnon,
2006 SCC 17,
[2006] 1 S.C.R. 621:

[20]      Assessing
credibility is not a science. It is very difficult for a trial judge to
articulate with precision the complex intermingling of impressions that emerge
after watching and listening to witnesses and attempting to reconcile the
various versions of events. That is why this court decided, most recently, in
H.L.,
that in the absence of a palpable and overriding error by the trial judge,
his or her perceptions should be respected.

[
26
]

This approach to appellate review under s. 686(1)(a)(i) was
succinctly summarized by Mr. Justice Doherty in
Howe
at para. 47,
cited with approval by this Court in
R. v. Turner,
2010 BCCA 76
at para. 25:

[47]      Some
arguments on appeal, ostensibly directed at the trial judges reasoning
process, are in reality thinly veiled invitations to the Court of Appeal to
substitute its own credibility assessments for those made at trial. Where the
essence of the argument advanced on appeal comes down to an assertion that the trial
judge was wrong in accepting the evidence of the complainant and rejecting the
evidence of the accused, this submission should be treated for what it is, an
assertion that the verdict is unreasonable. The success of that assertion
turns, ultimately, not on the reasoning process of the trial judge, although
that process is relevant, but on whether the verdict can withstand the limited
review contemplated by s. 686(1)(a)(i) of the
Criminal Code
:
R.
v. Biniaris
(2000), 143 C.C.C. (3d) 1 (S.C.C.) at 20‑24.

[
27
]

Thus, absent palpable and overriding error in the findings that support
a trial judges assessment of a witnesss credibility, appellate deference must
be given to that assessment.

[44]

As noted in
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.),
and
R. v. Lohrer
, 2004 SCC 80, an erroneous
appreciation of the evidence may result in a miscarriage of justice, and
warrant an order for a retrial, even if there is some evidence upon which a properly
instructed jury or a judge could reasonably have rendered a guilty verdict. In
Morrissey
,
Doherty J.A., for the court observed:

Where a trial judge
is mistaken as to the substance of material parts of the evidence and those
errors play an essential part in the reasoning process resulting in a
conviction, then, in my view, the accuseds conviction is not based exclusively
on the evidence and is not a true verdict. If an appellant can demonstrate
that the conviction depends on a misapprehension of the evidence then, in my
view, it must follow that the appellant has not received a fair trial, and was
the victim of a miscarriage of justice. This is so even if the evidence, as
actually adduced at trial, was capable of supporting a conviction.

[45]

In
Lohrer
, Binnie J. began his judgment by
citing that passage from the judgment in
Morrissey
and wrote, at para. 1:

[1]         We
agree with these observations. Where a miscarriage of justice within the
meaning of s. 686(1)(
a
)(iii) of the
Criminal Code
, R.S.C.
1985, c. C‑46, has been demonstrated an accused appellant is not
bound to show in addition that the verdict cannot be supported by the
evidence within the meaning of s. 686(1)(
a
)(i).

[46]

In
R. v. Sinclair
, 2011 SCC 40 at para. 9,
Fish J. held the Manitoba Court of Appeal had correctly identified a
Lohrer
error: the trial judges reasons were generally cogent and consistent with the
evidence but the trial judge had mistaken for
evidence
the Crowns
theory
and drawn an inference based in part on non‑existent testimony. Because
there may nonetheless have been evidence capable of supporting a conviction, a
new trial, appropriately in the opinion of Fish J., was ordered.

[47]

In
R. v. Swales,
2014 BCCA 350, Stromberg‑Stein J.A.,
for this Court wrote:

[
47
]

A misapprehension of evidence may undermine the validity of the verdict
and give rise to a miscarriage of justice under s. 686(1)(a)(iii) of the
Criminal
Code
.

[
48
]

The threshold to be met in demonstrating a misapprehension of evidence
warranting appellate intervention is stringent. The misapprehension must be a
question of substance; must be material to the trial judges reasoning
process; and must play an essential role, not just in the narrative of the
judgment, but in the reasoning process resulting in conviction:
R. v. Lohrer
..
.
All three elements of the test must be satisfied to establish a
material misapprehension of evidence. The trial judge must be shown to have
erred by actually misapprehending the evidence. As LeBel J. explained in
R. v.
Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3
at para. 53
, [t]he plain language or the
thrust of the reasons must disclose an actual mistake.

[
49
It
is not enough for the appellant to merely suggest a different interpretation of
the evidence, or merely point to some evidence which arguably weighs against
the trial judges finding. Mere differences in interpretation on factual
matters are not misapprehensions but simple disagreement with the judges
differing view of the evidence.

[48]

In
R. v. J.F.D.
, 2017 BCCA 162, Dickson J.A.
surveyed the jurisprudence in relation to the review of credibility findings on
appeal and the circumstances in which an error affecting the assessment of a
witnesss credibility may result in a miscarriage of justice:

[39]
Where a cases turns primarily on
credibility assessments, the sufficiency of the judges reasons should be
considered in light of the deference afforded on findings of credibility:
R.
v. Dinardo
,
2008 SCC 24
at para. 26
. The judge must explain
why
the result was reached such that the foundations of the decision can be
understood when considered in the context of the evidence, the argument and the
trial:
R. v. Vuradin
,
2013 SCC 38
at para. 12
, citing
R.E.M.
at paras. 16‒17.
Provided this standard is met, the judge need not advert to all of the
evidence, answer every argument made, or set out every finding or conclusion
reached in the process of arriving at a verdict:
Dinardo
at para. 30;
R.E.M.
at para. 18. Given the high degree of deference accorded to
credibility assessments, deficiencies in a trial judges credibility analysis
will rarely merit appellate intervention:
Vuradin
at para. 11;
Dinardo
at para. 26.

[
40
]

However, where a judge misapprehends material evidence that forms an
essential part of the reasoning process leading to conviction, appellate
deference is not warranted. A misapprehension of material evidence, which may
include a failure to consider material evidence, constitutes a palpable and
overriding error leading to an unfair trial and, thus, to a miscarriage of
justice:
R. v. Lohrer
,
2004 SCC 80
at para. 1
, citing
R. v. Morrissey

(1995),
97 C.C.C. (3d) 193
at 221 (Ont. C.A.)
;
Jacobs
at paras. 52,
53

Question of Law

[49]

The appellants contend the trial judge found them
to be parties to a sexual assault without considering the s. 21
jurisprudence. They say: there was an inadequate description of the basis for
the conclusion they were parties to the offence; there was inadequate (or no)
consideration of the requisite
mens rea
; and, finally, Louie says there
was no consideration of a viable defence of intoxication.

