Court File and Parties

Court File No.: CR-18-4258 Date: 20190114 Oral Decision: January 14, 2018

Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Michael Baylis, Accused

Counsel: Renee Puskas, for the Crown Shannon L. Pollock, for the Accused

Heard: November 14, 15, 16, 19 and 20, 2018

Reasons for Judgment

Hebner J.:

[1] Michael Baylis has been charged on a six count indictment as follows:

1. That he committed an assault on William Joel Jeffs on September 18, 2015, contrary to section 266 of the Criminal Code, R.S.C. 1985, c. C-46;
2. That he committed an aggravated assault on Anthony Elias on September 18, 2015, contrary to section 268 of the Criminal Code;
3. That he, by word-of-mouth, knowingly uttered a threat to Kenneth Bristol to cause death to him contrary to section 264.1 (1) (a) of the Criminal Code. This offence is said to have occurred between September 18, 2015 and December 25, 2015.
4. That he committed an assault on Kenneth Bristol contrary to section 266 of the Criminal Code. This offence is alleged to have occurred between September 18, 2015 and December 25, 2015.
5. That he obstructed justice by threatening witnesses and compelling them to destroy evidence contrary to section 139 of the Criminal Code. This offence is alleged to have occurred between September 18, 2015 and December 25, 2015.
6. That he assaulted Kenneth Bristol with a weapon, namely a beer bottle, on July 3, 2016, contrary to section 267 of the Criminal Code.

[2] All of the offences are alleged to have occurred at the town of Kingsville in the Southwest Region. More specifically, the offences are alleged to have occurred at a trailer park located at 709 Heritage Road, Kingsville, Ontario (“the trailer park”). The location of the offences that are alleged to have taken place on September 18, 2015, is trailer number 9 owned by Kevin Pare. The location of the offence that was alleged to have occurred on July 3, 2016, took place in trailer number 8, owned by Kenneth Bristol.

[3] The court heard evidence from the following witnesses:

• William Joel Jeffs
• Anthony Elias
• Kenneth Bristol
• Garry Reeb
• Joshua Pare
• Police Constable Quick
• Kevin Pare
• Officer Mark Lancaster
• Michael Baylis

Background Facts

[4] The charges all relate to two separate gatherings that took place at the trailer park.

[5] On September 18, 2015, there was a gathering in trailer number 9 (“the first gathering”). At the time, trailer number 9 was owned by Kevin Pare. The individuals at that gathering were the accused, Mr. Jeffs, Mr. Elias and Mr. Bristol. Also in attendance were the accused’s sister, Robin Baylis, and Mr. Pare’s then common-law spouse, Krystal Doughty. Mr. Pare was not home at the time. Another resident at the trailer park, Gary Reeb, was also in attendance at an earlier point during the gathering, but was not in attendance at the time of the alleged offences. The allegations are that the accused punched Mr. Jeffs knocking him out (Count 1). He then assaulted Mr. Elias with his fists and his feet, finally taking a baseball bat and using it to strike Mr. Elias on the head (Count 2). Mr. Elias suffered permanent and serious injuries as result.

[6] During the months following the September 18 gathering, the accused is said to have threatened Mr. Bristol, choking him at one point, thereby compelling him to burn the baseball bat (Counts 3, 4 and 5).

[7] On July 3, 2016, there was a gathering in trailer number 8 (“the second gathering”). At the time trailer number 8 was owned by Kenneth Bristol. Mr. Bristol was hosting several neighborhood teenagers who were playing video games. The accused is said to have attended and assaulted Mr. Bristol, striking him over the head with a beer bottle (Count 6).

The First Gathering

[8] The evidence on the events that took place at the first gathering came from Mr. Jeffs, Mr. Elias, Mr. Bristol and the accused. Mr. Jeffs is a longtime friend of Mr. Elias. Mr. Jeffs described their relationship in September 2015 as best friends. At the time, Mr. Jeffs lived in Kingsville with his grandmother.

[9] Mr. Bristol lived at the trailer park in trailer number 8, adjacent to trailer number 9. He knew Mr. Baylis, who lived in Harrow. He knew Brittney Baylis, who lived in a trailer close to his own. He knew Robin Baylis who came to the trailer park to party with her sister. He said that in the past, he had used cocaine and crack cocaine with all of them.

[10] Mr. Bristol knew Mr. Jeffs. He said that Mr. Jeffs regularly came to the trailer park and partied with the inhabitants. He estimated that he saw Mr. Jeffs approximately 20 – 30 times.

[11] Mr. Bristol described Mr. Baylis as an individual who used crack and cocaine. Mr. Baylis was at the trailer park partying with the inhabitants more weekends than not. Mr. Bristol described everyone at the first gathering as people who “partied together”. The only person Mr. Bristol was not familiar with was Mr. Elias.

