COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Woodward,

 

2011 BCCA 251

Date: 20110527

Docket:  CA038581

Between:

Regina

Respondent

And

Shawn Woodward

Appellant

Before:

The Honourable Madam Justice Rowles

The Honourable Mr. Justice Chiasson

The Honourable Mr. Justice Frankel

On appeal from:  Provincial Court of British Columbia, November 8, 2010

(R. v. Woodward, 2010 BCPC 271, Vancouver Docket No. 206660-1)

Counsel for the Appellant:

J. Whysall

Counsel for the Respondent:

F.G. Tischler

Place and Date of Hearing:

Vancouver, British Columbia

April 13, 2011

Place and Date of Judgment:

Vancouver, British Columbia

May 27, 2011

 

Written Reasons by:

The Honourable Mr. Justice Frankel

Concurred in by:

The Honourable Madam Justice Rowles
The Honourable Mr. Justice Chiasson


Reasons for Judgment of the Honourable Mr. Justice Frankel:

Introduction

[1]             Shawn Woodward seeks leave to appeal and, if leave is granted, appeals a sentence of six years’ imprisonment for the aggravated assault of William Dowrey.  The offence occurred when Mr. Dowrey, who was celebrating his retirement at a pub, was “sucker punched” by Mr. Woodward.  That blow struck Mr. Dowry with such force he was immediately rendered unconscious.  He fell backwards, hitting his head on the floor.  The injury to Mr. Dowrey’s brain was so severe that he is now incapable of caring for himself.  He will need assistance for the rest of his life.

[2]             The pub’s clientele consists predominantly, but not exclusively, of gay, lesbian, and transgender persons.  Neither Mr. Dowrey nor Mr. Woodward is such a person.  However, it was because Mr. Woodward perceived Mr. Dowrey to be gay that he went out of his way to strike him.

[3]             Following a trial, Mr. Woodward was convicted by Judge Palmer of the Provincial Court of British Columbia:  2010 BCPC 177.  In sentencing Mr. Woodward, the judge found that the attack on Mr. Dowrey had been motivated by anti-homosexual bias and hatred:  2010 BCPC 271.

[4]             Mr. Woodward contends that the sentencing judge erred by:  (a) failing to place the aggravating factor of bias and hatred into its proper context; (b) failing to give sufficient credit to the fact that this was his first custodial sentence; and (c) focusing unduly on the nature of the injuries sustained by Mr. Dowrey as opposed to the nature of the assault.

[5]             I can find no basis on which to interfere with the sentencing judge’s decision.  Although I would grant leave, I would dismiss the appeal.

Factual Background

[6]             On the evening of March 13, 2009, Mr. Dowrey, who was 61 years old, was celebrating his retirement with some friends at the Fountainhead Pub on Davie Street, in Vancouver, British Columbia.  Mr. Woodward, who was 36 years old and working at a nearby construction site, was also at the pub with some co-workers.  This was Mr. Woodward’s second visit to the pub and he was aware of the sexual orientation of some of its patrons.  After Mr. Woodward’s co-workers left, he was joined by a friend, Gregory Price.

[7]             During the course of the evening, Mr. Dowrey twice approached Mr. Woodward.  On the first occasion, Mr. Dowrey came over to Mr. Woodward, touched him on the shoulder, and offered to buy him a drink.  Mr. Woodward declined, stating, “No.  I’m not like that”.  On the second occasion, Mr. Dowrey asked Mr. Woodward if he would like to play a game of pool.  Mr. Woodard declined, stating, “I don’t want a drink, I don’t want to play pool, I just want to be left alone.”

[8]             Shortly after this, Mr. Dowrey was preparing to start a game of pool with a friend.  At the same time, Mr. Woodward and Mr. Price decided to leave.

[9]             Mr. Price left the pub by the nearest exit.  Mr. Woodward did not.  Taking what can be described as an indirect route, Mr. Woodward walked over to Mr. Dowrey, who was on the far side of a pool table.  Without saying a word, Mr. Woodward, who is considerably shorter than Mr. Dowrey, made a fist with his right hand and drove it into Mr. Dowrey’s face with such force that Mr. Dowrey was rendered unconscious on his feet.  Mr. Dowrey fell backwards, struck his head on the floor, and sustained a catastrophic brain injury.  The pub’s surveillance video shows how Mr. Woodward bent forward at the waist, and followed Mr. Dowrey down to the floor as he fell.  Mr. Woodward then stepped over Mr. Dowrey and walked outside.

