WARNING

THIS IS AN APPEAL UNDER THE

YOUNG OFFENDERS ACT

AND IS SUBJECT TO s. 38 OF THE ACT WHICH PROVIDES:

38.(1) Subject to this section, no person shall publish by any means any report

(a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or

(b) of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence

in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.

(2) Every one who contravenes subsection (1), …

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

DATE: 20030130

DOCKET: C35596 & C36223

COURT OF APPEAL FOR ONTARIO

DOHERTY, AUSTIN AND MACPHERSON JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

L. P. and R. B.

Appellants

Paul D. Stern for the appellant L. P.

Timothy E. Breen for the appellant R. B.

John McInnes for the respondent

Heard: January 23, 2003

On appeal from the convictions entered by Justice Michael H. Caney, of the Ontario Court of Justice, on November 15, 2000 and an appeal from the disposition imposed on R. B. on March 27, 2001.

BY THE COURT:

[1] The appellants were convicted of aggravated assault and sentenced to one year in secure custody followed by a period of probation. L.P. appeals conviction only. R.B. appeals conviction and disposition. A third accused, K.H., was acquitted.

The Conviction Appeals

[2] The appellants and K.H. associated with a group of boys who called themselves SHA. The victim, Jonathon Wamback, associated with another group who called themselves T. K. On the day of the assault, the appellants and others in their group came to believe that Jonathon Wamback had painted racial slurs on the washroom wall in a park frequented by both groups. K.H. is black. Some members of SHA confronted Jonathon outside the washroom but eventually let him go. The appellants, K.J and two others decided to look for Jonathon and eventually confronted him in a yard in a nearby house. That confrontation became violent. L.P. punched Jonathon in the head area, knocking him toward the ground. As Jonathon was falling L.P. struck him with his fist in the head area two more times. Jonathon was lying on the ground in a fetal position with his hands covering his head when R.B. directed a kick at Jonathon’s head using a motion akin to that used when punting a football.

[3] Jonathon got up after he was kicked and left the area, eventually making his way to his home. He did not appear to be hurt. As the night went on, Jonathon developed neurological symptoms and had to be rushed to the hospital. Life saving surgery was performed on Jonathon in the early hours of the next morning. He had suffered a depressed fracture of the skull on the right side of the head. There was considerable swelling within the skull following the operation. Jonathon was on life support after the operation and remained in a coma for several months. Fortunately, his condition has improved but he remains significantly neurologically impaired.

[4] In the days following the assault L.P. admitted to friends that he had punched Jonathon in the head and knocked him to the ground. R.B. admitted to those same friends that he had directed a kick at Jonathon’s head while Jonathan was lying on the ground with his hands over his head.

[5] Neither appellant testified at trial.

[6] On appeal, both counsel concede that the appellants were properly convicted of assault but they argue that the convictions for aggravated assault cannot stand.

[7] The appellants submit that the trial judge misapprehended the evidence going to the question of causation. They refer to one paragraph in the trial judge’s reasons where they submit the trial judge listed possible causes of the injury. They contend that there was no evidence to support at least two of the possibilities listed by the trial judge. He did not find that either of these possibilities had in fact occurred.

[8] We find no misapprehension of the evidence. A review of the entirety of the reasons demonstrates that the trial judge had a full appreciation of the expert evidence as to causation and that he understood the relatively narrow differences between the opinions advanced by the two experts. The impugned passage was no more than an indication that none of the possible causes of the injury could be determined with “scientific certainty”. No one questions this conclusion.

[9] Even if it could be said that one or more of the causes listed as possibilities by the trial judge were not legitimate possibilities on the evidence, that misapprehension would in no way taint the trial judge’s conclusion that the injuries were caused in the course of the assault by the appellants. On the expert evidence, the injuries could have been caused by the assault or they could have been caused by a fall on to a hard protruding object. The experts also agreed that the symptoms could have taken up to twelve hours to manifest themselves.