[50]

Section 21(1) of the
Code
provides:

21

(1)
Every one is a party to an offence who

(a)
actually
commits it;

(b)
does or
omits to do anything for the purpose of aiding any person to commit it; or

(c)
abets any person in committing it.

[51]

This provision has the effect of treating those who
actually commit the offence as indistinguishable from those who aid or abet
another in the commission of the offence; all three avenues in s. 21(1)
lead to the same consequences:
R. v. Briscoe
, 2010 SCC 13 at para. 13;
R. v. Elder
, 2015 ABCA 126 at para. 15. However, the
actus
reus
and
mens rea
for aiding and abetting are distinct from those
required in the actual commission of the offence:
R. v. Mercer
,
2005 BCCA 144.

[52]

An accused actually commits a sexual assault
where it is established beyond a reasonable doubt that their conduct satisfies
the
actus reus
and
mens rea
requirements for the offence as set
out in
R. v. Ewanchuck
, [1999] 1 S.C.R. 330 at paras. 2425
and para. 41:

[24]      The crime of sexual assault is only indirectly
defined in the
Criminal
Code
, R.S.C. 1985, c. C-46.
The offence is comprised of an
assault within any one of the definitions in s. 265(1) of the
Code
, which is
committed in circumstances of a sexual nature
, such that the sexual
integrity of the victim is violated: see
R. v. S. (P.L.)
, [1991] 1 S.C.R. 909.
Section 265 provides that:

265
. (1) A person commits an
assault when

(
a
) without the consent of another
person, he applies force intentionally to that other person, directly or
indirectly;

(
b
) he attempts or threatens, by an
act or a gesture, to apply force to another person, if he has, or causes that
other person to believe on reasonable grounds that he has, present ability to
effect his purpose; or

(
c
) while openly wearing or
carrying a weapon or an imitation thereof, he accosts or impedes another person
or begs.

(2) This section applies to all
forms of assault, including sexual assault, sexual assault with a weapon,
threats to a third party or causing bodily harm and aggravated sexual assault.

[25]      The
actus reus
of sexual assault is established by the
proof of three elements: (i) touching, (ii) the sexual nature of the contact,
and (iii) the absence of consent. The first two of these elements are
objective. It is sufficient for the Crown to prove that the accused's actions
were voluntary. The sexual nature of the assault is determined objectively; the
Crown need not prove that the accused had any
mens rea
with respect to the
sexual nature of his or her behaviour: see
R. v. Litchfield
, [1993] 4 S.C.R. 333,
and
R. v. Chase
,
[1987] 2 S.C.R. 293.

[41]
Sexual assault is a crime of general intent.
Therefore, the Crown need only prove that the accused intended to touch the
complainant in order to satisfy the basic
mens rea
requirement
. See
R. c. Daviault
,
[1994] 3 S.C.R. 63.

[Emphasis added].

[53]

More than one person may actually commit an offence
for the purposes of s. 21(1)(a) even though each has not performed every
act which makes up the
actus reus
of the offence:
R. v. Ball
,
2011 BCCA 11

at para. 23. The case law refers to such
actors variously as co‑principals, joint‑principals, co‑perpetrators
or joint‑perpetrators:
Ball
at para. 23. In the context of
assault, a crime of general intent, there is no need for co‑principals to
share a common purpose to satisfy the requisite
mens rea
.

[54]

In
R. v. Magoon
, 2016 ABCA 412,
Paperny J.A. observed:

[85]

The real test under [s. 21(1)(a)] is whether each principal directly
participates in the offence.
This can be made out by showing that each
principal had direct physical contact with the victim. Where this is the case,
the extent of participation does not need to be precisely determined
. It is
not necessary to prove who struck the final or fatal blow; the blow of one is
the blow of all:
Elder
;
Ball
at paras 28 and 30;
R v Pickton
,
2010 SCC 32
at paras 64-66,
[2010] 2 SCR 198.

[Emphasis added].

[55]

The
actus reus
and
mens rea
for aiding or abetting were
described by the Supreme Court of Canada in
Briscoe
. With respect to the
actus reus
, Charron J., for the Court, found:

[14]      The
actus
reus
of aiding or abetting is doing (or, in some circumstances, omitting to
do) something that assists or encourages the perpetrator to commit the offence.
While it is common to speak of aiding and abetting together, the two concepts
are distinct, and liability can flow from either one. Broadly speaking, [t]o
aid under s. 21(1)(
b
) means to assist or help the actor.
. . . To abet within the meaning of s. 21(1)(
c
) includes encouraging,
instigating, promoting or procuring the crime to be committed:
R. v. Greyeyes
,

[1997] 2 S.C.R. 825
, at para. 26.

[56]

With respect to the requisite
mens rea,
the Charron J.
noted:

[15]      Of course, doing or omitting to do something that
resulted in assisting another in committing a crime is not sufficient to
attract criminal liability.  one does not render himself liable by renting or
loaning a car for some legitimate business or recreational activity merely
because the person to whom it is loaned or rented chooses in the course of his
used to transport some stolen goods, or by renting a house for residential
purposes to a tenant who surreptitiously use it to store drugs.
The
aider or abettor must also have the requisite mental state or
mens rea
. Specifically,
in the words of s. 21(1)(
b
), the person must have rendered the
assistance
for the purpose
of aiding the principal offender to commit
the crime.

[16]       The
mens rea
requirement reflected in the
word purpose under section 21(1)(
b
) has two components: intent and
knowledge. For the intent component it was settled in
R. v Hibbert
that
purpose in section 21(1)(
b
) should be understood as essentially
synonymous with intention. The Crown must prove that the accused intended to
assist the principal in the commission of the offence. The Court emphasized
that purpose should not be interpreted as incorporating the notion of
desire into the fault requirement for party liability. It is therefore not
required that the accused desired that the offence be successfully committed

[17]      As for knowledge, in
order to have the intention to assist in the commission of a defence, the aider
must know that the perpetrator intends to commit the crime, although he or she
need not know precisely how it will be committed. That sufficient knowledge is
a prerequisite for intention is simply a matter of common sense.

[57]

General intent may ground the conviction of one who actually commits an
assault, but the conviction of one who aids or abets the commission of an assault
hinges upon evidence of specific intent to assist:
R .v. Fraser
(1984),
13 C.C.C. (3d) 292 (B.C.C.A.);
R. v. Hunt
,

[1993] B.C.J. No. 491
(C.A.) at para. 15.

[58]

This distinction has significant implications for the defence of
intoxication in the context of party liability. It is well‑established
that self‑induced intoxication is not a defence to a crime of general
intent, and is therefore not available to an accused charged with actually
committing an assault:
R. v. Leary
, [1978] 1 S.C.R. 29;
Fraser
at para. 6. The defence is, however, available to those charged with
aiding or abetting such an offence:
Fraser
;
R. v. Chapin
(1978), 41 C.C.C. (2d) 300 (Alta. S.C.A.D.);
R. v.
Cosgrove
(1975), 29 C.C.C. (2d) 169 (Ont. C.A.);
R. v. Waterfield
(1974), 18 C.C.C. (2d) 140 (Ont. C.A.).