[10]         A number of persons followed Mr. Woodward out of the pub and restrained him until the police arrived.  When asked why he did it by one of those persons, Mr. Woodward responded, “He’s a faggot – he deserved it – the faggot touched me – I’m not a faggot – he deserved it.”  Mr. Woodward repeated similar words to the officers over the next half hour.  He also told the police he had been touched or grabbed in the crotch, which was not true.  When one of the officers said to Mr. Woodward that he had hit Mr. Dowrey “right on the button”, Mr. Woodward replied, “Yes, because I am a fighter.”  It should be noted, however, that there is no evidence that Mr. Woodward had any training as a fighter.

[11]         Mr. Dowrey suffered a frontal skull fracture, along with bruising and bleeding inside his skull.  Were it not for timely medical intervention he would have died from his injuries.  He was hospitalized for four months before being moved to an assisted living facility.  As a result of the damage to his brain, Mr. Dowrey has permanent cognitive, memory, behavioural, and psychomotor disabilities.  He will forever be incapable of living on his own.

[12]         Mr. Woodward’s criminal record consisted of a conviction in 2001 for mischief under $5,000.00 for which he was placed on probation for one year, and a conviction in 2002 for driving over .08 for which he was fined $750.00.

Reasons for Sentence

[13]         The maximum sentence for aggravated assault is 14 years:  Criminal Code, R.S.C. 1985, c. C-46, s. 268(2).  At the sentencing hearing, Crown counsel sought a penitentiary term of six to seven years.  Mr. Woodward’s counsel acknowledged that a penitentiary term was appropriate, but argued that two years was sufficient.

[14]         The sentencing judge found that the attack on Mr. Dowrey had been unprovoked.  She further found that Mr. Woodward had gone out of his way to deliver what was intended to be a “punishing” blow to someone who “had absolutely no opportunity to defend himself”.  The judge commented that Mr. Woodward had shown “utter disregard for Mr. Dowrey’s humanity” by stepping over him as he lay unconscious on the floor, and by failing to inquire of anyone, including the police, about his condition.  She also noted that Mr. Woodward had never expressed sincere remorse in court for what happened to Mr. Dowrey.

[15]         Referring to her earlier rejection of Mr. Woodward’s testimony at trial that he had been assaulted by Mr. Dowrey, the sentencing judge stated:

[22]      I found Mr. Woodward to be devoid of credibility in his evidence with respect to his allegation of sexual assault by Mr. Dowrey.  He was unable to decide what exactly had occurred when he approached Mr. Dowrey and drove that punch into his face.  Mr. Woodward’s evidence on direct and cross-examination was startling in its utter lack of meaningful detail regarding the provocation for such violence.  He admitted on cross-examination that he could have walked away but chose to deliver a hard punch instead.

[16]         In addition to the general principles of sentencing set out in the Criminal Code, the sentencing judge had particular regard to s. 718.2(a)(i), which directs that consideration be given to:

[E]vidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor[.]

She noted that such reprehensible motivation is an aggravating factor and, therefore, the onus is on the Crown to prove it beyond a reasonable doubt.

[17]         In finding that standard of proof had been met, and that Mr. Woodward had been motivated by bias, prejudice or hatred towards homosexuals, the sentencing judge said this:

[24]      ... The Fountainhead Pub is known generally, and was known specifically to Mr. Woodward, to attract a large gay clientele on Friday nights.  Mr. Woodward repeatedly uttered homophobic language after assaulting Mr. Dowrey.  The only interactions between Mr. Dowrey and Mr. Woodward prior to the assault were two brief conversations and one touch on Mr. Woodward’s shoulder.  There was no contact and no provocation immediately before Mr. Dowrey was assaulted.  He had absolutely no opportunity to defend himself.  This was a sucker-punch thrown with such force that it rendered Mr. Dowrey unconscious on his feet.  The consequences of knocking someone out while they are standing on a tile floor may not have been intended but were certainly foreseeable.  Apart from the brief interactions described above there is no history between Mr. Woodward and Mr. Dowrey.  Given Mr. Woodward’s abhorrent language and behaviour outside the pub after he was apprehended I see no other possible explanation or motivation for Mr. Woodward’s assault on Mr. Dowrey than virulent homophobia.

[18]         After reviewing the sentencing decisions cited by both parties, Mr. Woodward’s background, his support from family and friends, and the victim impact statements provided by Mr. Dowrey’s children and his brother, the sentencing judge imposed a sentence of six years’ imprisonment.  She expressed her conclusion as follows:

[52]      I do not agree with Mr. Whysall’s submission that Mr. Woodward is, apart from this matter, otherwise a man of good character.  He is a man of flawed character.  Even if his anger at and his vicious assault on Mr. Dowrey came as a surprise to Mr. Woodward, revealing hostility he had not previously acknowledged he has yet to express real remorse in this venue.  He has not acknowledged the harm done to Mr. Dowrey and his family nor accepted responsibility for his actions and despicable words.

