



COURT OF
APPEAL FOR BRITISH COLUMBIA




Citation:



R. v.
  W.K.C.,









2005 BCCA 19




Date: 20050106





Docket: CA031675

Between:

Regina

Respondent



And

W.K.C.

(Y.C.J.A.)

Appellant














Before:



The Honourable Mr.
  Justice Donald





The Honourable Madam
  Justice Levine





The Honourable Mr.
  Justice Smith




Oral Reasons for Judgment




C.D. Sicotte



Counsel for the Appellant





V.C. Toselli



Counsel for the Respondent





Place and Date:



Vancouver, British Columbia





January 6, 2005








[1]

SMITH J.A.:
On January 30, 2004, the appellant was
convicted by the Honourable Judge Lytwyn of aggravated assault following a
trial in the Provincial Court.  He appeals from that conviction and seeks
either an acquittal or a new trial.

[2]

The appellant, along
with two others, D.P. and J.H., all young persons within the meaning of the
Youth
Criminal Justice Act
, were charged as follows:

Count 1

[D.P.], [W.K.C.] and [J.H.], on or about the 26
th
day of September, 2003, at or near Surrey, in the
Province of British Columbia, did commit robbery of Gurjant Singh SIDHU,
contrary to Section 344(b)

Count 2

[D.P.], [W.K.C.] and [J.H.], on or about the 26
th
day of September, 2003, at or near Surrey, in the
Province of British Columbia, did commit aggravated assault of Gurjant Singh
SIDHU, contrary to Section 268(2) of the Criminal Code.

[3]

The appellant was 14
years old at the material time.

[4]

The appellant's
co-accused were dealt with separately.  D.P. pleaded guilty to aggravated
assault and J.H. pleaded guilty to common assault.  Neither of them testified
at the appellant's trial.  Nor did the victim, Mr. Sidhu.  He was unable to
attend because of the injuries he suffered in the assault.

[5]

At the close of the
Crowns case, Crown counsel directed a stay of proceedings on the robbery
count, Count 1.

[6]

After observing that
the circumstances were both "tragic and senseless", the trial judge
summarized the relevant events and the consequences for Mr. Sidhu.  She said:

[1]        ... Sidhu is a 45 year old Indo-Canadian male.  Around 8:30
p.m. on September 26, 2003, a Delta Police Officer spoke with Sidhu at the
Scottsdale Mall.  Sidhu had been drinking but was not intoxicated.  The Police
Officer directed Sidhu to go home and watched him walk eastbound into Surrey. 
Unfortunately, he never made it home.

[2]        On 124th Street and 98th Avenue in Surrey, Sidhu encountered
a group of youths and was pushed to the ground, kicked and left unconscious. 
At 10:50 p.m., Brian Ayre who lives near this intersection was disturbed by a
bang at his front door.  When he looked out, he saw feet and a body lying on
the ground.  Ayre called the RCMP who found Sidhu, lying on his back,
unresponsive, bleeding from his nose and wheezing when breathing.

[3]        Sidhu had suffered a severe beating.  He had a closed head
injury and initially was in a prolonged coma with no spontaneous eye or limb
movement.  He had multiple facial fractures, right rib fractures, and a
collapsed lung.

[4]        Sidhu has improved but has suffered a serious head injury
that will leave with him with a significant long-term disability.  Dr. Willms,
the head of the Hospitalist Physician Program at Surrey Memorial Hospital saw
Sidhu at Surrey Memorial on October 27, 2003.  Sidhu could answer simple 'yes'
or 'no' questions but was not oriented as to time or place.  He could move
himself about the bed but could not sit unaided.  He needed assistance with all
aspects of daily living and needed to be fed.  He was incontinent and needed to
be placed in restraints at night to prevent falls out of bed and further
injury.

[5]        Sidhu's condition has not significantly changed since
October 2003.  He remains at Surrey Memorial Hospital with an uncertain
future.  He cannot yet be moved to a long term care facility, the next step in
any rehabilitation plan.  The prospect of full recovery and independent living
is remote and any recovery will likely be slow.