[12] Mr. Jeffs and Mr. Elias spent the day of the first gathering together drinking alcohol. They eventually found their way to Mr. Elias’ home in Kingsville. They decided they wanted to purchase some drugs, and more specifically cocaine. At approximately 6:00 p.m. – 7:00 p.m., Mr. Jeffs called Brittney Baylis, the accused’s sister. Brittney Baylis at that time resided in a trailer at the trailer park and Mr. Jeffs knew her as a person who would be in a position to sell him some cocaine. Brittney said she would contact her sister, Robin. Arrangements were made for Robin to pick Mr. Elias and Mr. Jeffs up, make a stop at the liquor store where Mr. Jeffs and Mr. Elias purchased vodka and drive to the trailer park.

[13] When they arrived at the trailer park, the three partygoers attended at trailer number 9. Mr. Baylis was in attendance, along with Mr. Bristol and Ms. Doughty. Mr. Jeffs had been at the trailer park frequently and described Mr. Bristol as a “regular drinking buddy”. Mr. Elias had only been at the trailer park on one prior location and had never met Mr. Baylis or Mr. Bristol before. Mr. Elias purchased some cocaine from Mr. Baylis. Mr. Jeffs had brought along marijuana. The group congregated in the kitchen of trailer number 9 drinking alcohol and ingesting drugs. Mr. Elias shared the cocaine he had purchased with the rest of the group. They ingested the cocaine by snorting it through their nostrils. At some point, the party spilled over into the driveway and some of the group walked to the lake and returned after about 10 minutes. Eventually, all of the partygoers returned to the kitchen in trailer number 9.

[14] Until the altercation occurred, all of the partygoers were having a good time. They were drinking copious amounts of alcohol and ingesting drugs. They were all significantly impaired. The evening turned very dark very quickly at approximately midnight.

[15] According to Mr. Jeffs, the evening turned dark after Mr. Elias purchased more cocaine from Mr. Baylis. Mr. Jeffs described himself as a loudmouth and said he may have said something to anger Mr. Baylis. Mr. Jeffs remembers getting hit in the face, was knocked unconscious and woke up on the floor in the kitchen.

[16] According to Mr. Elias, he ingested the cocaine immediately upon purchasing it. He described “doing cocaine lines” at the kitchen table. He said he purchased the cocaine, “did the lines” and remembers little else. He remembers Mr. Jeffs being on the ground in front of the refrigerator on the carpet. He remembers Mr. Jeffs being unconscious. He remembers Ms. Doughty screaming down the hallway. He has a memory of running scared on the road alongside the trailer park. His first coherent memory is the next morning at the home that Mr. Jeffs shared with his grandmother.

[17] The bulk of the evidence on the altercation came from Mr. Bristol. Mr. Bristol said that Mr. Jeffs and Mr. Baylis began to exchange words. He either did not know or could not recall what triggered the exchange. There was evidence that Mr. Elias was concerned about a missing iPad and that may have been the trigger. Mr. Jeffs was standing in the kitchen by the refrigerator and Mr. Baylis was standing just inside the door to the mud room on the other side of the refrigerator. Mr. Jeffs took a step toward Mr. Baylis. Mr. Baylis had a scar on his hand. He showed it to Mr. Jeffs and told him he could not fight. Mr. Jeffs bent down to look at the scar and Mr. Baylis hit Mr. Jeffs in the face hard enough to “knock him out of his sandals”. Mr. Jeffs ended up lying on the floor by the fridge barefoot and unconscious.

[18] At the time Mr. Baylis punched Mr. Jeffs, Mr. Elias was sitting on the sofa. He was upset, stood up and said something to Mr. Baylis. There was some evidence that Mr. Elias had a heavy ashtray in his hand. The two men began arguing in raised voices. Mr. Baylis punched Mr. Elias in the face and Mr. Elias fell between the sofa and the coffee table. Mr. Bristol described the punch as Mr. Baylis “put him on his ass”. When Mr. Elias was on the floor, Mr. Baylis started stomping on his head and kicking him. Mr. Bristol and Ms. Doughty were screaming at him to stop. Robin Baylis told them to “stay out of it” and stood in front of Mr. Bristol with her arms up in a guarding stance so that he could not assist Mr. Elias.

[19] Mr. Bristol said that at one point Mr. Elias sat up on the floor beside the sofa whereupon Mr. Baylis took his head, put it over the sofa seat and stomped on it with his foot. Mr. Elias stood up, stumbled to Mr. Baylis and grabbed onto him in a hugging motion. Mr. Baylis pushed Mr. Elias back and hit him in the face. Mr. Elias went down again. He ended up sitting on the floor by the kitchen table leg.

[20] The owner of trailer number 9, Mr. Pare, kept baseball bats handy for protection. He had one located by the fridge leaning against the wall. Mr. Baylis told Mr. Elias that he would kill him. He picked up the baseball bat and, using a motion Mr. Bristol described as a golf swing, swung it into Mr. Elias’ head. Mr. Bristol described the blow as causing Mr. Elias’ hair to raise up from his head on the opposite side.

