Court File and Parties

Court of Appeal for Ontario Date: 2022-01-21 Docket: C68433

Before: Feldman, MacPherson and Thorburn JJ.A.

Between: Her Majesty the Queen Respondent

And: Michael Baylis Appellant

Counsel: Emily Lewsen, for the appellant Nicholas Hay, for the respondent

Heard: January 17, 2022 by video conference

On appeal from the sentence imposed on December 2, 2019 by Justice Pamela L. Hebner of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of one count of aggravated assault and one count of assault with a weapon. The assaults took place on two dates in two different trailers in a trailer park.

[2] On September 18, 2015, there was a party in trailer number 9. The appellant struck Anthony Elias with his feet, fists and a baseball bat, causing permanent injuries. Mr. Elias continues to suffer brain injury from a skull fracture.

[3] On July 3, 2016, there was a second gathering in trailer number 8 which was owned by Kenneth Bristol. The appellant attended the gathering and struck Bristol over the head three times with a beer bottle. Bristol received a cut and a black eye and was unable to move his jaw for a period of time.

[4] The sentencing judge imposed a sentence of five years imprisonment for the aggravated assault on Mr. Elias and six months consecutive for the assault with a weapon on Mr. Bristol. The appellant appeals his sentence on two grounds.

[5] First, the appellant contends that the sentencing judge did not properly consider and weigh the aggravating and mitigating factors in her analysis. In particular, she erred by concluding that Mr. Elias did not provoke the fight with the appellant, and treating that as an aggravating factor.

[6] We do not accept this submission. The sentencing judge explicitly considered both aggravating and mitigating factors. It is obvious that the former greatly outweighed the latter. The trial judge noted the extremely violent circumstances of the offence, the fact that the appellant was impaired by alcohol and drugs when he committed the offence, his two decades plus criminal record, including “numerous offences including … assault causing bodily harm and simple assault” and Mr. Elias’s “serious and permanent injuries” as, cumulatively, factors supporting a stiff sentence. We agree.

[7] Nor do we think that the sentencing judge erred by concluding that the appellant’s attack on Mr. Elias was unprovoked and treating that as an aggravating factor. The appellant had just punched an acquaintance, Mr. William Jeffs, in the trailer, knocking him unconscious. When Mr. Elias moved toward him, the appellant attacked him, kicking and stomping on him and knocking him unconscious with a baseball bat when he fell to the floor. In our view, the trial judge’s description of the attack – “Mr. Elias did nothing to provoke Mr. Baylis. This was not a consensual fight. This was a savage beating of an individual who was on the ground and not fighting back” – was entirely appropriate.

[8] Second, the appellant submits that the sentencing judge erred by failing to consider the application of Gladue principles when imposing his sentence: R. v. Gladue, [1999] 1 S.C.R. 688.

[9] We are not persuaded by this submission. The potential author of a Gladue report informed trial counsel that it was impossible to prepare a Gladue report in this case because the appellant was unsure if he had Indigenous ancestry and there was, therefore, no information about how potential Indigenous ancestry had affected his life. Defence counsel accepted this information. Against this background, the sentencing judge was not required to embark on a Gladue analysis: see R. v. F.H.L., 2018 ONCA 83, at paras. 39-45.

[10] The appeal is dismissed.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“J.A. Thorburn J.A.”