[59]

In
R. v. Wobbes
, 2008 ONCA 567, the Ontario Court of
Appeal specifically considered the circumstances in which the defence of
intoxication should be considered in relation to the offence of being a party
to a sexual assault. Writing for the court Epstein J.A. observed:

[29]      The authorities make it clear that it is not
sufficient that the accuseds actions had the effect of aiding the commission
of the offence. The appellant must have acted for that specific purpose  As
well, mere awareness of and presence at the scene of an offence does not
establish the requisite intent

[30]      The authorities also clearly establish that the
defence of self-induced intoxication is available to an accused who is charged
with aiding or abetting an offence. Specifically, an intoxicated individual may
not have the specific intent necessary to aid or abet anothers offence,
despite the fact that his or her actions have that effect. Accordingly the
defence of intoxication becomes relevant to the party offence provisions once
the evidence establishes an air of reality to that defence

[31]      In determining whether a defence has an air of
reality, the trial judge must ask whether there is evidence upon which a
properly instructed jury acting reasonably could acquit the accused of the
charged offence if it believed the evidence to be true. In considering whether
there is any such evidence, the judge must consider the totality of the
evidence; assume the evidence relied on by the accused to be true; and must not
make determinations about the credibility of witnesses, weigh the evidence,
make findings of fact, or draw factual inferences

[32]      For the intoxication
defence to have an air of reality there must be some evidence to support the
conclusion that the appellant was in a state of advanced intoxication. This
state of intoxication occurs where an individual lacks specific intent  i.e.
intoxication that results in impairment sufficient to raise a reasonable doubt
that the accused did not foresee the consequences of his or her acts.

[60]

In
R. v. Daley
, 2007 SCC 53 at para. 44, the
Supreme Court of Canada endorsed the description of the threshold for
instructing juries on intoxication set out in
R. v. Robinson
, [1996] 1 S.C.R. 683:
[B]efore a trial judge is required by law to charge the jury on intoxication,
he or she must be satisfied that the effect of the intoxication was such that
its effect might have impaired the accuseds foresight of consequences
sufficiently to raise a reasonable doubt.

Analysis: Louies Appeal

Unreasonable Verdict

[61]

The judge found Louie kept the complainant in the downstairs bedroom so
she could be sexually assaulted. That inference followed from her description
of the sequence of events. As I have noted above, the trial judge described the
complainants evidence as follows: after Mr. Louie grabbed her arm, she
felt her vagina being penetrated. Then she blacked out again.

[62]

In her evidence in chief, and on a number of occasions put to her in
cross‑examination, the complainant said she blacked out after Louie
grabbed her arm. The only evidence with respect to when the sexual assault
occurred was the complainants evidence that feeling penetration of her vagina
was

the next thing she remembered

or

her next
memory
after Louie grabbed her. The statement put to her in cross‑examination
suggests she blacked out after she was restrained and later had a distinct
memory of penetration, as does the complainants response to Crown counsels
attempt to determine when the complainant felt penetration, cited at para. 11
above.

[63]

In my opinion, the judge erred in describing the sequence of events to
which the complainant testified. The complainant did not say she was conscious
between the time she was restrained and the time she felt penetration.

[64]

As I have noted at paras. 710 above, the complainants memories
were episodic. Through her testimony, she was asked to describe her next
memory after each occasion when she blacked out. There is no evidence of how
much time passed between these discrete memories. It is clear, however, that
some significant time and significant events occurred between certain of the
complainants episodic memories. For example, her sister T.J. and her cousin
left the downstairs bedroom at some point after using the complainants cellphone
and, presumably, before the assault. T.J. may still have been in the downstairs
bedroom when Louie grabbed the complainant to restrain her but logic tells us T.J.
was not there during the assault. Hours passed between the time Louie
restrained the complainant and the time she was awakened in the hallway by her
sister at 7:00 AM.

[65]

The judges inference that Louie grabbed the complainants arm so that
she could be sexually assaulted could only be drawn if the assault was facilitated
by Louie restraining her. Otherwise, other plausible inferences, consistent
with innocence, could have been drawn. In my view there is no basis in the
evidence to support the inference the sexual assault followed immediately on
the heels of Louies restraint of the complainant.

[66]

There was no evidence of a discussion between any of the parties with
respect to what was happening at the time the complainant was restrained. There
was some evidence that earlier in the evening Louie had wanted to speak with
the complainant about his relationship with her and she had been reluctant to
do so. It is suggested he may have restrained her from leaving the room with a
view toward, for example, initiating that discussion.

[67]

The conclusion that Louie restrained the complainant with the purpose of
sexually assaulting her or permitting Charlie to do so was central to the
judges reasoning, because there was no evidence Louie actually committed the
sexual assault. Guilt as an aider or abetter hinged upon evidence of Louies
intent to assist in the commission of the offence.

[68]

In my respectful opinion, the trial judge failed to
give
proper effect to the evidence. Having
measured the verdict against the
totality of the evidence adduced against Louie at trial,
in my opinion,
the verdict is not one that a properly instructed jury or a judge could
reasonably have rendered
. The critical inference of intent on Louies
part could not properly be drawn. Louies conviction on the count of sexual
assault should be set aside.

[69]

By restraining and thus injuring the complainant Louie may
have assaulted her, but that is not the offence charged in the indictment. Given
that the proximity of the simple assault to the aggravated sexual assault
charged cannot be established, I am of the view the simple assault cannot be
treated as a lesser included offence:
R. v.
Rocchetta
, 2016 ONCA 577
;
R.
v. G.R.
, 2005 SCC 45.;
R. v. Ovcaric
(1973), 11 C.C.C. (2d) 565
(Ont. C.A.)
;
R. v. Olson
(1997), 114 C.C.C. (3d) 374
(B.C.C.A.).

[70]

I would allow the appeal, set aside Louies conviction and enter an
acquittal in its place.

Question of Law

[71]

Given my conclusion that a misapprehension of the evidence led to an
unreasonable verdict, it is unnecessary to address Louies submission that the
trial judge committed a serious error of law by failing to consider whether
intoxication was a viable defence to the charge. I would say only, with respect
to that argument, that having rejected the appellants evidence in part because
she accepted that he was very drunk, the trial judge should have considered
whether Louie was so intoxicated at the material time as to have been incapable
of forming the intention to aid or abet the commission of the offence.