[53]      The only mitigating factor in this case is the support Mr. Woodward enjoys in his family and circle of friends.  The serious aggravating factors are the nature of the assault and the excessive violence with which Mr. Woodward punched Mr. Dowrey.  In the circumstances of this case, with due regard to the circumstances of this offender, and placing emphasis on denunciation and deterrence for the abhorrent motivation behind this assault I have determined that the fit sentence for Mr. Woodward is one of six years.

[19]         In addition, the judge imposed the mandatory weapons prohibitions required by s. 109 of the Criminal Code and made an order, pursuant to s. 487.051, requiring Mr. Woodward to provide a DNA sample.

Analysis

[20]         The standard of review applicable on a sentence appeal is well known.  It was recently stated by Mr. Justice LeBel in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, in the following terms:

[46]      Appellate courts grant sentencing judges considerable deference when reviewing the fitness of a sentence.  In M. (C.A.), Lamer C.J. cautioned that a sentence could only be interfered with if it was “demonstrably unfit” or if it reflected an error in principle, the failure to consider a relevant factor, or the over-emphasis of a relevant factor (para. 90; see also R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 14-15; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 123-26; R. v. McDonnell, [1997] 1 S.C.R. 948, at paras. 14-17; R. v. Shropshire, [1995] 4 S.C.R. 227).  As Laskin J.A. explained in R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, however, this does not mean that appellate courts can interfere with a sentence simply because they would have weighed the relevant factors differently:

To suggest that a trial judge commits an error in principle because in an appellate court’s opinion the trial judge gave too much weight to one relevant factor or not enough weight to another is to abandon deference altogether.  The weighing of relevant factors, the balancing process is what the exercise of discretion is all about.  To maintain deference to the trial judge’s exercise of discretion, the weighing or balancing of relevant factors must be assessed against the reasonableness standard of review.  Only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court interfere with the sentence on the ground the trial judge erred in principle.

[21]         In advancing his appeal, Mr. Woodward does not take issue with any of the sentencing judge’s findings of fact, or suggest that she took irrelevant factors into account.  Rather, his complaints relate to the weight the judge gave to certain factors.  He says a fit sentence is in the range of three to four years.

The Aggravating Factor of Bias and Hatred

[22]         Mr. Woodward does not dispute that his attack on Mr. Dowrey was motivated by bias and hatred towards homosexuals, nor does he dispute that this motivation is an aggravating factor on sentencing.  However, he submits that while such motivation is deserving of reproval, the context must be considered.  He says that what occurred here lies at the lower end of the aggravation scale and that the judge, by failing to recognize this, gave that factor too much weight.

[23]         Mr. Woodward submits that the primary focus of s. 718(2)(a)(i) is on offenders who single out victims in public places without any prior interaction, solely because of the victim’s personal characteristics; what he describes as bullying or mob-like behavior.  He says such offenders are more blameworthy and, therefore, should be subjected to more severe penal sanctions than those whose conduct is reactive as opposed to calculated.  He cites several decisions he contends support that submission:  R. v. Ingram and Grimsdale (1977), 35 C.C.C. (2d) 376 (Ont. C.A.); R. v. Kandola, 2010 BCSC 841; and R. v. Hiscock, 2002 BCSC 1772.

[24]         Ingram and Grimsdale, which pre-dates s. 718(2)(a)(i), deals with two offenders who randomly attacked a person for no reason other than that he was a member of a racial minority.  In allowing a sentence appeal by the Crown, Mr. Justice Dubin, as he then was, stated (at 379):

            It is a fundamental principle of our society that every member must respect the dignity, privacy and person of the other.  Crimes of violence increase when respect for the rights of others decreases, and, in that manner, assaults such as occurred in this case attack the very fabric of our society.  Parliament's concern for the incitement of racial hatred is reflected in s. 281 [sic, s. 281.2, now s. 319] of the Criminal Code.  An assault which is racially motivated renders the offence more heinous.  Such assaults, unfortunately, invite imitation and repetition by others and incite retaliation.  The danger is even greater in a multicultural, pluralistic urban society.  The sentence imposed must be one which expresses the public abhorrence for such conduct and their refusal to countenance it.