[21] After the blow, Mr. Baylis and Robin Baylis left the trailer. Mr. Elias went to the bathroom and hid in the shower. Mr. Jeffs regained consciousness. Mr. Bristol told Mr. Jeffs and Mr. Elias to leave and guided them out the back door of the trailer. Then Mr. Bristol tried to help Ms. Doughty clean the trailer. There was blood on the carpets and on the floor. At some point, Mr. Jeffs came back into the trailer. Mr. Bristol escorted him outside again and the two of them found Mr. Elias lying on the grass, awake but not coherent. Mr. Bristol picked Mr. Elias up and took him onto his own front porch at the trailer next door.

[22] Mr. Bristol said that there was blood all over Mr. Elias’ head and face. According to Mr. Bristol, he wanted to call an ambulance and Mr. Jeffs told him not to as he was wanted for fraud in Toronto. According to Mr. Jeffs, Mr. Jeffs wanted to call an ambulance but Mr. Elias told him not to. In any event, an ambulance was not called. Mr. Bristol asked Mr. Elias for his name and address and he was able to answer the questions. At this point, Mr. Pare returned home from work and pulled into his driveway. Mr. Bristol asked Mr. Pare to drive Mr. Jeffs and Mr. Elias home.

Evidence of the Accused

[23] Mr. Baylis was 40 years old at the time of trial. He resides in Harrow with his father. Robin Baylis and Brittney Baylis are his younger sisters. Brittney lived in the trailer park at the time of the incident.

[24] In September 2015, Mr. Baylis attended at the trailer park approximately two times a week to visit both his sister Brittney and everyone else in the park. He took part in what he described as “trailer hopping”. He described that to mean visiting from trailer to trailer while drinking and ingesting drugs.

[25] Mr. Baylis knew Mr. Bristol. He had met Mr. Jeffs on one prior occasion. He had not met Mr. Elias before the date of the incident.

[26] Mr. Baylis admitted to being a drug user in 2015. He also admitted to being a drug dealer in 2015. He knew Mr. Bristol to be a drug user. He said he, at some point, stopped dealing with Mr. Bristol when he witnessed Mr. Bristol injecting cocaine. According to Mr. Baylis, injecting drugs with syringes is on a “different level” than other methods of use.

[27] The one prior occasion that Mr. Baylis met Mr. Jeffs was at his sister Brittney’s trailer. Mr. Jeffs had been drinking. Mr. Baylis described him as “obnoxious” and “aggressive”.

[28] On September 18, 2015, Mr. Baylis attended at the trailer park with Robin. They went to Brittney’s trailer. Brittney was not at home. They went to Mr. Pare’s trailer to “stop by and have a beer”. When he entered Mr. Pare’s trailer, Mr. Jeffs, Mr. Bristol, Mr. Elias and Ms. Doughty were all in attendance. The males were in the kitchen area, speaking loudly about an iPhone or iPad. All of the males appeared to be very intoxicated. Drugs were on the kitchen table.

[29] Mr. Baylis said that Mr. Jeffs confronted him. Mr. Baylis was standing in the kitchen by the table at the time. He said that Mr. Jeffs called him a derogatory, racist name and told him to “go back to Harrow”. Mr. Baylis described Mr. Jeffs as “very aggressive”. Mr. Jeffs grabbed Mr. Baylis by the shirt and shoved him. Mr. Baylis responded with a punch. The physical altercation was over within seconds.

[30] After Mr. Jeffs was on the floor, Mr. Baylis said that Mr. Elias wrapped his arms around his back in a bear hug. He said that he, Mr. Jeffs and Mr. Elias all ended up on the floor. Mr. Bristol was by his leg, holding Robin and pulling on his pant leg. Mr. Baylis said he was hit four or five times. He grabbed something on the floor and swung it behind him. He did not see what it was. It may have been a bat. He made contact with something, and left the trailer.

[31] Mr. Baylis said that he had his eyes closed after he was punched. He said the altercation “all happened in a flash”. Mr. Baylis repeated the motion he made with the bat in his hands. It was a swinging motion from his chest out. He said that Mr. Elias was behind him and he “connected with something”. He said “I guess (Mr. Elias) got hit with a bat”.

[32] Mr. Baylis denies hitting Mr. Elias with his fists. He denies kicking him. He denies stomping on his head. He claims not to have caused the laceration on Mr. Elias’ chin. He claims not to have caused the fracture of the orbital bone. He has no idea how Mr. Elias sustained injuries to his face.

[33] Mr. Baylis denies receiving a call from either of his sisters to the effect that Mr. Jeffs was looking to purchase some cocaine. He denies selling cocaine that night.

[34] After Mr. Baylis hit Mr. Elias with the bat, he left with his sister, Robin.

