Court of Appeal for Ontario

Citation: R. v. Robson, 2008 ONCA 153 Date: 2008-02-29 Docket: C44697

Between: Her Majesty the Queen (Respondent) and Wayne Robson (Appellant)

Before: Gillese, Armstrong and Blair JJ.A.

Counsel: T.E. Breen for the appellant C. Jane Arnup for the respondent

Heard: February 26, 2008

On appeal from the conviction entered by Justice Casimir N. Herold of the Superior Court of Justice dated September 20, 2005.

ENDORSEMENT

[1] This is an appeal from a conviction for the first degree murder of Pearl Pettitt.

[2] At trial, this case was simple and straightforward. The appellant admitted causing Ms. Pettitt’s death and sexually assaulting her, although he asserted that he could recall neither event as the result of an alcohol induced blackout. His trial counsel conceded that the appellant was guilty of manslaughter and sexual assault.

[3] The only real issue at trial was whether the appellant had the intent required for murder. The theory of the defence was that the Crown had failed to meet its burden on intent either as the result of the appellant’s alleged intoxication and/or because the nature of the bodily harm caused by the appellant was not such that one should infer from it that he knew it was likely to cause death.

[4] On appeal, the appellant alleges that the trial judge erred in:

(1) instructing the jury on the “common sense inference” because death, as caused, could not have been a natural or probable consequence of his actions; and

(2) his instructions on intoxication.

The Common Sense Inference

[5] The court did not call on the Crown to respond to the first ground of appeal.

[6] We reject the argument that, in the circumstances of this case, it was an error to include the common sense inference instruction in the charge. It is worth noting that in the pre-charge conference, experienced defence counsel had the opportunity to review and comment on two written drafts of the key aspects of the proposed charge. Defence counsel did not object to the permissive inference being left with the jury. He did ask that certain changes be made. The trial judge accepted those submissions and incorporated the requested changes into the charge. Further, defence counsel conceded that the Crown did not have to prove that the appellant foresaw the specific mechanism of death (i.e. aspiration by vomit) only that he had to foresee the likelihood of death as a result of the bodily harm he caused.

[7] At the time of the events in question, the appellant was 19 years old. He was a labourer and in good physical condition. He was 50 years younger than Ms. Pettitt, a petite, elderly woman in poor health. The appellant beat Ms. Pettitt about the head. She died as result of the injuries he caused, as he admitted when he acknowledged that causation was not an issue.

[8] Although the pathologist said that listing aspiration as the sole cause of death was something that he had never done before, he repeatedly testified that the reason Ms. Pettitt aspirated her stomach contents was the blunt force trauma that the appellant had inflicted on her. What he called the “terminal event” (aspirating vomit) took place as a consequence of her reduced state of consciousness, which caused her gag reflex to fail. The head injuries she received during this attack caused the reduced consciousness. While the pathologist thought that the head injuries also caused her to vomit, he agreed with defence counsel’s suggestion that revulsion and anxiety caused by the attack may have contributed to her vomiting.

[9] In the charge, the trial judge reminded the jury that the pathologist testified that aspiration of vomit is seldom the sole cause of death in a homicide. He also reminded the jury of the competing inferences that the parties said arose on the evidence.

[10] In the circumstances, we do not accept that because the appellant might not have been able to foresee specifically how Ms. Pettitt would die, her death could not be a likely consequence of his acts. It was an inference that the jury could draw and was properly placed before them.

[11] For these reasons, we dismiss this ground of appeal.

INTOXICATION

[12] The appellant’s chief argument on intoxication is that the language used by the trial judge placed an onus on the defence to establish that the appellant was intoxicated. In making this argument, he relies primarily on the following line (from p. 126) of the charge:

If, however, after considering all of the evidence, you find that Mr. Robson was intoxicated you will ask yourselves what effect, if any, that had on whether he in fact formed the intent required by the Criminal Code.

[13] We do not agree. When the charge is read as a whole, we see no reasonable possibility that the jury could have understood that there was an onus on the appellant to prove intoxication.

[14] The trial judge repeatedly advised the jury that the burden was on the Crown beyond a reasonable doubt, that the appellant “does not have to prove that he is not guilty of the crimes with which he is charged”, and that the appellant “need prove nothing in this case”. The trial judge also repeatedly told the jury that it was for the Crown to prove intention beyond a reasonable doubt, and that the Crown bore the burden of proof throughout the case. He gave a faultless W.(D.) instruction.

[15] Moreover, the instruction on intoxication is very similar to that which the Supreme Court of Canada recently held to be appropriate in R. v. Daley, [2007] S.C.R. 53.

[16] The instruction on intoxication differs from that in R. v. Kennedy [1987] O.J. 1135 (C.A.). In Kennedy, the trial judge neglected to instruct the jury about the impact that intoxication might have on intent. That error was not made in the present case. In this case, the trial judge clearly instructed the jury to consider the issue of the appellant’s alleged intoxication and to find to what extent, if at all, it impacted on the appellant. The jury was then instructed to ask themselves whether that impact assisted in deciding whether the appellant meant to cause Pearl Pettitt’s death or whether he meant to cause her bodily harm that he knew was likely to cause her death and was reckless whether death ensured. In examining the question whether he knew that bodily harm was likely to cause her death, the jury was reminded to bear in mind defence counsel’s closing submissions on the pathologist’s evidence as to the actual cause of death. He then summarised that evidence.

[17] Finally, we would again note that experienced defence counsel at trial raised no objection in the pre-charge conference nor following the charge on this point.

[18] Accordingly, we would dismiss this ground of appeal.

DISPOSITION

[19] The appeal is dismissed.

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”