Analysis: Charlies
Appeal

Unreasonable Verdict or
Miscarriage of Justice

[72]

Charlie contends the trial judge failed to consider numerous inconsistencies
in the evidence of the complainant and submits the judge:

[In] deciding the inconsistencies
surrounding the Complainants drinking were minor and inconsequential, failed
to recognize the inconsistencies on the central issue of the sexual assault and
her memory of it. When considered in the totality of all the evidence and the
totality of all the inconsistencies, the appellant submits that the evidence of
the Complainant cannot be found to be reliable. The Trial Judge failed to
engage with the evidence as required in [
R. v. R.W.B
., [1993] B.C.J. No. 758
(C.A.)]. In doing so the Trial Judge effectively shifted the burden of proof on
the issue of the reliability of the Complainants evidence.

[73]

It is Charlies position that an inadequate assessment of the
credibility of the complainant resulted in an unreasonable verdict or a
miscarriage of justice. I would not accede to this argument.

[74]

The judge recognized the complainants evidence should be treated with
caution [at para. 74]. That caution evidently arose as a result of
evidence of the complainants intoxication, because the judge was otherwise
impressed by the complainants demeanour. She found the complainant to be clear
about what she recalled and equally clear about what she did not recall and she
did not exaggerate or make assumptions. The trial judge recognized frailties in
the complainants evidence and expressly set out the factors that caused her to
consider her testimony to be reliable. For example, the complainant accurately
described the room in which she was sitting before the assault occurred,
confirmed by photographs taken by the police. Importantly, her evidence was
corroborated in many respects by Louie.

[75]

On critical questions there was little conflict between the evidence of
witnesses in this case. None had intact memories. The only appellant who
testified, Louie, was not in a position to deny much of the complainants
evidence.

[76]

In my view, it cannot be said in this case that there was a failure to
properly weigh the complainants evidence or that there was a misapprehension
with respect to its reliability. I cannot identify an error in relation to the
consideration of the complainants evidence that would undermine the judgment
or constitute a miscarriage of justice of the nature described in
R. v.
J.F.D
.

[77]

Charlie also challenges the inference drawn by the trial judge that it
was his semen on his shorts; and the inference, from the fact semen and the
complainants blood were found on his shorts and underwear, that Charlie
participated in the sexual assault. He says it was an error on the part of the
trial judge not to consider inferences consistent with his innocence. In
particular he relies upon the statement of Cromwell J. in
R. v.
Villaroman
, 2016 SCC 33 at para. 35:

[
35
]

At one time, it
was said that in circumstantial cases, conclusions alternative to the guilt of
the accused must be rational conclusions based on inferences drawn from proven
facts: see
R. v. McIver
,
[1965] 2 O.R. 475
(C.A.)
, at p. 479,
affd without
discussion of this point
,
[1966] S.C.R. 254
. However, that view is no
longer accepted. In assessing circumstantial evidence, inferences consistent
with innocence do not have to arise from proven facts:
R. v. Khela
, 2009 SCC 4
,
[2009] 1 S.C.R. 104, at para. 58;
see also
R. v. Defaveri
, 2014 BCCA 370, 361 B.C.A.C. 301,
at para. 10;
R. v. Bui
, 2014 ONCA 614, 14 C.R. (7th) 149,
at para. 28
. Requiring proven facts to support explanations
other than guilt wrongly puts an obligation on an accused to prove facts and is
contrary to the rule that whether there is a reasonable doubt is assessed by
considering all of the evidence. The issue with respect to circumstantial
evidence is the range of reasonable inferences that can be drawn from it. If
there are reasonable inferences other than guilt, the Crowns evidence does not
meet the standard of proof beyond a reasonable doubt.

[78]

I would not accede to the argument that the trial judge erred in drawing
an inference that the semen on Charlies shorts was his. That is so likely to
have been the case that the inference could properly have been drawn in the
absence of any evidence to the contrary.

[79]

Nor would I accede to the argument that the trial judge erred in drawing
an inference from the presence of that semen and the complainants blood on
Charlies shorts and underwear that he was at the very least, a party to the
sexual assault.

[80]

In the course of submissions at trial it was suggested to the trial
judge that the complainant may have laid upon Charlie or he might have picked
her up after she began to bleed profusely. The trial judge was aware of that
suggestion but clearly discounted it. While there was no evidence from either
the complainant or Charlie with respect to how his shorts and underwear became
saturated with the complainants blood, it is my view that the circumstantial
evidence supported the trial judges conclusion that Charlie was present while
the sexual assault was committed and involved in the commission of the offence
to some extent.

[81]

It is open to us to consider the accuseds silence as indicative of an
absence of an exculpatory explanation (in this case an explanation of the blood
and semen on his pants) when considering an unreasonable verdict argument on
appeal:
R v. Noble,
[1977] 1 S.C.R. 874 at para. 103;
R. v. George-Nurse,
2019 SCC 12, affirming 2018 ONCA 515).

[82]

Applying the deferential standard of review that is appropriate where an
appellant challenges the inferences drawn by a trial judge (as described
recently by DeWitt‑Van Oosten J.A. in
R. v. Bransford
, 2019 BCCA 408
at paras. 3134), I would dismiss the appeal on this ground.

Question of Law

[83]

Charlie argues the reasons for judgment insufficiently describe the
basis for his conviction and do not permit meaningful appellate review. That submission
should be read in light of the principles described in
R. v. R.E.M
, 2008 SCC 51:

[
20
]

[T]he trial judge need
not expound on evidence which is uncontroversial, or detail his or her finding
on each piece of evidence or controverted fact,
so long as the findings
linking the evidence to the verdict can be logically discerned.

[
21
]

This is what is meant by
the phrase in
Sheppard
the path taken by the trial judge through
confused or conflicting evidence (para. 46)
.
In
Sheppard
,
it was not possible to determine what facts the trial judge had found. Hence,
it was not possible to conclude
why
the trial judge had arrived at
what
he concluded  the verdict.

[Emphasis added.]

[84]

The Crown contends the judge was satisfied beyond a reasonable doubt
that Charlie directly participated in the sexual assault. However, as counsel
for Charlie notes, at paras. 97 and 98 of the judgment, cited above,
the judge expresses uncertainty as to whether Mr. Charlie or Mr. Louie
personally sexually assaulted N.J. or whether they aided and abetted the sexual
assault. In that passage, the judge addresses the distinct aspects of party
liability set out in s.
21(1) of the
Code
. She
juxtaposes personal involvement in the commission of the sexual assault with
aiding and abetting. She was uncertain, in effect, whether Mr. Charlie was
a party to the offence by: (a)
actually committing
the offence; (b) by doing or omitting to do anything for the purpose of
aiding any person to commit it; or (c) by abetting any person in
committing it. For that reason,

Charlie says the
reasons for judgment in this case do not provide the
clear
articulation of the factual findings referred to in
R.E.M
.