[35] Mr. Baylis has a criminal record. He has been convicted of offences on two occasions in Youth Court. His first offence as an adult took place in 1996 when he was convicted of several offences including assault causing bodily harm. He has several property offences, numerous breach offences, two drug offences, and a weapons offence. In 2000 he was convicted of break and enter for which he received a sentence of six months. In 2003 he was convicted of assault. In 2008 he was convicted of assault. In 2017 he was convicted of resisting a peace officer. The longest period of incarceration for Mr. Baylis was 231 days for a counterfeit offence.

[36] Mr. Baylis’ criminal record, as well as the criminal records of all of the other witnesses, can only be used for credibility purposes. Mr. Baylis’ record has no relevance to the issue of whether he committed the offences he is charged with on the indictment now before the court.

Forensic Evidence

[37] Additional evidence was called by the Crown in the form of a forensic report presented by police Officer Mark Lancaster. Officer Lancaster attended at the Kingsville trailer park on October 9, 2015, with Constable Primeau. They examined trailer number 9 with the consent of its owner, Mr. Pare. They swabbed what appeared to be blood stains on the living room wall, on a blanket, on a table and on a baseball bat then located in the trailer. They swabbed what appeared to be blood stains on a table/magazine rack located beside the sofa. The swabs were sent to the Centre of Forensic Sciences for examination.

[38] The notable conclusion of the Centre of Forensic Sciences was that there were blood stains on the table adjacent to the sofa. The stains were on the inside of the table that, in the photos provided, was situated next to the sofa, with the outside of the table being the magazine rack. The blood was determined to have come from Mr. Elias.

Mr. Elias’ Injuries

[39] All of the witnesses described Mr. Elias as beat up and bloodied. Mr. Pare drove Mr. Jeffs and Mr. Elias to Mr. Jeffs’ home. They went to bed without waking Mr. Jeffs’ grandmother. When Mr. Elias woke up the next morning, he had double vision. He tried to drink some water, but the water poured through a cut on his lip. He vomited. Mr. Jeffs’ grandmother took them to the hospital. On examination, the doctor said it was serious and Mr. Elias’ parents were called.

[40] A brief of medical reports for Mr. Elias was filed as an exhibit at trial. Mr. Elias suffered a depressed fracture on the right side of his head with subdural hematoma, brain contusion and an intracerebral bleed causing a significant midline shift. The injuries were listed in the medical report as follows:

• Subdural hematoma.
• Subarachnoid bleed.
• Parenchymal hemorrhage.
• Right parietal bone fracture.
• Right frontal bone fracture.
• Right temporal bone fracture.
• Maxillary sinus fracture.
• Concussion.

[41] In addition, Mr. Elias had a fracture of a tooth on the right side of his mouth.

[42] Mr. Elias underwent a craniotomy to have the depressed skull fracture elevated. The subdural hematoma was removed. Some of the fragmented skull had been embedded in the dura causing a laceration of the brain.

[43] In addition to the skull fracture, Mr. Elias had multiple facial bruising and bruising on his head. His orbital bone was fractured. He had a fracture of the posterior lateral wall of the left maxillary sinus. He had multiple bruises around his face and eyes. He had a significant cut on his chin underneath the left side of his bottom lip requiring eight stitches.

[44] Mr. Elias was in the hospital for approximately three to four months.

[45] The photos of Mr. Elias, taken after his surgery and while he was in hospital, show numerous staples in a semicircle across the right side of his head. Both of his eyes are blackened, with his right eye significantly worse. There is bruising and scrapes on his face. There is a substantial cut that had been sutured on the left side of his chin. Mr. Elias clearly suffered injuries to both sides of his face and a significant head injury on the right side of his head.

[46] Mr. Elias was asked to describe the difference in his abilities before and after the incident. He described it as “night and day”. He now has a significant decline in his short term memory. His word delivery is poor. He has trouble speaking clearly. He suffers from throbbing pain in his head. His ability to function day to day is impaired. He cannot live on his own. He cannot perform many common tasks.

The Baseball Bat

[47] The day after the first gathering, Officer Primeau attended at the trailer park and spoke to Mr. Bristol. The injuries to Mr. Elias had been reported to the police and Officer Primeau wanted to know what happened. Mr. Bristol told him he knew but he could not talk. According to Mr. Bristol, he would not tell Officer Primeau what had happened because he was afraid of Mr. Baylis. According to Mr. Bristol, police attended at the trailer park and approached him more than once requesting his evidence as to what occurred in the first gathering. He refused to cooperate until Mr. Baylis assaulted him at the second gathering, described below.

[48] There is contradictory evidence about what happened with the baseball bat. According to Mr. Bristol, he burned the baseball bat in his fire pit. He said he burned the bat as Mr. Reeb had been talking about the bat. He said he burned the bat because he was afraid if he did not, Mr. Baylis would harm him. He said that Mr. Baylis told him if he did not get rid of the bat, he could be in the bottom of Lake Erie. He said that Mr. Baylis choked him when he made the threat. He said that Mr. Reeb had taken the bat, he asked Mr. Reeb for it, Mr. Reeb returned it and he burned it in his fire pit.

