COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wobbes, 2008 ONCA 567

DATE: 20080729

DOCKET: C45728

MacFARLAND, ROULEAU and EPSTEIN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

ZACHARY WOBBES

Appellant

Mark Halfyard for the appellant

Joanne Stuart for the respondent

Heard: March 19, 2008

On appeal from the conviction, dated January 31, 2006, and sentence, dated March 10, 2006, of Justice T.D. Marshall of the Superior Court of Justice.

EPSTEIN J.A.:

A. OVERVIEW

[1] After a trial before a judge without a jury, the appellant was convicted as a party to the offence of sexual assault with a weapon (a bottle). He was sentenced to twenty-six months imprisonment, which was reduced to a reformatory term of two years less a day because of pre-trial custody. He appeals his conviction and sentence.

[2] The charge arose out of an assault that occurred at the appellant’s parents’ home in the early morning of June 11, 2004. The evidence established that while the appellant kissed and fondled the victim, S.K., on the appellant’s bed, two other young men removed S.K.’s underwear and penetrated her vagina, first digitally and then with two bottles. This horrific assault stopped when S.K. was able to move away when the two other men began to shave her pubic hair with an electric shaver.

[3] The trial judge convicted the appellant after finding that he was satisfied beyond a reasonable doubt that the appellant engaged in sexual activity with S.K., without her consent, in concert with the other two men who were the principal offenders.

[4] Counsel for the appellant argued two grounds of appeal:

i) The trial judge erred in law in failing to discuss the defence of intoxication; and

ii) The trial judge erred in applying a different level of scrutiny to the Crown evidence than to the defence evidence.

[5] For the reasons that follow I would dismiss the appeal as to conviction, on both grounds.

B. THE EVIDENCE

(i) The Events of the Early Morning of June 11, 2004.

[6] June 10, 2004 was the appellant’s nineteenth birthday. A party was held at his parent’s home in Hagersville. The party goers, mostly high school students, ranged in age from fifteen to nineteen. Drinking was heavy. Marijuana was consumed.

[7] As the night wore on the numbers thinned and the party gravitated to the appellant’s bedroom.

[8] S.K. arrived at the party around 11:00 p.m. Almost immediately, the appellant supplied her with a number of strong drinks. She consumed these drinks over the course of a few hours.

[9] At some point in the early morning hours of June 11, 2004, S.K. and the appellant started kissing heavily on the appellant’s bed. S.K. lay across the width of the appellant’s bed with her legs dangling over the edge. The appellant lay lengthwise on the bed more or less on top of S.K. There, in the room with several other young men present, the appellant kissed and fondled S.K. for some time.

[10] It was then that the sexual assault with the bottles took place. While the appellant kissed and fondled S.K., two young men, J.H. and D.F. (young offenders) began to “take their liberties” with S.K. After they removed her underwear, they penetrated her digitally and then with a beer bottle. Not satisfied, they began to use a larger bottle. Around this point, another party goer, who had just entered the room, witnessed S.K. saying “stop”. He told the appellant and the other two young men to stop.

[11] After this good samaritan left the room, the assault continued. The abuse did not end until J.H. brought in a pair of hair clippers and started to shave S.K.’s pubic hair. At this point, S.K., who had repeatedly asked that they stop, was able to move away and the sexual activity stopped.

[12] Around the start of the sexual activity, S.K. had blacked out. Her last recollection was sitting on the appellant’s bed with another party goer. Her next memory was waking up the following morning on the couch in the appellant’s room. She was wearing the appellant’s basketball shorts and was covered in vomit. She observed hickeys on her neck, chest and breasts. Some of her pubic hair had been shaved, and she experienced a tender feeling inside her vagina. She testified, “It felt like someone had intercourse with me, and I didn’t know who”.

[13] She asked the appellant what happened, and he said he did not know.

[14] S.K.’s aunt picked her up and took her to the hospital where she had a complete examination.