[25]         In Kandola, Mr. Justice Groves found that s. 718(2)(a)(i) applied in circumstances where Mr. Kandola and four others confronted and taunted two gay men who were doing nothing more than walking on the street one morning holding hands.  Mr. Kandola sucker punched one of those men, knocking him to the ground unconscious.  In Hiscock, the victim, who was out walking, was attacked by Mr. Hiscock and others members of his gang, for no reason other than that the jacket the victim was wearing was the same colour as that worn by a rival gang.  Although s. 718(2)(a)(i) was not engaged, Madam Justice Stromberg-Stein found the senseless and unprovoked nature of the attack to be an aggravating factor.

[26]         The flaw in Mr. Woodward’s submission is that what he did is the very type of conduct he acknowledges is significantly blameworthy and, therefore, deserving of significant denunciation.  Mr. Woodward’s actions were premeditated.  He could easily have left the pub without incident.  However, rather than doing so, he went out of his way to deliver what he intended to be a punishing blow to Mr. Dowrey.  To put it bluntly, Mr. Woodward “targeted” Mr. Dowrey because of his perception that Mr. Dowrey is gay and then sought to justify what he had done on that basis.  Such cannot be viewed as anything other than a significant aggravating factor.

[27]         Section 718(2)(a)(i) reflects the fact that Canadians take pride in being members of a pluralistic, multicultural society, in which every individual is entitled to respect.  Not only do we abhor violence, we particularly abhor it being gratuitously directed at someone solely because of his or her personal characteristics, such as race, religion, sexual orientation, etc.  Such conduct is antithetical to our collective beliefs.

First Custodial Sentence

[28]         Mr. Woodward next submits that insufficient consideration was given to this being his first custodial sentence.  He says that the sentencing judge did not have proper regard to the principle of restraint.  I do not agree.  Although the fact that Mr. Woodward had not been incarcerated previously is a consideration, it is but one factor in determining a fit sentence.  While the sentencing judge did not specifically mention restraint as a stand-alone factor, she did take Mr. Woodward’s personal circumstances into account.  She also had regard to the fact that this Court has indicated that significant custodial sentences are appropriate for offenders who commit serious aggravated assaults, even those with previously unblemished records.

[29]         In R. v. Payne, 2007 BCCA 541, 227 C.C.C. (3d) 30 at para. 44, Mr. Justice K. Smith indicated, following a review of a number of cases, that “sentences in the range of six to eight years for serious aggravated assaults are not uncommon”.  To the cases referred to in Payne I would add R. v. Biln, 1999 BCCA 369, 125 B.C.A.C. 254 at para. 24, wherein Chief Justice McEachern stated that:

[T]he global range, apart from the personal circumstances of the offender, is probably from two years (less one day) to six years depending in part upon the degree of violence used in the commission of the offence, although it could be more than that in some extreme cases.

[30]         Further, R. v. Rasanen (1997), 92 B.C.A.C. 74, and R. v. Haj-Ahmed, 2007 BCCA 143, support the imposition of a significant custodial sentence for aggravated assault even for first-time offenders.  In Rasanen, a six-year sentence for a vicious, planned assault that caused permanent brain damage and physical impairment was upheld, even though Mr. Rasanen, who was 22 years old, did not have a criminal record.  In Haj-Ahmeh, a five-year sentence was upheld for a 39-year-old offender with no record, who poured hot oil over his sleeping roommate causing permanent injury and disfigurement.  These cases belie Mr. Woodward’s submission that the higher end of the range is appropriate only for offenders who are otherwise committed to criminality.

Injuries versus the Nature of the Assault

[31]         Lastly, Mr. Woodward submits that the sentencing judge placed too much emphasis on Mr. Dowrey’s injuries.  He says there was an “element of chance” involved in this offence and that it is unusual for victims of a single punch to sustain injuries that affect them for the rest of their lives.

[32]         Once again, the facts do not support this submission.  As previously mentioned, Mr. Woodward went out of his way to deliver a punishing blow to a person who could not have anticipated being attacked and was, therefore, completely defenceless.  While Mr. Woodward may not have intended to change Mr. Dowrey’s life forever, he did intend to harm him by using force that Mr. Woodward knew, or ought to have known, had the potential to inflict serious injury.  The fact that this was, to use Mr. Woodward’s terminology, a “one punch assault” does not lessen the gravity of what he did.

Conclusion

[33]         In my view, the sentencing judge considered the relevant factors and committed no reviewable error in weighing and balancing them.  The sentence she imposed is a fit one, within the range for an offence of this nature.

[34]         I would grant leave to appeal and dismiss this appeal.

“The Honourable Mr. Justice Frankel”

I agree:

“The Honourable Madam Justice Rowles”

I agree:

“The Honourable Mr. Justice Chiasson”