[49] Mr. Reeb gave evidence on events that occurred subsequent to the altercation. He was at the first gathering but left before the altercation. He went back to trailer number 9 after the altercation to see if Mr. Pare was home. Mr. Bristol and Ms. Doughty were there. The others had all left. Mr. Reeb was given a description of the events that had just taken place by Mr. Bristol and Ms. Doughty. Mr. Bristol told Mr. Reeb to get the bat out of the house. Mr. Reeb took the bat and put it in his friend’s backyard. He told Mr. Bristol where it was. The next day, Mr. Bristol told Mr. Reeb that he had burned the bat.

[50] Mr. Pare, the owner of trailer number 9, also gave evidence on his involvement in events following the altercation. He arrived home immediately after the altercation and took Mr. Jeffs and Mr. Elias to Mr. Jeffs’ home. Mr. Pare said that he has three or four baseball bats. He keeps one by the door, one in the bedroom and the others in a spare room or in the shed. He keeps the bats for self defence. When he returned after taking Mr. Jeffs and Mr. Elias home, the bat that was in the kitchen was gone. Mr. Bristol had taken it but later returned it. Mr. Bristol returned the bat when Mr. Pare told him the police were coming to search his trailer. When Mr. Pare was asked if all the baseball bats were accounted for, he said he did not really know.

[51] Police officers had contacted Mr. Pare the next day and asked to look through the trailer. He cooperated with their request. A baseball bat was seized from inside of the trailer. None of the witnesses could confirm if the baseball bat seized was the actual baseball bat used by Mr. Baylis at the first gathering. Forensic evidence confirmed the existence of blood on the bat but the DNA did not match with that of Mr. Jeffs or Mr. Elias.

The July 3, 2016 Gathering

[52] The second gathering on July 3, 2016, was a gathering that took place in Mr. Bristol’s trailer, trailer number 8. In attendance at the gathering were a group of neighbourhood teenagers, including Joshua Pare, Kevin Pare’s son. Mr. Bristol allowed the neighbourhood teenagers to spend time in his trailer drinking alcohol and playing video games. Joshua Pare gave evidence. According to Joshua, the teenagers were also “smoking weed”. Mr. Bristol and all of the teenagers had been drinking and smoking marijuana at the second gathering.

[53] Joshua was 17 years old when he gave his evidence. He was 15 years old at the time of the gathering. He had been drinking and smoking marijuana. Nonetheless, he gave his evidence in a straightforward manner. He was not contradicted on cross-examination. I prefer Joshua’s evidence on the events that occurred at the second gathering.

[54] Earlier in that day, Joshua said that he had seen Mr. Baylis at Mr. Bristol’s trailer. Mr. Baylis was known to Joshua. Joshua had seen Mr. Baylis in the trailer park on previous occasions. According to Joshua, Mr. Baylis had offered $1,000 to any of the neighbourhood teenagers to “go punch out a guy”. None of the teenagers took the money.

[55] Later on the same day, the teenagers were in Mr. Bristol’s trailer playing video games, drinking alcohol and smoking marijuana. Police attended at approximately 10:00 p.m. in response to an anonymous complaint about the teenagers shooting pellet and/or BB guns in the trailer park. The police confiscated pellet and/or BB guns and left.

[56] About a half an hour after the police left, the teenagers and Mr. Bristol were in the back bedroom of the trailer, where the television and video console were located. The teenagers had told Mr. Bristol that they were wary of Mr. Baylis. They relayed what had happened earlier in the day. According to Joshua, Mr. Bristol started to talk negatively about Mr. Baylis. Unbeknownst to both Mr. Bristol and the teenagers, Mr. Baylis had come into the trailer looking for his wallet and overheard the conversation.

[57] According to Joshua, Mr. Baylis came into the room angry with what was being said about him. Mr. Baylis took a beer bottle and hit Mr. Bristol over the head with it three times. According to Joshua, Mr. Bristol just took the beating. He did not defend himself. Mr. Baylis then took two beer bottles, smashed them together, held out the broken bottles to the group in a threatening gesture and then left.

[58] According to Mr. Bristol, Mr. Baylis punched him, kicked him in the throat and hit them over the head with a beer bottle.

[59] Mr. Baylis had a different description of the altercation. He said he entered the trailer looking for his wallet and phone. He brushed by Mr. Bristol and Mr. Bristol pushed him with his chest out and his shoulders back. Mr. Bristol walked away and he followed. He said that Mr. Bristol was the first to make contact. He said he moved to strike Mr. Bristol, who happened to be holding a beer bottle in his hand. He said that Mr. Bristol went to block the blow and got hit with the beer bottle.

[60] Mr. Bristol said he sustained a cut on his head, a black eye and could not move his jaw for a long time. Photographs of Mr. Bristol’s injuries were filed as an exhibit. He clearly suffered a laceration on the side of his head and the side of his face and neck were bloodied.