[15] Over time, S.K. recalled a small portion of the evening’s events. She remembered that at some point during the activity on the bed she tried to move her left hand down past her waist but that she felt weak, as if she could not do anything. She also remembered crying and saying “No”. She further remembered the appellant saying, “I don’t give a fuck and I don’t give a shit.” She did not know what the appellant’s comment related to, but it seemed to S.K. to correspond to the point in time when she vomited.

(ii) The Evidence Relevant to the Appellant’s Level of Intoxication

[16] The evidence clearly established that alcohol and drugs were readily available at the party. The appellant had a lot of beer and hard liquor in his bedroom, party goers brought additional alcohol, the appellant’s mother supplied “Jell-O shooters”, and marijuana was present. But what was the evidence as to the appellant’s actual state of intoxication? A number of people testified about this issue.

[17] First, Shawn Hill, a friend of the appellant’s, arrived at the birthday party at about 10:00 p.m., and after sitting around for an hour and a half, he consumed four shots, a couple of beers, and two marijuana joints in forty-five minutes. As an indication of how Hill assessed individuals’ degree of intoxication, on a scale of one to ten with ten being “falling down drunk”, “completely out of it” and “passed out drunk”, Hill estimated his own level of intoxication as a six – or “just feeling drunkenness”.

[18] Hill testified that the appellant drank a great deal of alcohol and smoked some marijuana. Hill placed the appellant at a nine on the ten-point scale in terms of level of intoxication; in contrast to S.K., to whom Hill gave an eight or nine out of ten.

[19] Second, Levi Opheim, a long time friend of the appellant’s, testified that the appellant was drinking throughout the night and that he was slurring his words, very sloppy and zoned – “very drunk”.

[20] Third, the evidence of Terry Wood, another friend of the appellant’s, was that the appellant was “drunk”.

[21] Finally, various individuals, including S.K., testified that the appellant was too drunk to remember what occurred on the night of the assault.

C. THE REASONS FOR JUDGMENT

[22] In judge alone trials, the reasons for judgment often become the focus of the appeal. This is no exception.

[23] The trial judge, after a detailed review of the evidence and an analysis that involved assessing the credibility of the witnesses, summarized his findings concerning the appellant’s involvement in the assault as follows:

I accept, and find it as a fact, that Mr. Wobbes was aware of and condoned, even took part in, the common enterprise of fondling Ms. “X”. He was aware of the bottles being used, I find. He was aware that she said stop repeatedly, and he did not stop but continued to fondle or grope her with the other boys.

In the court’s view, he had to know and see what the others were doing to her body. He was but inches away and busy fondling her himself. It defies all logic and reason to think otherwise. I find as a fact, that he was aware of and took an active part in the fondling that took place over the young woman’s body, and that he did not stop when repeatedly told by Ms. “X” to do so. As well, I am satisfied that the three boys intended to fondle and abuse Ms. “X” together. Mr. Wobbes, I find as a fact, aided and abetted in, by distracting Ms. “X” knowing this would assist his friends in also abusing her lower body.

[24] After making these findings of fact, the trial judge turned to the issue of whether the appellant was a party to the offence of sexual assault with a weapon, as provided in s. 272(1)(d) of the Criminal Code, R.S.C. 1985, c. C-46. He found that there was a sexual assault with a weapon by J.H. and D.F., and that S.K. did not consent both because she was incapable of doing so and because even if she had initially agreed to the activities, her repeated requests to stop demonstrated a lack of agreement to continue: see s. 273.1(2)(b) and (e) of the Criminal Code. As well, he found that because the appellant “heard and saw” S.K.’s refusals and because the appellant’s intoxication was self-induced, there was no mistaken belief in consent: see s. 273.2(a)(i) of the Criminal Code.

[25] The trial judge then turned to the question of whether the “party” element of the offence had been met. Using s. 21 of the Criminal Code as a reference, the trial judge found:

I am satisfied that Mr. Wobbes continued his groping in concert with the other two perpetrators to help them continue with their assault with bottles and eventually clippers. His position, activities and common banter amongst the boys in the room, in my view, can lead to no other logical or sensible conclusion.