[6]        What happened at the corner of 98th and 124th Street is not
in dispute although W.K.C.'s role in the events is.  Sidhu was pushed to the
ground, and then for no reason, viciously and senselessly, kicked by a number
of youths.  What is also unsettling is the presence of a number of other youths
in the area.  Only one took some steps to stop the beating and no one
telephoned the police or called an ambulance.  Why is uncertain  alcohol,
immaturity, fear of peer disdain, the inability to appreciate the gravity of
the events or some other unknown factor.

[7]

The appellant's role in
the events was in issue because, although he admitted to being present while
Mr. Sidhu was assaulted, he denied that he took part in the attack.  On the
other hand, one witness testified that she observed the appellant push Mr.
Sidhu to the ground and subsequently kick him and another testified that he saw
the appellant kicking Mr. Sidhu while he lay on the ground.  A third testified
that the appellant admitted his participation in the beating and bragged about
it.  Thus, as the trial judge noted, the central issue was credibility.

[8]

The Crown called some
members of the large group of young teenagers of which the appellant was a
part, although it did not call all.  The trial judge observed that many of the
witnesses, including the appellant, had been drinking heavily and that
recollection was a problem.  She commented that the recollection of the Crown
witnesses was varied.  She noted, as well, that each witness had opportunity to
discuss his or her evidence with others before being interviewed by the police
and that the possibility of reconstruction was a concern.

[9]

She set the stage as
follows:

[8]        All the witnesses confirmed the events of the early evening
of September 26.  A number of youths including W.K.C., D.P. J.H. met at D.B.'s
house.  They obtained some hard liquor and began to drink.  Throughout the
evening, this group moved to different locations but continued drinking. 
First, they went to Moffatt Park where they met others including B.A., D.H.,
J.S. Roger and Ravi.  They, then, went to a birthday party staying until it was
ended because too many teens had shown up.  Rather than breaking up, the group
moved to Prince Charles Elementary School where they hung about drinking more
alcohol.  By this time, many of the youths were quite drunk.  The group then
began to walk up 124th Street towards Cedar Hills Elementary School near 98th
Avenue.  They did not walk together but in smaller groups.  It was at the
corner of 98th Avenue, where some of the youths encountered Sidhu.

[10]

In her reasons, the
trial judge expressed particular reliance on the evidence of two eyewitnesses, B.A.
and J.S., and on the evidence of the appellants foster father, R.C.

[11]

B.A., who was 15 years
old, testified that she was in the second group that walked up the hill.  She
acknowledged that she was drunk and that her recollection was "blurry". 
She was with the appellant, a girlfriend and her boyfriend  the co-accused J.H. 
She said that she saw Mr. Sidhu cross the intersection at 98th Avenue toward
them.  She said words were exchanged, but she could not recall what was said. 
She said the appellant pushed Sidhu to the ground.  She and her friend
continued walking, while the appellant and J.H. remained behind.  She said she
saw both J.H. and the appellant kick Mr. Sidhu while he was on the ground.

[12]

J.S., who was 16 years
old, was in the last group to walk up 124th Street.  J.S. said he saw Sidhu
lying on the ground at the 98
th
Avenue intersection.  He said D.P. was kicking Sidhu in the head and shoulders
and that the appellant was kicking Sidhus legs.  He was not certain how many
people were present.  He said he grabbed D.P. and tried to hold him since it
appeared to him that D.P. was doing the most damage.  His back was turned to
the appellant as he talked to D.P. and he did not see what the appellant was
doing at that time.  He did not see the appellant leave the scene and he could
not remember if the appellant was still there when he finished dealing with D.P. 
He admitted that he was very drunk as well and that he suffers from memory
lapses when he drinks.