[61] After Mr. Baylis hit Mr. Bristol with a beer bottle, Mr. Bristol reported the matter to police and told them what had happened to Mr. Elias the year before in trailer number 9.

Criminal Records

[62] All of the Crown witnesses that gave evidence on the first gathering have criminal records.

[63] Mr. Jeffs has a record dating back to 2009. The record is comprised of several driving offences, including impaired driving, several offences of failure to comply with conditions of undertaking and probation orders, one offence of uttering threats and one offence of criminal harassment. The longest sentence Mr. Jeffs received was 80 days served intermittently.

[64] Mr. Bristol’s first offence was in 1998 for theft. He has numerous breach offences, several drug offences and several property offences. In 2007, Mr. Bristol was convicted of uttering threats. In 2002 Mr. Bristol was convicted of break and enter and theft for which he received a sentence of 110 days.

[65] Mr. Elias has a criminal record consisting of a series of convictions dated December 11, 2013. They include identity theft, fraud and use of forged documents. He served 160 days presentence custody and received an additional sentence of three months incarceration and 24 months probation.

[66] These witnesses, and particularly Mr. Elias who has convictions involving dishonesty, can all be described as “disreputable witnesses of demonstrated moral lack” as identified in Vetrovec v. The Queen, [1982] 1 S.C.R. 811. In addition, all three of these witnesses were very impaired the night of the first gathering, and Mr. Bristol was very impaired the night of the second gathering. Their evidence requires special scrutiny. It is dangerous to convict Mr. Baylis on the basis of the evidence of these witnesses without corroboration.

Analysis

[67] Counts 1 and 2 are alleged to have occurred at the first gathering. I will deal with those two counts together. Counts 3, 4 and 5 are alleged to have occurred after the first gathering and before December 25, 2015. I will deal with those three counts together. Count 6 is alleged to have occurred on July 3, 2016. I will deal with that count separately.

Counts 1 and 2

[68] Mr. Baylis gave evidence and I therefore must apply the analysis in R. v. W.(D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397. Mr. Baylis claims to have been the victim. He claims to have punched Mr. Jeffs only after Mr. Jeffs called him an insulting name, grabbed him and shoved him into a table. He claims that he punched Mr. Jeffs and Mr. Jeffs punched back. Mr. Baylis described the scuffle with three men, namely Mr. Jeffs, Mr. Elias and Mr. Bristol. He claims these three men were assaulting him and Mr. Baylis describes attempting to free himself from the situation. He describes grabbing the bat, swinging it behind him and making contact in a gesture of self defence. He acknowledges that the bat must have hit Mr. Elias.

[69] If I believe Mr. Baylis’ evidence, specifically that he was the victim, did not knock Mr. Jeffs unconscious and swung the bat that hit Mr. Elias in self defence, that I must find him not guilty. If I am unable to decide whether to believe Mr. Baylis or the other three gentlemen, I must find Mr. Baylis not guilty because the Crown would have failed to prove Mr. Baylis’ guilt beyond a reasonable doubt. Even if I do not believe Mr. Baylis’ evidence, if it leaves me with a reasonable doubt about an essential element of one of the two offences, I must find him not guilty of that offence. Lastly, if Mr. Baylis’ evidence itself does not leave me with a reasonable doubt, but the rest of the evidence that I do accept does not prove his guilt beyond a reasonable doubt that I must acquit.

[70] Mr. Bristol, Mr. Elias and Mr. Jeffs were all extremely intoxicated. They had all consumed copious amounts of alcohol and ingested cocaine and possibly other drugs the evening in question. The state of inebriation of the Crown witnesses must impact the reliability of their evidence.

[71] However, the evidence of all three Crown witnesses is consistent with each other. Mr. Jeffs acknowledged that he can be aggressive. He described himself as a “loudmouth” and acknowledged that he likely said something to instigate the altercation. He does not remember whether he made any physical motions towards Mr. Baylis. He remembers Mr. Baylis punching him in the face. He remembers Mr. Elias trying to protect him. He remembers Mr. Elias grabbing an ashtray. He remembers nothing else.

[72] Mr. Bristol said that Mr. Baylis punched Mr. Jeffs and “knocked him out of his sandals”. He said that Mr. Baylis knocked Mr. Jeffs unconscious. This evidence is consistent with that of Mr. Jeffs. The evidence of both gentlemen as to where Mr. Jeffs ended up lying on the carpet in the kitchen is consistent.

[73] Mr. Elias remembers little of the altercation. He remembers purchasing cocaine from Mr. Baylis. He remembers ingesting lines of cocaine at the table. He remembers Mr. Jeffs being on the ground in front of the fridge on the carpet, the same location noted by Mr. Bristol and Mr. Jeffs. He remembers little else.