[85]

In my view, the evidence adduced at trial was capable of supporting the
conclusion that Charlie was a party to the offence and the basis for this
conclusion is discernable from the reasons for judgment based on the findings
of fact articulated by the trial judge.

[86]

As the Crown suggests, there was some evidence that Charlie actually
committed the offence under s. 21(1)(a): physical evidence that Charlie
had direct physical contact with the complainant as she was assaulted (sufficient,
pursuant to the principles described in
Ball
and
Magoon
to support
a conviction founded upon
actual commission
of the offence). The judges
finding of uncertainty with respect to what each man did would not be a
barrier to a conviction on this basis, because the extent of participation does
not need to be precisely determined. However, I would read the trial judges
uncertainty with respect to whether Charlie personally sexually assaulted the
complainant to be uncertainty with respect to whether he actually committed the
offence.

[87]

Given the evidence of blood and semen on Charlies shorts and underwear,
it was also open to the judge to draw the inference that Charlie was so close
to the commission of the offence as to encourage, instigate or assist in its commission.
The blood and semen on his shorts are strong evidence that he was not merely
present at the scene of an offence but a participant. In my view, that finding
is implicit in the trial judges conclusion that Mr. Charlie was, at the
very least, a party to the sexual assault.

[88]

While some uncertainty is introduced by the wording of the reasons, para. 98
in particular, I would not accede to the argument that
an error
of law has been made out on the basis of insufficiency of reasons.

The findings linking the evidence to the verdict
can be logically discerned.

Conclusion

[89]

Insofar as the appropriate order on this appeal is concerned, I note the
following observations of the Supreme Court of Canada in
R. v.
Pittiman
, 2006 SCC 9:

[14
]

Section 686(2) of the
Criminal Code
provides that where a court of appeal allows an appeal from conviction, it may
direct an acquittal or order a new trial. Where a conviction is set aside on
the ground that the verdict is unsupported by the evidence, the court of
appeal, absent legal errors in respect of the admissibility of evidence, will
usually enter an acquittal. As noted by Doherty J.A. in
R. v. Harvey
(2001),
160 C.C.C. (3d) 52 (Ont. C.A.), at para. 30, [a]n
acquittal is the appropriate order because it would be unfair to order a new
trial and give the Crown a second opportunity to present a case on which a
reasonable trier of fact could convict.

[90]

For reasons set out above, I would set aside the
conviction of Louie and enter an acquittal on the ground the verdict is
unsupported by the evidence. I would dismiss Charlies appeal.

The
Honourable Mr. Justice Willcock

I agree:

The Honourable Madam Justice Newbury

I agree:

The Honourable Mr. Justice
Goepel


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Sesay,

2020 BCCA 41

Date: 20200124

Docket: CA46120

Between:

Regina

Respondent

And

Latto Simian Sesay

Appellant

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Butler

On appeal from:  An
order of the Supreme Court of British Columbia, dated
May 3, 2019 (sentence) (
R. v. Sesay
,
2019 BCSC 795, Victoria Docket 173593).

Oral Reasons for Judgment

Counsel for the Appellant:

R. Mansoori‑Dara

Counsel for the Respondent:

J.M. Gordon, Q.C.

J.A. Dyck

Place and Date of Hearing:

Vancouver, British Columbia

January 22, 2020

Place and Date of Judgment:

Vancouver, British Columbia

January 24, 2020

Summary:

The appellant seeks leave to
appeal and, if leave is granted, an order reducing his sentence for
aggravated assault. He was sentenced to six and one‑half years
imprisonment, less credit for pre‑sentence custody awarded at
a rate of 1.5, for an unprovoked sucker punch assault
that left the victim with a life‑altering brain injury. The
appellant submits that the sentencing judge erred
by: (1) imposing a demonstrably
unfit sentence; (2) failing to consider the appellants
personality disorder in assessing his moral blameworthiness; (3) treating
the appellants misleading statements to police following his arrest as an
aggravating circumstance; and (4) miscalculating his credit for
pre‑sentence custody. Held: Leave is granted and the appeal is
allowed, but only to the limited extent of reducing the sentence by
23 days to account for the judges mathematical error. The
sentence is not demonstrably unfit given the
appellants violent antecedents, the risk he poses to the public, and
the devastating harm caused to the victim. The sentencing judge did
not err by failing to treat the appellants personality disorder as a
mitigating circumstance. The sentencing judge did err in principle in
treating the appellants misleading statements to police, which sought to
deflect responsibility for the assault to the victim, as an
aggravating circumstance. However, this error cannot reasonably be
supposed to have had a material impact on the sentence.

FITCH J.A.
:

I.      Introduction

[1]

On March 31, 2018, the appellant,
Latto Simian Sesay, committed an unprovoked assault on
Brian Rowley by sucker punching him in the face when the
two men happened to encounter one another in an alley adjacent to a bar in
Victoria, British Columbia. Mr. Rowley crumpled from the powerful
force of the unexpected blow and struck his head on the ground. He sustained a
significant and life‑altering brain injury. Despite the fact that
the appellant acknowledged hearing the victims head hit the ground with what
he described as a sickening sound, he walked away from the scene
wagging his finger at Mr. Rowley in what I gather was some sort of
drunken taunt. The appellant made no effort to obtain
medical assistance for Mr. Rowley.

[2]

The appellant had been drinking heavily and ingesting cocaine
before committing the offence. When he was apprehended a short distance
from the scene, he resisted arrest and attempted to fight with
police officers. He was tasered twice and restrained in the course of the
ensuing scuffle. He told the arresting officers, If I am going to do
pen time, Im going to take one of you with me.

[3]

The appellant was charged with aggravated assault and obstructing a
peace officer in the execution of his duty, contrary
to ss. 268(2) and 129(a) of the
Criminal Code
,
R.S.C. 1985, c. C‑46 [
Code
].

[4]

The appellant pleaded guilty to the latter offence. He was
convicted of aggravated assault by a Supreme Court judge following a
four‑day trial. His defence of self‑defence was rejected.
Reasons for judgment are indexed as 2019 BCSC 76.

[5]

The appellant was sentenced to six and one‑half years imprisonment
for aggravated assault, less credit for pre‑sentence custody
awarded at a rate of 1.5 days for every day spent in pre‑sentence custody.
A concurrent sentence of six months imprisonment was imposed
for obstructing a peace officer. In addition, a number of
ancillary sentencing orders were made that are not contested on
appeal. Reasons for sentence are indexed as 2019 BCSC 795.

[6]

Against this background, the appellant seeks an order granting him leave
to appeal sentence and, if leave is granted, an order allowing his appeal and
reducing the sentence to five years imprisonment.