[13]

R.C. is the foster
father of both D.P. and the appellant.  He recalled the two of them going out
for the evening at about 5:30 p.m.  In the early morning hours of September 27
th
, one of them telephoned and asked for a
ride home from Surrey.  R.C. refused and went to bed.  He was awakened at about
3:00 a.m. by noise coming from the appellant's bedroom.  He went upstairs and
saw D.P. and the appellant in the bedroom.  Both seemed to be excited and under
the influence of alcohol.  He saw blood on D.P.'s sock and shoes.  As well, he
saw blood on the appellant's shoes.  He recalled a conversation in which one of
them, in an excited manner, discussed a fight.  He recalls D.P. saying, "You
should have seen it.  We kicked the shit out of him" and the appellant
saying, "You should have seen it.  It was awesome.  We stomped him." 
He characterized their statements as "bragging".  The next morning,
the appellant asked him to help to remove "a fair amount of blood"
from the sleeve of the appellant's jacket.  In cross-examination, R.C. conceded
the words he attributed to the appellant and D.P. in the bedroom were not
necessarily the exact words used and that he was not sure what each youth said
specifically.  However, he stated that they both said words to the effect that "we
stomped this guy, it was awesome, you should have seen it".

[14]

The blood on the
appellant's jacket and on both shoes was subsequently identified as Mr. Sidhu's
blood.

[15]

The appellant
testified.  He agreed that he was with B.A. as he walked up 124
th
Street toward 98
th
Avenue.  He said that Sidhu crossed the street toward
them and that he believed Sidhu asked for a cigarette.  He said J.H. punched
Sidhu in the head and pushed him to the ground.  He said B.A. and her
girlfriend walked away but he remained at the scene.  He said that D.P. and
others ran up and D.P. and began to kick Sidhu.  He said J.H. joined them in
kicking Sidhu.  He said D.P. kicked Sidhu in the head, kicked him in the right
ribs, and J.H. kicked him on the left side.  He said he watched and did not get
involved.  He said he told D.P. to stop.  He said J.S. came up from behind and
grabbed D.P., saying "you are going to kill him".  Then, he said, J.S.
kicked Sidhu in the head four or five times.

[16]

The appellant testified
that Sidhu was unresponsive after the beating stopped.  He said D.P. said, "Let's
throw him in the ditch" but he intervened because he did not want Sidhu to
die.  He said he convinced D.P. and J.H. to drag Sidhu to the front of a
house.  He said they left Sidhu lying face up in front of the house.  He said
he knocked on the door and they ran.

[17]

Further, he
acknowledged that he and D.P. spoke to their foster father about the fight
later.  He conceded that D.P. may have said, "We stomped some guy"
but maintained that he acknowledged only his presence and not any personal
involvement.

[18]

The trial judge set out
her analysis of the appellant's credibility in her reasons.  While she accepted
the appellant's evidence on some points, she rejected it on the material
issues.  In doing so, she accepted the evidence of R.C. as to the appellant's
demeanour and excitement during their conversation in the bedroom.  She also accepted
his evidence that the appellant effectively admitted his joint participation in
the assault.

[19]

Further, she relied on
the evidence of B.A. and J.S.  She said:

[29]       Of the Crown witnesses, B.A. and J.S. are the most
significant.  They both testified that they saw W.K.C. involved but at
different points in the beating so their evidence cannot be said to have been
tainted by each other.  They do not parrot one another but give evidence of
different stages of the beating.  They do not attend the same school so the
possibility of contamination is more remote.  Despite their alcohol
consumption, I am satisfied that neither witness endeavoured to over-state
W.K.C.'s involvement and accept their evidence.

[20]

The appellant submits
that the trial judge misapplied the test for credibility, misapprehended the
evidence, and did not give adequate reasons.

[21]

First, he says that she
failed to analyze the evidence of B.A. and J.S. with the same vigour that she
analyzed that of the appellant and that, if she had, she would have found their
evidence unreliable.  I cannot agree.

[22]

Trial judges are
presumed to know the law and are deemed to apply the law correctly in the
absence of some demonstrable error.  A trial judge does not err simply because
he or she does not give reasons for deciding problematic points, does not
demonstrate a consideration of all aspects of the evidence, or does not explain
why he or she does not entertain a reasonable doubt.  In that regard, see
R.
v. Burns
, [1994] 1 S.C.R. 656 at 664.  In exceptional cases, such as
R.
v. R.(D.)
(1996), 107 C.C.C. (3d) 289 (S.C.C.), and
R. v. Horton
(1999), 133 C.C.C. (3d) 340 (B.C.C.A.), to which the appellant referred, it may
be an error of law to fail to resolve troublesome issues arising out of bizarre
and confusing evidence, but this is not such a case.  This case turns entirely
on its facts and involves an ordinary assessment of the credibility of the
appellant and other witnesses.  There is nothing highly unusual or troublesome
involved.