[10] The trial judge had to consider the expert evidence as to causation in combination with the evidence of the witnesses who testified as to what had happened to Jonathon Wamback on the night in question. The trial judge referred at some length to all of the evidence. It was up to him to decide based on the entirety of that evidence whether the Crown had proved beyond a reasonable doubt that the injuries were caused by the assault. We think it was open to him to find that the assault, which both experts agreed could have caused the injury, in fact did cause the injury and that on the entirety of the evidence, a fall, the other possible cause identified by the experts, was not a “realistic possibility”. We do not read the reasons as placing any onus on the appellants to explain the injuries but rather read them as considering whether on the evidence there was any reasonable explanation for the injuries other than the assault.

[11] The trial judge’s findings on the issue of causation were reasonable, were not tainted by any material misapprehension of the evidence and do not suggest a reversal of the onus of proof.

[12] The Crown’s failure to call Jonathon Wamback as a witness gives rise to the next ground of appeal. In closing argument, counsel for the appellants contended that the trial judge should draw an adverse inference from the failure to call Jonathon. In their submission he was a crucial witness and the Crown’s failure to call him was unexplained. Counsel pointed to excerpts from Jonathon’s medical records which had been filed during the trial and argued that these excerpts supported the claim that Jonathon was able to testify. In response to these submissions the Crown referred to other parts of the same records and submitted that these records showed that Jonathon was not able to testify. None of the medical records was directed specifically to Jonathon’s ability to testify at trial.

[13] In the course of their closing argument, counsel also referred to R. v. Cook (1997), 1997 392 (SCC), 114 C.C.C. (3d) 481 at 498 (S.C.C.), the leading case on the effect of the Crown’s failure to call a material witness. That authority indicates that where the Crown fails to call the victim and no explanation is offered for that failure, the trier of fact may draw an adverse inference from the failure to call the victim.

[14] The trial judge made no reference to the failure to call Jonathon in the course of his careful reasons for judgment. We take from that silence either that the trial judge was satisfied with the Crown’s explanation for the failure to call Jonathon or that, as the trier of fact, he chose not to draw an adverse inference from that failure. Either course of conduct was open to the trial judge and neither would result in reversible error.

[15] Counsel next submitted that the trial judge failed to consider whether the appellants had the necessary fault element to support a conviction for the offence of aggravated assault. The Crown was required to prove objective foreseeability of the risk of bodily harm flowing from the assault: R. v. Foti (2002), 2002 MBCA 122, 169 C.C.C. (3d) 57 at 63 (Man. C.A.); R. v. Vang (1999), 1999 2310 (ON CA), 132 C.C.C. (3d) 32 (Ont. C.A.). The Crown was not required to prove objective foreseeability of the risk of the injury that Jonathon actually suffered.

[16] We reject this submission. The existence of the requisite fault element was not a live issue by the end of the trial. It is beyond question that the risk of bodily harm is an objectively foreseeable consequence of the administration of several blows and a kick to the head of another person. Counsel at trial did not argue that the Crown had failed to prove the requisite fault element. The absence of any submissions on this issue reflects the fact that it could not realistically be suggested that objective foresight of the risk of bodily harm had not been proved once the assaults were established.

[17] Counsel also submitted that the trial judge erred in finding that R.B. and L.P. acted jointly in committing the assault, making it unnecessary for the purposes of liability to determine whether the punch or the kick caused the injury. Counsel rely on the acquittal of K.H. and the gap in time between the punches and the kick in support of this submission.

[18] It was open to the trial judge to find that the appellants acted together as joint perpetrators of the assault. They went after Jonathon together and confronted him together. In the course of the same series of events which occurred in a short time span both appellants assaulted Jonathon. We cannot agree that the brief interval between the punches and the kick rendered the conclusion that the appellants acted together unreasonable. To the contrary, we think the attempt to portray the two assaults as discrete and unconnected events is a strained and unrealistic interpretation of the events.