[7]

The appellant submits that the judge erred by: (1) imposing a
demonstrably unfit sentence; (2) failing to consider the appellants
personality disorder in assessing his moral blameworthiness; (3) treating
the appellants misleading statements to the police
following his arrest as an aggravating circumstance; and
(4) miscalculating the credit he should have been given for
time spent in pre‑sentence custody.

[8]

A few additional introductory remarks are necessary to put the
second ground of appeal in context. The appellant
does not dispute that he has a significant personality disorder
with antisocial and narcissistic traits. A psychiatric report
prepared for sentencing confirms this diagnosis. Further, the
appellant concedes that the sentencing judge was not asked to treat his
personality disorder as a mitigating circumstance that attenuated his
moral culpability. He acknowledges that this issue is raised for the first time
on appeal. He submits, nevertheless, that the sentencing judge had an
independent obligation to consider whether his personality disorder
contributed to the commission of these offences and served to diminish his
moral culpability. He argues that the judge erred in principle by failing
to make that inquiry on his own motion. To rectify the situation, he submits,
for the first time in oral argument, that the question of whether there exists
a link between his personality disorder and the offences should be remitted to
the sentencing judge for inquiry pursuant to
s. 683(1)(e) of the
Code
. The appellant relies on
R. v. Pahl
,
2016 BCCA 234, in support of this unusual submission.

[9]

The Crown concedes that the judge made a mathematical error in
calculating the time that should have been credited for pre‑sentence custody.
The appellant was credited 574 days. He should have been credited
597 days for time spent in pre‑sentence custody. The Crown
otherwise opposes the remedies the appellant seeks.

[10]

For the reasons that follow, I would
grant leave to appeal and allow the appeal, but only to the
limited extent of reducing the sentence by 23 days to take account of
the judges mathematical error.

II.     Circumstances of the Offence

[11]

The circumstances surrounding the lead offence were summarized by
the judge in his reasons for sentence:

[8]        At trial, Mr. Sesay testified that he walked
down the alley looking for his friends, who had agreed to meet up with him when
the bars closed at 2 a.m. He stepped into a puddle of liquid that he
though[t] was urine. He became frustrated and upset. When he saw Mr. Rowley
standing behind the dumpster, he decided to confront him, explaining in his
testimony it is what he does when he is upset. He also acknowledged that he has
a temper such that, he said, stuff builds up in me; it fills up like a jar and
I explode. Indeed, that is what occurred after he stepped in the puddle and
saw Mr. Rowley almost immediately thereafter.

[9]        Mr. Sesay walked up and stood in front of Mr. Rowley
to stop him, and said something to him. A brief verbal interaction, initiated
by Mr. Sesay, of approximately six seconds ensued. There was
nothing provocative or threatening about Mr. Rowleys movement of his arms
and hands. His appearance was passive throughout. Conversely, Mr. Sesay
took up what he called a bladed stance before striking Mr. Rowley, which
is something that he learned while in prison as a technique to fight. Mr. Sesay
also leaned into Mr. Rowley as he spoke to him. At one point, Mr. Sesay
placed his left arm and hand either on or in extreme close proximity to Mr. Rowleys
chest area and right shoulder as he leaned into Mr. Rowley, all the while
levelling insults at him.

[10]      Mr. Sesay knew that Mr. Rowley was not
responsible for the puddle that he had just stepped in.

[11]      Suddenly, and without warning, Mr. Sesay
punched Mr. Rowley directly in the face. Upon being struck, Mr. Rowley
immediately fell backwards to the ground and hit his head. Mr. Sesay
admitted in his evidence at trial that he knew Mr. Rowley was unconscious
as soon as he hit him. Even though Mr. Sesay watched Mr. Rowley fall
directly to the ground, heard him hit his head with a noise that he said he
will never forget, and claimed in his evidence to be alarmed at what he had
done, Mr. Sesay turned and walked quickly down the alley in the direction
he had previously come, and exited onto Courtney Street.

[12]      Just before leaving the alley, Mr. Sesay
turned back towards the direction where Mr. Rowley had fallen to the
ground, and raised his arm and wagged at least two of his fingers
as if to signal a final taunt or jeer. At no time did Mr. Sesay stop to
check on Mr. Rowley.

[13]      Prior to striking Mr. Rowley,
Mr. Sesay had been drinking alcohol with his girlfriend and other friends
since he finished work at approximately 4:30 p.m. on March 27. Over
the course of the evening, he consumed some 10 to 12 alcoholic drinks,
including three doubles, all containing vodka and the Red Bull caffeinated
energy drink. He also ingested cocaine.

[12]

Mr. Rowley was 28 years of age at the time of
sentencing. At the time of the assault, he was studying for a
masters degree in community development at the
University of Victoria. He was also working to pay for school and
volunteering with a community‑based association that provides support
to children with autism. As noted earlier, Mr. Rowley suffered a moderate
to severe brain injury as a consequence of the assault that will affect
him for the rest of his life. He was hospitalized for over one week after the
offence and continues to receive physical and cognitive therapy as an
outpatient at Victorias Royal Jubilee Hospital. He has no
current source of income and understandably struggles with both sadness and
fear that the appellant will come after him in the future.

[13]

As might be expected, Mr. Rowleys parents have also
experienced the impact of this offence. They relocated from
Ontario to Victoria to assist their son in his recovery. They did so
at the expense of their jobs and other family relationships, including
relationships with their grandchildren who live in Ontario. At the time of
sentencing, the victims mother had been forced to move back to Ontario to
secure work to meet the familys financial needs. As a consequence of this
decision, Mr. Rowleys parents are temporarily separated  an
unfortunate situation for which he feels responsible.

III.    Circumstances of the Offender

[14]

The appellant was 34 years of age at the time of
sentencing. He had an unfortunate upbringing that involved interventions
by the Childrens Aid Society and his placement in
various group homes.

[15]

The appellant was involved with setting fires to
a number of townhouses at a very young age. His first
encounter with the youth criminal justice system was when he was
13 years old.

[16]

The appellant has a horrendous criminal record. He has been
convicted of assault‑related offences on six occasions, most
recently in 2013. He has twice been convicted of
uttering threats. He has one conviction for robbery,
one conviction for sexual interference, and one conviction for
committing an indecent act. He has numerous convictions for failing to
comply with his probation order or recognizance. He has previously
served time in a federal penitentiary.