[23]

The appellant next complains
that the trial judges simple assertion that she accepted the evidence of B.A.
and J.S. fails to meet the minimum standard for reasons, which is set out in
R.
v. Sheppard
(2002), 162 C.C.C. (3d) 298 (S.C.C.).  He contends that,
since it is clear that she did not accept everything said by these witnesses,
he cannot ascertain what particular evidence of the witnesses was accepted by
the trial judge.

[24]

I would reject that
submission.  It is clear from para. 29 of the reasons, which I have already reproduced,
that the evidence she accepted was the evidence that the appellant was observed
by these witnesses to be participating in the assault.  These reasons, read together
with the record, meet the functional test for reasons enunciated in
R. v.
Sheppard
.

[25]

The appellant
identifies a number of inconsistencies and anomalies in the evidence of B.A.
and J.S. and the trial judge's treatment of it.  However, they relate almost
entirely to peripheral matters.

[26]

It is true that the
trial judge misapprehended the evidence in some instances, but these
misapprehensions were on matters of no consequence.  For example, she said that
B.A. admitted she was "quite drunk", while the appellant points out
that the admission was that she was "very drunk".

[27]

It is true, as well, as
the appellant points out, that the positive assertions of the three witnesses
on material issues of fact given in their direct testimony was, in several
instances, qualified in cross-examination.  J.S. admitted that he was not sure
that the appellant was the second assailant, along with J.H., and that he might
have been given that information by others later.  R.C.'s attribution of words
of admission by the appellant was rendered less specific in cross-examination. 
And B.A.'s testimony that she saw both J.H. and the appellant kicking Mr. Sidhu
was qualified by her answer on cross-examination that she was not sure that
both were doing so.  Further, her evidence relating to her point of observation
was clouded in cross-examination.  In direct, she said the appellant pushed Mr.
Sidhu to the ground while she was with him at the intersection; in cross, she
allowed that this might have occurred when she was looking back from a vantage
point further up 124
th
Street.

[28]

However, B.A. was not
shaken or contradicted in her testimony that she observed the appellant push
Sidhu to the ground at the beginning of the beating.  Nor did R.C. resile from
his evidence that the appellant effectively admitted his joint participation.

[29]

The alleged frailties
in the evidence were for the trial judge to consider in the context of the
evidence as a whole.  I am not persuaded that she committed any error in the
manner in which she dealt with this issue.  We cannot simply substitute our
view of the proper inferences to be drawn for those drawn by the trial judge.

[30]

Accordingly, I would
reject the appellant's submission that the trial judge erred by misapplying the
test for credibility, misapprehending the evidence, and failing to explain her
verdict.

[31]

I turn to the
submission that the verdict is unreasonable or unsupported by the evidence. 
The burden on the appellant under s. 686(1)(a)(i) of the
Code
is
to satisfy us that the verdict is one that a properly instructed jury acting
judicially could not reasonably have rendered.  In making this determination,
we must re-examine and, to some extent at least, re-weigh and consider the
effect of the evidence.  Having performed that exercise, I am not persuaded
that the trial judge's finding of guilt is unreasonable.

[32]

It must be remembered
that the appeal is from the conviction and not from the reasons for
conviction.  There was before the trial judge evidence that the appellant
pushed Sidhu to the ground and that he later kicked Sidhu.  There was also
evidence that he admitted as much to his foster father.  The trial judge was
entitled to accept this evidence, whether she explained why expressly or not.

[33]

Viewing the evidence as
a whole, I am satisfied that the trial judge's conclusion that the appellant
was a party to the aggravated assault of Mr. Sidhu was well-grounded in the
evidence.

[34]

Accordingly, I would
dismiss the appeal.

[35]

DONALD J.A.:
Mr. Sicotte has said all that could be said
for the appellant in this case but for the reasons given by Mr. Justice Smith,
I too would dismiss the appeal.

[36]

LEVINE J.A.:
And

I agree with both of my
colleagues.

[37]

DONALD J.A.:
The appeal is dismissed.

The Honourable Mr. Justice Smith