[26] The trial judge referred to the appellant’s level of intoxication in dealing with the defence of mistaken belief in consent: however, he made no specific reference to the evidence of the appellant’s level of intoxication in his analysis of the mens rea requirement for a party offence.

[27] This observation takes me to the first and major issue upon which the appellant relies in this appeal.

D. ANALYSIS

(i) The trial judge erred in law in failing to discuss the defence of intoxication

[28] To convict an individual for the offence of being a party to a sexual assault with a weapon, the Crown must prove beyond a reasonable doubt that the accused formed the specific intent to assist the principal actors in the commission of the offence.

[29] The authorities make it clear that it is not sufficient that the accused’s actions had the effect of aiding the commission of the offence. The appellant must have acted for that specific purpose: see R. v. Barr (1975), 1975 1253 (ON CA), 23 C.C.C. (2d) 116 (Ont. C.A.) and R. v. P.(K.) (2007), 2007 ONCA 486, 222 C.C.C. (3d) 528 (Ont. C.A.). As well, mere awareness of and presence at the scene of an offence does not establish the requisite intent: see R. v. Dunlop and Sylvester (1979), 1979 20 (SCC), 47 C.C.C. (2d) 93 (S.C.C.).

[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 another’s 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: see R. v. Fraser (1984), 1984 643 (BC CA), 13 C.C.C. (3d) 292 (B.C.C.A.).

[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: see R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.) at paras. 53-54 and 65.

[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. If the evidence only indicates that the appellant was mildly intoxicated, such that his inhibitions were lowered, there is no air of reality to the defence: see R. v. Daley (2007), 2007 SCC 53, 226 C.C.C. (3d) 1 (S.C.C.) at para. 41.

[33] On the one hand, the appellant submits that there was considerable evidence about his substantial consumption of drugs and alcohol and the effect it had on him. Accordingly, he argues that the trial judge erred in failing to consider this evidence and decide whether drunkenness provided a defence to the charge by reason of its raising a reasonable doubt as to whether he formed the specific intent necessary for the charge.

[34] On the other hand, the Crown concedes that the appellant was drunk but submits that there was no specific evidence on how much he drank, and there was insufficient evidence to prove the appellant passed the evidentiary threshold from mild to advanced intoxication. Thus, there was no air of reality to the defence of intoxication.

[35] Given the parties’ positions, I must first decide whether there was an air of reality to the defence of intoxication. In my view there was.

[36] It is undisputed that the appellant was drunk at the time in question. The trial judge refers to the appellant as being “intoxicated”. This finding was amply supported by the evidence. As outlined above, there was testimony that the appellant was, in fact, in a state of advanced intoxication.

[37] Ultimately, the appellant’s intoxication defence would only be successful if the trial judge found that the appellant’s degree of intoxication was sufficient to raise a reasonable doubt as to whether he acted for the purpose of assisting J.H. and D.F. in sexually assaulting S.K. with the bottles. Nonetheless, because the defence had an air of reality, the trial judge was obliged to consider the evidence relating to the appellant’s intoxication and evaluate the extent to which it affected his mental state: see Cinous, supra, at para. 55.

[38] The Crown submits, however, that even if the defence of intoxication had an air of reality, the trial judge did not err in failing to address it because the defence of intoxication was not raised at trial. The Crown contends that this was for a tactical reason as advancing that defence would have undermined the defence of consent. I do not accept this submission.

[39] Defence counsel’s decision not to raise a defence at trial is not determinative of a trial judge’s obligation to consider all defences with an air of reality. Defence counsel is free to tailor strategically his or her arguments; however, the trial judge must still consider any viable defence: see R. v. Murray (1994), 1994 1692 (ON CA), 93 C.C.C. (3d) 70 at 86 (Ont. C.A.).