[17]

The appellants criminal history was summarized in greater detail
by the sentencing judge:

[28]

His
criminal record spans back in time to 1998, when he was 13 years old.
His record includes convictions for crimes (including assaults) involving
violence (which [the author of the pre‑sentence‑report] describes
as general, domestic, expressive, and instrumental violence), robbery, property‑related
offences, driving offences, sexual offences (one involving a friends child),
and failing to abide by court orders:

(a)

January 26, 1998,
assault;

(b)

June 6, 2000,
uttering threats, failing to comply with disposition and recognizance;

(c)

January 3, 2001,
theft under $5000 and failing to comply with disposition;

(d)

May 1, 2001,
escape from lawful custody;

(e)

August 3, 2001,
mischief under $5000 and failing to comply with disposition;

(f)

March 14, 2002,
assaulting a police officer;

(g)

March 26, 2003,
robbery;

(h)

September 7, 2004,
uttering threats;

(i)

March 20, 2007,
assault and public mischief;

(j)

February 4, 2010,
sexual interference, assault, theft under $5000, and failing to
comply with probation order and recognizance;

(k)

June 29, 2012,
failing to comply with prohibition regarding children;

(l)

October 11, 2012,
assault, mischief over $5000, and failing to comply with probation order;

(m)

May 10, 2013,
assaulting and obstruction of a police officer, indecent act;

(n)

September 18, 2013,
break and enter; failing to comply with probation order;

(o)

July 12, 2018,
driving while suspended;

(p)

August 9, 2018,
driving while prohibited;

(q)

October 10, 2018,
operating a motor vehicle to cause nuisance by noise; and

(r)

October 26, 2018,
theft under $5000.

[29]

The 2003 robbery
included threats of violence uttered by Mr. Sesay as he robbed a woman of
her purse while he was armed with a 12 inch knife. He told the victim
to give him her purse or he would stab her.

[30]

The 2004 uttering
threat offence involved Mr. Sesay, as one of a group of individuals making
harassing phone calls from jail to a woman. He threatened to kill her, telling
her that she would be cut up and raped.

[31]

The 2013 assaulting
and obstructing a police officer offence involved Mr. Sesay engaged in
physical violence, including kicking. He bit one officer and sent one for
medical treatment. It took five police officers to subdue him and get
him into the police van. He continued to misbehave while in custody and told
police officers that he would not come out of his cell without a fight. He took
a light from its fixture and held it up to use it as a weapon. While
handcuffed, he announced that he would injure as many officers as possible, and
when they least expected it, hed attack. He spat at one corrections officer.

[32]

While Mr. Sesay points to a five‑year period
without convictions between 2013 and 2018, some of that time was
spent in custody following his sentence on September 18, 2013 of 531 days
for breaking and entering.

[18]

Prior to his incarceration for the offences before us, the
appellant had not participated in any form of
drug or alcohol treatment. He had also declined to participate
in violence prevention programs made available to him in the past.

[19]

Despite his criminal record, the appellant told the author of the
pre‑sentence report that he believes he has good problem‑solving skills
and good coping skills. He said that he is not aggressive and
began working on developing more pro‑social skills during a period
of incarceration five years earlier. Notwithstanding his lengthy
history of non‑compliance with court orders, the appellant reported
having no concerns about his ability to follow any conditions deemed appropriate
by the court.

[20]

The appellant was found by the probation officer to be an
unreliable historian. For example, he denied having any children when he
was interviewed by the probation officer charged with preparing the pre‑sentence report
but told Dr. Miller, who prepared a pre‑sentence psychiatric report,
that he has two young boys with whom he is not in touch. In reports
prepared by the Correctional Service of Canada (CSC), the
appellant was noted to be a skilled manipulator for whom dishonesty seems
to come easily.

[21]

Dr. Miller diagnosed the appellant with an
alcohol and substance abuse disorder. He also thought it
probable that the appellant had a significant personality disorder with
antisocial and narcissistic tendencies. There was no evidence that the
appellant suffered from a severe mental illness such as
schizophrenia, bipolar disorder or other psychotic illnesses. There
was no evidence that his thinking process was impaired by mental illness
at the time of the assault, although it likely was by the
voluntary ingestion of alcohol and drugs.

[22]

In terms of risk assessment, Dr. Miller opined that the
appellant presented a moderate to high risk of
further violent offending. He also expressed the view that if the
appellant were to reoffend, it was likely he would commit similar offences
causing serious bodily harm.

[23]

Dr. Millers report is consistent with a
psychological assessment undertaken on behalf of the
CSC in 2014. In that report, the appellant was assessed as having
markers associated with psychopathy and being in the
high moderate range for both general and violent recidivism.

[24]

Notably, the appellant has performed well since being incarcerated.
In 2018, the appellant was placed in the Right Living Unit,
which holds reform‑minded offenders to strict account. Letters
submitted on his behalf by individuals working with him in the institution give
rise to guarded optimism that the appellant may finally be taking steps
towards rehabilitation.

IV.   The Positions of Counsel on Sentencing

[25]

The Crown sought a sentence of imprisonment of
six to eight years for aggravated assault and a concurrent
six‑month sentence for the obstruction offence. Neither the
Crown nor the sentencing judge made specific mention of the totality
principle.

[26]

The appellant sought a sentence of
two years less one day (after taking into account the time
he served in pre‑sentence custody) to be followed by a three‑year
probation order.

V.    Reasons for Sentence

[27]

The judge reviewed what he considered to be the
aggravating and mitigating features of the case. He gave the
appellants expressions of remorse limited weight, finding the appellant
to be disingenuous in relating to Dr. Miller the self‑serving
statement that he did not appreciate that he could hurt Mr. Rowley as much
as he did. The judge also viewed with caution the extent to which the appellant
claimed to have made rehabilitative strides while incarcerated.

[28]

The judge found the appellants moral culpability to be high and
concluded that the sentencing principles of protection of the public,
general deterrence and denunciation required emphasis.

VI.   Analysis of Grounds of Appeal

[29]

Appeals from sentence attract a deferential
standard of review. Appellate intervention will only be justified if
the sentencing judge committed an error in principle that had an impact on
the sentence or imposed a sentence that is demonstrably unfit:
R. v. Lacasse
,
2015 SCC 64 at para. 11;
R. v. Agin
,
2018 BCCA 133 at paras. 5657.

[30]

The appellants first ground of appeal is that the sentence is
demonstrably unfit. He submits that the general sentencing range for
aggravated assault is between 16 months and
six years imprisonment and says that nothing about this case
justified a departure from that range. I do not agree.

[31]

I begin by noting that aggravated assault is a serious offence
punishable by a maximum period of imprisonment of 14 years.

[32]

While sentencing ranges provide useful guidelines that serve
to minimize disparity in sentencing practices, they do not displace an
individualized approach to sentencing. That a sentence exceeds the
generally applicable range does not mean that it is the product of an error in
principle or that it is demonstrably unfit:
Lacasse
at
paras. 5761.

