Court and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20210921 DOCKET: C67787

Judges: Hoy, Trotter and Paciocco JJ.A.

BETWEEN:

Her Majesty the Queen Respondent

and

Michael Baylis Appellant

Counsel: Michael Baylis, acting in person Richard Litkowski, appearing as duty counsel Philippe Cowle, for the respondent

Heard: September 9, 2021 by video conference

On appeal from the conviction entered by Justice Pamela L. Hebner of the Superior Court of Justice, on January 14, 2018.

Reasons for Decision

[1] The appellant stood trial on a six-count indictment in relation to two violent incidents that occurred at a trailer park. Although the first incident resulted in five counts, the appellant was found guilty of a single count of aggravated assault. He was also convicted of assault with a weapon arising out of the second incident. He appeals both convictions.

The First Incident

[2] On September 18, 2015, while a guest in someone’s trailer, the appellant was in an altercation with two men. He punched William Jeffs in the face, knocking him out. He then attacked Anthony Elias with his fists and feet. He struck Mr. Elias with a baseball bat, causing serious and permanent injuries. Mr. Elias was in the hospital for three to four months.

[3] The appellant testified and claimed to be acting in self-defence, having been attacked by both Mr. Jeffs and Mr. Elias. He denied hitting Mr. Elias with his fists or feet. He said he picked up an object that may have been a baseball bat and that he connected with something when he swung the bat behind him.

[4] Kenneth Bristol was at the same gathering and witnessed what occurred. He testified that, in the weeks following the incident, the appellant instructed him to burn the baseball bat. The appellant also threatened and assaulted him.

[5] The trial judge found that the appellant assaulted Mr. Jeffs but she had a reasonable doubt about whether he acted in self-defence. The appellant was acquitted on this count.

[6] The appellant was also acquitted of the counts concerning the disposal of the baseball bat. The trial judge found the evidence to be contradictory.

[7] The appellant was convicted of aggravated assault in relation to Mr. Elias. She rejected the appellant’s claim of self-defence in relation to this count.

The Second Incident

[8] The second incident happened on July 3, 2016. Mr. Bristol was in his trailer with some teenagers who were playing video games. The topic of discussion turned to the appellant and they spoke disparagingly of him. Unbeknownst to them, the appellant had entered the trailer to retrieve his wallet. He was angered by what he heard and hit Mr. Bristol over the head with a beer bottle three times.

[9] The appellant claimed that he acted in self-defence in relation to the second incident. He said that Mr. Bristol had pushed him. Mr. Bristol was holding a bottle of beer at the time, and when the appellant struck Mr. Bristol with an open hand, Mr. Bristol somehow ended up being hit with the bottle. The trial judge rejected the appellant’s evidence and found him guilty on this count.

Discussion

[10] In relation to the first incident, the appellant submits that the trial judge erred in her approach to the evidence of Mr. Bristol. The trial judge found that Mr. Bristol was a key witness to the first incident because, unlike Mr. Jeffs and Mr. Elias, he was conscious for the entire incident. Mr. Bristol initially refused to cooperate with the police in relation to the first incident, apparently out of fear of the appellant. He did, however, report the second incident after he was attacked by the appellant. He testified about both incidents at trial.

[11] The trial judge accepted that Mr. Jeffs, Mr. Elias, and Mr. Bristol were all unsavoury witnesses within the meaning of Vetrovec v. The Queen, [1982] 1 S.C.R. 811. She held, “[t]heir evidence requires special scrutiny. It is dangerous to convict Mr. Baylis on the basis of the evidence of these witnesses without corroboration.”

[12] The appellant submits that the trial judge understated the qualities that made Mr. Bristol an unsavoury witness. She downplayed his criminal record and his degree of intoxication that day. She failed to address Bristol’s lies to the police and the fact that he only came forward after the second incident. Finally, the trial judge failed to address the possibility of collusion between the witnesses.

[13] We would not give effect to this ground of appeal. Some of the arguments advanced on appeal – such as the passage of time and the possibility of collusion – were not argued before the trial judge. More importantly, the trial judge was aware of the frailties of the three men. She appreciated that they were all “extremely intoxicated.”

[14] The trial judge was not required to itemize every quality that made Mr. Bristol an unsavoury witness. She made the finding and then looked for confirmation of his evidence.

[15] First, she noted that Mr. Bristol’s evidence was consistent with the recollections of both Mr. Jeffs and Mr. Elias. Absent evidence of collusion, and there was none in this case, the trial judge was entitled to find that the evidence of these Vetrovec witnesses could confirm each other: R. v. Roks, 2011 ONCA 526, 87 C.R. (6th) 144.

[16] Second, the trial judge looked to the forensic evidence for confirmation. As she said, “[h]is evidence specifically of the attack on Mr. Elias is consistent with the forensic evidence of Mr. Elias’ blood on the coffee table next to the sofa.”

[17] The trial judge did not err in how she evaluated Mr. Bristol’s evidence. We dismiss this ground of appeal.

[18] In relation to the second incident, the appellant submits that the trial judge used some “unfortunate language” in her reasons. In addition to Mr. Bristol’s account, Joshua Pare, who was 15 at the time, testified that he was in the trailer and saw the appellant hit Mr. Bristol with the beer bottle. He also testified about the discussion that the appellant overheard that triggered the incident.

[19] The trial judge was aware that Joshua had been drinking and smoking marijuana when the events unfolded in the trailer. She said: “Nonetheless, he gave his evidence in a straightforward manner. He was not contradicted in cross-examination. I prefer Joshua’s evidence on the events that occurred at the second gathering ” (emphasis added). Later in her reasons, the trial judge said:

As previously indicated, I prefer the evidence of Joshua on events that occurred during the second gathering. Joshua’s evidence is that Mr. Baylis took a beer bottle and hit Mr. Bristol over the head with it. I accept that evidence . It is consistent with Mr. Bristol’s evidence. It is consistent with Mr. Bristol’s injuries. I reject Mr. Baylis’ evidence that he intended to strike Mr. Bristol with an open hand and Mr. Bristol was hit with a beer bottle accidentally. [Emphasis added.]

[20] The appellant submits that the trial judge’s use of the term “prefer” reflects a misapplication of the standard and burden of proof. That is, she approached this aspect of the evidence as a credibility contest between Joshua and the appellant.

[21] This court has stated numerous times that this approach and the use of this language must be avoided in criminal trials. Nonetheless, we are satisfied that the “unfortunate language” used by the trial judge was a linguistic slip, and not a misapprehension of the standard and burden of proof. It would appear from the second passage that the trial judge used the words “prefer” and “accept” interchangeably, and did not engage in a simple choice between the evidence of Joshua and the appellant.

[22] Moreover, earlier in her reasons, the trial judge specifically instructed herself in accordance with R. v. W.(D.), [1991] 1 S.C.R. 742. When her reasons are read in their entirety, it is clear that the trial judge properly applied the standard and burden of proof. The trial judge’s ultimate findings across all counts in the indictment, resulting in the appellant’s acquittals on four of the six counts, demonstrate that she employed the proper approach.

[23] We would dismiss this ground of appeal.

Disposition

[24] The appeal is dismissed.

“Alexandra Hoy J.A.”

“Gary Trotter J.A.”

“David M. Paciocco J.A.”