[74] Mr. Bristol was the only Crown witness who was conscious for the entire altercation. His evidence is consistent with the recollections of both Mr. Jeffs and Mr. Elias. His 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. I accept his evidence, in spite of his state of inebriation. He was not in the fight; he was watching the fight and was in the best position to describe the events.

[75] The evidence of all three Crown witnesses and Mr. Baylis is consistent with there being an argument or a heated verbal exchange between Mr. Baylis and Mr. Jeffs. The evidence is consistent with Mr. Baylis telling Mr. Jeffs that he had an injured left hand and could not fight. I find as a fact that Mr. Baylis held out his left hand to show Mr. Jeffs his injury. When Mr. Jeffs went to look at his injury, Mr. Baylis punched him hard enough to knock him out.

[76] I accept Mr. Bristol’s account of Mr. Baylis’ attack on Mr. Elias. I find as a fact that Mr. Elias moved towards Mr. Baylis to assist Mr. Jeffs. He had an ashtray in his hand. He was upset about the attack on his friend and said something. Mr. Baylis then attacked Mr. Elias and beat him savagely. He punched him in the face and about the head. He kicked him and stomped on his head. This occurred in front of the sofa between the sofa and the coffee table causing Mr. Elias’ blood to spatter onto the interior of the end table next to the sofa. Mr. Elias made it to his feet and grabbed onto Mr. Baylis as though hugging him. Mr. Baylis pushed Mr. Elias off of him and Mr. Elias ended up sitting on the floor by the kitchen table. Mr. Baylis walked over to the baseball bat leaning up against the wall, picked it up and swung it into Mr. Elias’ head. This is what occurred.

[77] Mr. Elias’ injuries are consistent with a savage beating. Both eyes were blackened and he suffered a significant cut to the left side of his chin. The injuries are consistent with a blow to the head with an object such as a baseball bat with significant force. The injuries to Mr. Elias are consistent with Mr. Bristol’s description of the events. The injuries are not consistent with Mr. Baylis’ description of the events. As a matter of common sense, Mr. Elias would not have suffered the injuries described in the medical reports and depicted in the photographs had the events occurred as described by the accused.

[78] All three of the Crown witnesses to the first altercation are unsavoury witnesses. They all have criminal records. Mr. Elias has been convicted of crimes of dishonesty. All three of the Crown witnesses were very intoxicated after drinking alcohol and using cocaine at the time of the incident. However, their evidence is consistent with each other, with the forensic evidence and with the injuries suffered by Mr. Elias. I accept Mr. Bristol’s version of the events in spite of his shortcomings as a witness.

[79] On Count 1, I am satisfied beyond a reasonable doubt that Mr. Baylis assaulted Mr. Jeffs. He delivered a punch to Mr. Jeffs’ face of such a force that it knocked Mr. Jeffs unconscious. Turning to Count 2, in order to be found guilty of aggravated assault, I must be satisfied beyond a reasonable doubt that Mr. Baylis assaulted Mr. Elias and that the assault wounded, maimed, disfigured or endangered his life. As indicated above, I am satisfied beyond a reasonable doubt that Mr. Baylis assaulted Mr. Elias. The injuries described by Mr. Elias and in the medical reports are very serious. He was wounded; he was maimed; he was disfigured and his life was endangered.

Self Defence

[80] Mr. Baylis has put forth a defence of self defence. The Criminal Code, section 34(1) reads as follows:

34(1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

[81] Section 34(2) sets out factors the court must consider in determining whether the act committed is reasonable in the circumstances. They include, in pertinent part, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of altercation or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force.

[82] That defence raises the following questions:

a) Did Mr. Baylis believe, on reasonable grounds, that force was being used or threatened against him? b) Did Mr. Baylis do something for the purpose of defending or protecting himself? c) Was Mr. Baylis’ conduct reasonable in the circumstances?

[83] According to Mr. Baylis, he had seen Mr. Jeffs a couple of days prior to the first gathering at Brittney’s trailer. Mr. Jeffs was obnoxious, intoxicated and aggressive. Mr. Jeffs shoved him off of Brittney’s porch.

[84] Again according to Mr. Baylis, when he saw Mr. Jeffs at the first gathering, Mr. Jeffs called him a racist name and told him to go back to Harrow; Mr. Jeffs was aggressive; Mr. Jeffs grabbed his shirt and shoved him against a table. According to Mr. Baylis, the punch that knocked Mr. Jeffs unconscious was in response to this behaviour and out of fear of being attacked by Mr. Jeffs.