[40] One exception to this rule is that it has no application where one defence that the accused sets up negates the alternative defence. See: R. v. Wu (1934), 1934 28 (SCC), 62 C.C.C. 90 at 97. This is the implication inherent in the Crown’s submission on this point.

[41] I do not view the two defences as being in conflict. Rather, they are parallel defences open to the appellant. One defence relates to the issue of consent and involves an analysis of the affects of alcohol consumption on S.K.’s capacity to consent to the appellant’s sexual advances and on the appellant’s belief that S.K. did, in fact, consent. The other defence relates to the mens rea necessary for the offence with which the appellant was charged and involves an analysis of his level of intoxication and its impact on his being able to form the specific intent to be a party to the offence of sexual assault with a weapon.

[42] The Crown further submits that in the event the defence of intoxication was a viable defence, it was open to the trial judge to reject it on the basis of the conclusion that it did not raise a reasonable doubt having regard to the nature of the evidence about the appellant’s level of intoxication and to the lack of evidence of how much drugs and alcohol he actually consumed.

[43] That is undoubtedly true. But, if such were the case, it was incumbent on the trial judge to make it clear that he identified that the defence of drunkenness was a potential defence, that he considered and rejected it, and the basis upon which he did so.

[44] In R. v. Davis (1999), 1999 638 (SCC), 139 C.C.C. (3d) 193 (S.C.C.), Lamer C.J.C. identified the problem that arises if trial judges do not provide reasons with respect to a defence that has an air of reality. In such cases, the reviewing court may infer either that the trial judge considered a defence but did not discuss it because it did not raise a reasonable doubt, or that the trial judge failed to consider a defence.

[45] In Davis, the appeal was disposed of on the grounds that there was no air of reality to the defence in issue. The court therefore left to “another day” the question of whether a trial judge’s complete silence as regards a defence raised by the evidence constitutes a failure to consider it and therefore an error of law: see para 79.

[46] Davis was decided before the Supreme Court of Canada had the opportunity to comment extensively on trial judges’ obligations to give reasons in R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 and R. v. Braich (2002), 2002 SCC 27, 162 C.C.C. (3d) 324. In these cases, the Court identified one basis for the need for trial reasons as being the importance of meaningful appellate review. As Binnie J. held at para. 24-25 and 46 of Sheppard:

[T]he requirement of reasons is tied to their purpose and the purpose varies with the context.… In that context [the appeal], the purpose, in my view, is to preserve and enhance meaningful appellate review of the correctness of the decision (which embraces both errors of law and palpable overriding errors of fact). If deficiencies in the reasons do not, in a particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention.

[W]here there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal.… In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error in law and justify appellate intervention.

[47] As Doherty J.A. explained in R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), Sheppard and Braich introduced a new genre of argument based on inadequacies in trial judges’ reasons. On this new argument, inadequacies in reasons are sufficient to justify reversal in their own right without inferring any underlying legal error from those inadequacies and without finding that the verdict is unreasonable, provided meaningful appellate review is foreclosed. In other words, the absence of reasons or seriously inadequate reasons can constitute a freestanding error of law, which justifies quashing a verdict.

[48] However, a failure to give adequate reasons does not automatically amount to reversible error. It is clear from Sheppard that the conclusion as to whether the inadequacy of the reasons amounts to an error of law is based on a functional test, considered in the context of the specific case. If, taken contextually, it can be said that the inadequacy in the reasons deprives the appellant of the opportunity to have the trial verdict properly understood and therefore scrutinized, then the deficiency may justify appellate intervention. As one example, the Court stated at para. 46:

[W]here … there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal.

[49] This segues to the core of the appellant’s argument on this ground of appeal. The trial judge’s lack of reasoning with respect to the defence of intoxication suggests either that the trial judge did not consider the defence or that he considered it and found that it did not raise a reasonable doubt. The former scenario would constitute reversible error because a trial judge must consider any defence with an air of reality. It follows that the inability to distinguish between the two scenarios because of the lack of reasons puts this court in the position of being unable to given effect to the appellant’s right of appeal.