[19] The trial judge’s acquittal of K.H. was based on the uncontested evidence that K.H. was not actually involved in the assault. He could not be liable as a perpetrator. The trial judge did not go on to consider whether K.H. could be liable on some other basis. His failure to do so does not affect the reasonableness or validity of his conclusion that the two appellants jointly assaulted Jonathon and were therefore equally liable for the offence.

[20] Lastly, counsel for the appellants argued that the trial judge failed to consider relevant evidence in arriving at his conclusion that Jonathon’s friends had fabricated an innocent explanation for Jonathon’s injuries and offered an explanation to Jonathon’s parents on the night of the assault. The friends told Jonathon’s parents that Jonathon had fallen on a rock. Counsel for the appellants contend that the trial judge should not have rejected that explanation as untrue. In their submissions, counsel referred to certain differences between the evidence of the two friends of Jonathon who testified. They submit that the trial judge did not address these differences in his reasons.

[21] The trial judge’s failure to allude specifically to the differences in the evidence given by the two witnesses in no way undermines the validity of his conclusion that the explanation offered to Jonathon’s parents was false. The differences in the evidence of the two witnesses were not significant. The trial judge reviewed the evidence at some length and alluded to the factors which could impact negatively on the evidence of the two friends. He concluded that the evidence that the friends concocted an innocent explanation for Jonathon’s injuries was “understandable and logical, considering the history of the racist graffiti which immediately preceded the attack”. This conclusion is firmly rooted in the evidence and reveals no reversible error.

[22] The appeals from conviction are dismissed.

The Disposition Appeal by R.B.

[23] The determination of an appropriate disposition for a young offender who has committed a serious offence is always a difficult task. It is particularly difficult where, as in this case, R.B. is a young person with no criminal record and who, apart from the offence, presents as a person of good character with strong family support and positive prospects.

[24] The serious consequences of this offence for Jonathon cannot be overstated. The trial judge properly gave these consequences significant weight in determining the appropriate disposition. We are satisfied, however, that the trial judge erred in finding that the injuries actually suffered by Jonathon were reasonably foreseeable at the time of the assault. The evidence of the experts suggests that the tragic consequences were far from foreseeable.

[25] We are also satisfied that the trial judge erred in principle in failing to give sufficient weight to the circumstances surrounding the assault. On his findings, the confrontation between the appellants and Jonathon was precipitated by the appellants’ reasonable and genuine belief that Jonathon was responsible for the disgusting racial graffiti which was appearing in the neighbourhood. Also on his findings, the appellants did not seek out Jonathon intending to assault him. The violence which occurred at the time of the confrontation was spontaneous and very brief. The facts of this case, while no doubt serious, are clearly less serious than those outlined in R. v. R. R. O., [1997] O.J. No. 341, where this court upheld the disposition of one year secure custody for aggravated assault.

[26] Having found that the trial judge erred in principle, it falls to this court to determine the appropriate disposition. Despite R.B.’s positive antecedence and his favourable prospects, we are satisfied that a significant period of secure custody is required to adequately reflect the seriousness of this offence. In deciding the appropriate length of the sentence, we have considered the evidence before the trial judge and the evidence tendered on appeal. The evidence tendered on appeal indicates that the appellant has been under a form of house arrest since July 1999 when he was arrested on these charges. He has been on bail pending appeal on very strict terms including house arrest since March 2001. This appeal should have been heard long ago. Crown counsel candidly acknowledged that the delay in perfecting the appeal could in no way be attributed to R.B. or his counsel. The fresh evidence also indicates that the offence and its aftermath have had extraordinary adverse ramifications for R.B. and the rest of his family. R.B. is now twenty years old. It is fair to say that he is far removed from the young man who committed this heinous offence.

[27] Giving this difficult problem our best consideration, we are satisfied that a sentence of 6 months secure custody followed by probation for 1 year on the terms set by the trial judge is an appropriate disposition. Any time spent in custody up to now will count towards that 6 month sentence.

[28] The appeal from disposition is allowed and the sentence is varied as indicated above.

RELEASED: January 30, 2003 (“JCM”)

“Doherty J.A.”

“Austin J.A.”

“J. C. MacPherson J.A.”