[33]

This Court has upheld sentences in the range of
six to eight years for assaults causing life‑altering injuries
to the victim. As noted in
R. v. Payne
,
2007 BCCA 541 at para. 44, sentences in the range of
six to eight years for serious aggravated assaults are not
uncommon: see also
R. v. Heiney
,
2018 BCCA 313 at para. 58;
R. v. Larose
,
2013 BCCA 450 at paras. 1722;
R. v. Woodward
,
2011 BCCA 251 at para. 30;
R. v. Tschritter
,
2006 BCCA 202 at para. 14;
R. v. Biln
,
1999 BCCA 369 at para. 24; and
R. v. Rasanen
(1997),
92 B.C.A.C. 74 at paras. 5, 9.

[34]

I recognize that no two cases are exactly alike and that
factual distinctions can be drawn between these cases and the
one at bar. As Justice Saunders noted in
Larose
at
para. 17, the circumstances in which the offence of
aggravated assault may be committed are variable and difficult to organize
into categories. I also recognize that the injury in this case,
as in
Woodward
, was caused by a single punch, not by a
prolonged beating or the use of a weapon.

[35]

Nevertheless, I am of the view that the sentence imposed in this case is
not a marked departure from sentences imposed in comparable cases.
Moreover, the sentence is justified by the appellants
violent antecedents, the risk he poses to the public, and the
devastating harm he caused to Mr. Rowley. The callous disregard the
appellant demonstrated by leaving Mr. Rowley unattended and in an
unconscious state is a particularly disturbing feature of this case. The
judge properly treated this as a factor aggravating the appellants moral
culpability. In my view, the sentence has not been shown to be demonstrably unfit.

[36]

I turn next to consider the appellants submission that the judge
erred in principle by failing to consider whether his personality disorder
should operate in mitigation of penalty. I would not give effect to this
ground of appeal.

[37]

The appellant has not been diagnosed with a
major mental disorder affecting his cognitive capacity. Rather,
he displays traits typically associated with an antisocial or
narcissistic personality disorder  traits that make him a
moderate to high risk to reoffend violently. The appellants
entrenched antisocial attitudes are reflected in his criminal record.
It is not surprising that the attitudes and behaviours rooted in his
personality disorder were not regarded by the judge as mitigating. Indeed,
I know of no case in which the antisocial personality traits of an
offender who has a lengthy record for violent behaviour has been treated as a
mitigating circumstance.

[38]

Further, it is not surprising that the
appellants substance abuse disorder was not treated as a mitigating factor
where the appellant, despite his criminal history, has not availed himself
of any form of drug or alcohol treatment in the past.

[39]

I see no merit in the appellants submission that the judge
committed a material error in principle by failing to consider whether
there was a link between the appellants personality disorder and his
assaultive behaviour, or in his related contention that the matter should
be remitted to the sentencing court for inquiry into that issue pursuant to
s. 683(1)(e) of the
Code
. In my view, the only
reasonable inference to be drawn from the psychiatric report is that
such a link exists. But even assuming that such an inference is unavailable on
the record, demonstration of the existence of a link between the appellants personality disorder
and the offences he committed would not assist him on this appeal. It would
simply confirm that he presents a continuing risk to public safety.

[40]

There is, however, merit in the appellants
third ground of appeal that the judge erred in principle by
treating misleading statements he made to the police following his
arrest  statements that sought to deflect responsibility for
the assault to Mr. Rowley  as an aggravating circumstance.

[41]

To put this issue in context, the remarks appear to me to have
been motivated by a meritless submission made by the appellants
trial counsel (not counsel on this appeal) that the appellant demonstrated
remorse from day one. The judge asked how this could be so in
circumstances where the appellant sought from the outset to cast blame on
Mr. Rowley. While I do not question the legitimacy of the
judges inquiry, as a general rule the fact that an offender made
disingenuous statements to the police after his arrest is not properly
characterized as an aggravating circumstance. The judge was entitled, in
my view, to entirely discount the submission that the appellants post‑offence conduct
displayed immediate remorse. He was also entitled to consider the
appellants post‑offence conduct in assessing the appellants rehabilitative prospects.
The difficulty in this case is that the judge appears to have used the
appellants attempt to shift responsibility to Mr. Rowley as a
circumstance that aggravated the offence:
R. v. Kreutziger
,

2005 BCCA 231 at para. 12
.

[42]

In addressing the aggravating features of this case, the judge said
this:

[72]      Another [aggravating factor] is Mr. Sesays
untruthful account to the police, following his arrest, of the events in order
to paint Mr. Rowley in a negative light and thereby decrease his own
culpability.

[107]    To summarize, the circumstances of Mr. Sesays
assault on Mr. Rowley involved an unprovoked and direct forceful assault,
borne out of Mr. Sesays uncontrolled anger, on an unsuspecting victim who
had no opportunity to defend himself, in order to mete out punishment for an
act Mr. Sesay knew Mr. Rowley did not commit. Mr. Sesay
immediately left the scene after watching Mr. Rowley fall to the ground
and strike his head, knowing that he had struck him with such force that he was
immediately rendered unconscious. As he left, he turned and wagged at least two
of his fingers back where Mr. Rowley lay on the ground in defiance. After
learning how to fight in prison, Mr. Sesay was well aware of the force he
could use when striking blows with his fist.
In dealing with the police
after his arrest, Mr. Sesay knowingly provided an inaccurate account of
events in order to cast culpability on his victim and thereby minimize his own.
The degree of Mr. Sesays moral culpability is high.

[Emphasis added.]

[43]

In my view, the judge erred in principle in his approach to this issue.
The issue is whether this error in principle had an impact on the sentence:
Lacasse
at para. 44. In my view, it did not. In light of the number and kind of
aggravating circumstances present in this case, the appellants post‑offence attempt
to shift responsibility for what occurred to Mr. Rowley cannot reasonably
be supposed to have played any material role in the imposition of the
sentence. I would not intervene on this basis.

[44]

As noted earlier, the trial judge made a mathematical error in
calculating the number of days the appellant should be credited for
time served in pre‑sentence custody. To rectify this error, I would
reduce the sentence imposed on the appellant by 23 days.

VII.  Conclusion

[45]

In the result, I would grant leave to appeal and allow
the appeal to the limited extent of reducing the sentence by 23 days.

[46]

SAUNDERS J.A.
: I agree.

[47]

BUTLER J.A.
: I agree.

[48]

SAUNDERS J.A.
: Leave to appeal is granted. The
appeal is allowed to the extent of substituting for the sentence imposed a
sentence of six and one‑half years less 597 days
to account correctly for pre‑sentence custody, that is a reduction
of 23 days.

The Honourable Mr. Justice Fitch