[50] The question is, therefore, whether the trial judge’s reasons relating to the defence of intoxication allow the verdict to be properly understood and therefore scrutinized.

[51] The answer is found in the paragraph in the decision referred to in paragraph 25 above. After the trial judge expressed his conclusion that the appellant continued groping S.K. to help the other two perpetrators in their assault with the beer bottles and ultimately the clippers, he went on to hold that the appellant, as well as the others, had the intention to go further with the groping, including with the bottles. Immediately after making these findings the trial judge referenced the case of Fraser, supra.

[52] In Fraser, the British Columbia Court of Appeal was dealing with the defence of drunkenness in relation to the accused’s having been charged with being a party to the offence of robbery. The court held that drunkenness is a defence to a charge of being a party to an offence under s. 21(1)(b) or (c) of the Criminal Code. The Court explained that “[B]efore a person can be reasonably said to have abetted another in the commission of an offence, he must know or understand what he is abetting even though he might not know or understand that it is an offence, and on the basis of this knowledge or understanding must decide whether to abet the other person’s actions. From a practical point of view, I think that drunkenness would be a defence under s. 21(1)(c) only if a person were so intoxicated as to be incapable of any understanding of the actions and the purpose of the principal, but, ultimately, this must be a concern of the trier of facts, having regard to the nature of the offence and the circumstances.”

[53] The trial judge’s reference to the decision in Fraser makes it clear that he was aware of the defence of intoxication to the specific intent aspect of the mens rea associated with being charged as a party to an offence. The trial judge’s consideration of the defence of intoxication may have been more fully developed in his reasons. However, I note that he did not have the benefit of argument on this issue as the defence of intoxication in relation to the mens rea element of the offence of being a party to sexual assault with a weapon was not advanced. Secondly, all that I have to do is conclude that the trial judge did not overlook the defence and that it was open to the trial judge to reject it. His reference to Fraser and the context of that reference leads me to that conclusion.

[54] On the trial judge’s reason, the appellant knew why he was convicted. I would therefore dismiss the appeal on this ground.

(ii) The trial judge erred in applying a different level of scrutiny to the Crown evidence than to the defence evidence

[55] The appellant further submits that the trial judge subjected the defence evidence to greater scrutiny and criticism than he did the Crown’s evidence.

[56] While counsel for the appellant fairly submits that some of the trial judge’s scepticism of the defence witnesses’ testimony was warranted, he cites examples that he says demonstrate a bias towards the Crown’s case.

[57] Some of the examples the appellant relies upon include that the trial judge:

i) accepted the evidence of Opheim and Hill without any analysis;

ii) accepted, once again without analysis, every piece of evidence adverse to the defence, regardless of its source and regardless of whether there was conflicting evidence on the point, even from Crown witnesses; and

iii) rejected Wood’s evidence based on illogical and erroneous reasoning.

[58] I disagree with these criticisms of the trial judge’s reasoning. His thorough reasons, read as a whole, demonstrate that he carefully and objectively examined the evidence of all of the witnesses.

[59] For example, in certain respects, there was a conflict between the evidence of Opheim and Hill and that of D.F. and J.H.. In the face of this conflict the trial judge observed that, at trial, the co-accused denied facts that they earlier agreed to in the context of their guilty pleas. Specifically, D.F. denied any participation in the assault until he finally admitted to having removed the complainant’s underwear. J.H. gave evidence that suggested that the complainant effectively consented to the activity in issue. The trial judge was entitled to take these serious contradictions into account in his assessment of the co-accuseds’ evidence and ultimately in his decision to prefer the evidence of Opheim and Hill.

[60] With respect to Wood’s evidence, in addition to the benefits the trial judge had in observing and listening to the various witnesses who testified as to what took place at the appellant’s birthday party, he assessed Wood’s evidence against the backdrop of his evidence that he did not see anything wrong with what transpired in the bedroom on the basis that “group sex is not illegal” and on the basis of internal inconsistencies in his testimony.