[85] When I consider Mr. Baylis’ evidence in respect of the assault on Mr. Jeffs within the W.(D.) analysis, I cannot say that Mr. Baylis’ claim of self defence is implausible. Mr. Jeffs is a relatively large, strong man. By all accounts, he is an aggressive person. According to Mr. Baylis, he knew Mr. Jeffs to be aggressive and had personal experience with that aggression. All of the evidence points to Mr. Jeffs starting the altercation. Mr. Jeffs admitted that he most likely said something offensive. Mr. Baylis said that it was a racial slur. Mr. Bristol said that Mr. Jeffs made the first movement toward Mr. Baylis. In the backdrop of Mr. Baylis’ history with Mr. Jeffs, and Mr. Baylis’ evidence of a racial slur, Mr. Baylis in my view had reasonable grounds to believe that Mr. Jeffs may use force against him. Mr. Baylis ensured that that would not happen by getting the first punch in, a punch that as it turned out rendered Mr. Jeffs unconscious.

[86] Given the foregoing, I find that Mr. Baylis is not guilty of Count 1.

[87] I must then address Mr. Baylis’ claim of self defence as it applies to Count 2. Mr. Baylis had never met Mr. Elias before that night. He did not know Mr. Elias to be an aggressive person. Mr. Elias is not a large or menacing person. Considering Mr. Baylis’ evidence of the altercation with Mr. Elias within the W.(D.) analysis, as indicated above, I do not accept Mr. Baylis’ version of events. I do not believe his evidence. Further, his evidence does not raise a reasonable doubt. I accept Mr. Bristol’s version of the events, including the savage beating of Mr. Elias. That evidence is consistent with the forensic evidence and the injuries sustained by Mr. Elias.

[88] I find that Mr. Elias did engage with Mr. Baylis. He was upset – his friend had just been knocked unconscious. He said something. He took a step towards Mr. Baylis, intending to defend Mr. Jeffs. He had an ashtray in his hand. Mr. Baylis punched Mr. Elias and Mr. Elias fell to the ground between the sofa and the coffee table. If the altercation had ended there, then it could be said that Mr. Baylis had acted in self defence. However, the altercation did not end there. Mr. Baylis continued to strike Mr. Elias with his fists. He kicked him with his feet. He stomped on his head. Mr. Elias, in an attempt to stop the beating, stood up and grabbed onto Mr. Baylis with his arms around his chest. Mr. Baylis pushed Mr. Elias and he was on the floor again. Mr. Baylis picked up the baseball bat. At that point, Mr. Baylis took the baseball bat and swung it into Mr. Elias’ head.

[89] After the first punch, when Mr. Elias was on the ground between the sofa and the coffee table, Mr. Baylis could easily have left the situation. The actions of Mr. Baylis following that first punch were not the actions of a man defending himself. They were the actions of an angry man beating another. The beating that took place after the first punch was not for the purpose of Mr. Baylis defending or protecting himself. It certainly was not reasonable in the circumstances.

[90] For these reasons, I find Mr. Baylis guilty of Count 2.

Counts 3, 4 and 5

[91] The evidence on the baseball bat is problematic for the Crown. The evidence of Mr. Bristol, Mr. Reeb and Mr. Pare is contradictory. Mr. Bristol said he burned the bat. Mr. Pare said Mr. Bristol returned the bat to him, but could not confirm that all of his bats were accounted for. The forensic evidence seems to suggest that Mr. Bristol did, indeed, burn the bat as Mr. Elias’ blood was not on the bat.

[92] There were no witnesses to either the threat that Mr Bristol said Mr. Baylis made, nor to the choking incident.

[93] Mr. Baylis denies making any threats. He denies telling Mr. Bristol to dispose of the baseball bat.

[94] Given the inconsistencies in the evidence, I cannot find beyond a reasonable doubt that Mr. Baylis threatened Mr. Bristol. I cannot find beyond a reasonable doubt that Mr. Baylis committed an assault on Mr. Bristol by choking him. I cannot find beyond a reasonable doubt that Mr. Baylis obstructed justice by threatening witnesses and compelling them to destroy evidence.

[95] Accordingly, I find Mr. Baylis not guilty of Counts 3, 4 and 5.

Count 6

[96] 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. That evidence is implausible and does not have the ring of truth to it. I accept Joshua’s evidence that Mr. Baylis was angry when he heard Mr. Bristol talking about him; Mr. Baylis went into the bedroom; Mr. Baylis picked up a beer bottle and hit Mr. Bristol over the head with it three times.

[97] For these reasons, I find Mr. Baylis guilty of Count 6.

Disposition

[98] For the foregoing reasons, I find as follows:

1. On Count 1, I find Mr. Baylis not guilty.
2. On Count 2, I find Mr. Baylis guilty of committing an aggravated assault on Anthony Elias, contrary to section 268 of the Criminal Code.
3. On Count 3, I find Mr. Baylis not guilty.
4. On Count 4, I find Mr. Baylis not guilty.
5. On Count 5. I find Mr. Baylis not guilty.
6. On Count 6, I find Mr. Baylis guilty of committing an assault on Kenneth Bristol with a weapon, namely a beer bottle, contrary to section 267 of the Criminal Code.

Original signed by Justice Pamela L. Hebner Pamela L. Hebner Justice Released: Oral decision – January 14, 2018