[61] There was nothing illogical or erroneous in the trial judge’s adverse finding of credibility in relation to Wood.

[62] With respect to the remainder of the concerns upon which the appellant relies in relation to the trial judge’s evaluation of the evidence, some areas upon which the appellant relies are not material (such as whether and when the bedroom door was open or closed and/or locked at any given time) and in other aspects (such as whether the appellant fondled S.K. when J.H. left the bedroom to get the clippers) the evidence varied, as it frequently does, depending on the perspective of the witness who was able to give evidence on the point.

[63] I am not persuaded that the trial judge improperly discounted defence evidence or held the appellant to a different standard than that of the Crown’s evidence. I would therefore not give effect to this ground of appeal.

E. CONCLUSION REGARDING CONVICTION APPEAL

[64] The trial judge’s reasons allowed for effecting appellate review. His reasons permitted this court to assure itself that the trial judge had properly apprehended the relevant evidence, applied the proper legal principles to that evidence, particularly the mens rea aspect of the charge, made findings of credibility that were available to him on the evidence, and ultimately reached a verdict based on the evidence and the application of the relevant legal principles to that evidence.

[65] I would therefore dismiss the appeal as to conviction.

F. SENTENCE

[66] The appellant applies for leave to appeal from his sentence. If leave is granted, he seeks to have his sentence reduced and converted to a conditional sentence. The appellant submits that, the application of proper sentencing principles to the facts of this case and taking into consideration the principle of parity, a conditional sentence of 12 to 18 months is appropriate.

[67] I start by expressing my view that the sentence is fit having regard to the principles of sentencing and their application to the circumstances of the offence and the offender.

[68] I need not repeat the circumstances of this horrific assault.

[69] Turning to the offender, the sentencing judge properly took into consideration a number of mitigating factors. The appellant is a 23 year old first offender. The evidence called at the sentencing hearing demonstrated that he enjoyed a reputation of being caring, loyal and coming from a supportive family.

[70] I add here that the fresh evidence submitted to this court for the purpose of the sentencing appeal demonstrates that the appellant has, since the time of the assault, led what may be called an exemplary life. He has studied full-time at the Niagara College of Canada, obtained employment, volunteered at his church, and assisted his grandmother who has serious medical problems.

[71] The sentencing judge properly considered the circumstances of the offence and the offender in light of appropriate sentencing principles. True, the personal circumstances of the appellant, then and now paint a positive picture. He is to be commended for the steps he has taken to move on with his life in a law abiding and productive manner. However, the circumstances of the offence – the public degradation of a young woman unable to defend herself – are serious.

[72] The basis of the parity argument is the fact that each of the co-accused received a non-custodial sentence of 18 months.

[73] The primary difficulty the appellant faces in relying on the parity argument is that the co-accused were young offenders sentenced under the regime established under the Youth Criminal Justice Act S.C. 2002, c.1 (“YCJA”) – a regime completely different from that established under the Criminal Code. Most notably the sentencing principles of general deterrence found in s. 718(1)(a) of the Criminal Code are not applicable under the YCJA. Furthermore, the YCJA places mandatory restrictions on the use of custodial sentences.

[74] In addition to the impact of the operation of these two distinct regimes on the disparity between the sentences of the appellant and his co-accused, another factor that explains the difference between the sentences is the fact that the co-accused pled guilty and they were therefore entitled to rely upon that important mitigating factor.

[75] I see no basis on which to interfere with the sentence. It is within the range for similar offences and reveals no error in principle.

[76] Accordingly, leave to appeal sentence is granted and the appeal is dismissed.

G. DISPOSITION

[77] In summary, I would dismiss the conviction appeal, grant leave to appeal the sentence and dismiss the sentence appeal.

RELEASED:

“PR” “G. Epstein J.A.”

“JUL 29 2008” “I agree J. MacFarland J.A.”

“I agree Paul Rouleau J.A.”