



COURT OF APPEAL FOR
BRITISH COLUMBIA




Citation:



R. v. Baigent,









2013 BCCA 28




Date: 20130118

Docket: CA039876

Between:

Regina

Appellant

And

Lee Parker Baigent

Respondent




Before:



The Honourable Chief Justice Finch





The Honourable Mr. Justice Chiasson





The Honourable Madam Justice A. MacKenzie




On appeal from:
Provincial Court of British Columbia, March 26, 2012
(
R. v. Baigent
, Dawson Creek Registry No. 29816-2-C)

Oral Reasons for Judgment




Counsel for the Appellant:



O.S. Kuzum, Q.C.





Counsel for the Respondent:



C. Bauman





Place and Date of Hearing:



Vancouver, British
  Columbia

January 18, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 18, 2013








[1]

MACKENZIE J.A.
:
The
Crown appeals the acquittal of Lee Parker Baigent on March 26, 2012, by Judge
Bowry of the Provincial Court of British Columbia of the aggravated assault of
Timothy Pilkey.

[2]

The charge arose as a
result of an altercation between the two men at a house party in Tumbler Ridge
on November 8, 2009, during which Mr. Pilkey sustained serious injuries to his
left eye and cuts to his neck and cheek. At trial, Mr. Pilkey and several other
young people present at the party testified, as did two police officers called
to the scene. Mr. Pilkey testified that he had a conversation with Mr. Baigent,
he made a joke, and then he saw the shadow of Mr. Baigents arm coming towards
him before he felt an object, a bottle or a glass, strike his face. Although in
his initial statements to the police, Mr. Pilkey said Mr. Baigent bottled him
in the face, he testified he did not see what the object was; he assumed it was
a bottle or a glass because that is what he was told when he asked what had
happened. Mr. Pilkey also said he did not strike Mr. Baigent. There was
evidence Mr. Pilkey was intoxicated on the night of the altercation.

[3]

Although Mr. Baigent
did not testify, a statement he gave the police was admitted into evidence. Mr.
Baigent was arrested for aggravated assault at about 4:30 a.m., after he had
returned to his motel. In the statement he provided at the detachment, Mr.
Baigent said he was hit from behind or the side, he turned around, and swung at
the person, hitting someones face. Mr. Baigent also said he had an empty hand
when he swung.

[4]

The police officers who
were called to the scene testified they did not obtain a statement from Mr.
Pilkey that evening because of his high level of intoxication. No formal
statements were taken at that time from anyone else present at the party, as
everyone had been drinking and no one could clearly tell the officers what had
happened.

[5]

The Crowns case was
based entirely on circumstantial evidence. None of the witnesses, including Mr.
Pilkey himself, saw Mr. Baigent hit Mr. Pilkey with broken glass. However, it
is common ground, as the trial judge
found,
the
injuries were caused by broken glass or a broken mug. Witnesses heard glass
smashing and there was broken glass covering the floor where the two men were
when the altercation was stopped. Mr. Pilkey bled significantly. Mr. Baigent
was later found to have deep cuts on the back of his right thumb and on his
index finger, caused by broken glass.

[6]

The judge noted
credibility was an important issue in this case, and summarized the rule of
reasonable doubt as follows:

[6]       
As I have summarized previously in other cases,
R. v. W. (D.)
, [1991]
S.C.R. 741, Justice Cory at Paragraph 28 suggests an explanation on the issue
of credibility as follows: First, if you believe the evidence of the accused,
obviously you must acquit; second, if you do not believe the testimony of the
accused but you are left in reasonable doubt, you must acquit; third, even if
you are not left in doubt by the evidence of the accused, you must ask yourself
whether on the basis of the evidence which you do accept you are convinced
beyond a reasonable doubt of the evidence of the guilt of the accused.

[7]       
A fourth test has been added in
R. v. H. (C.W.)
, [1991] 68 C.C.C. (3d)
at 146 where Justice Wood suggested:

I would add
one more instruction in such cases, which logically ought to be second in the
order, namely, if, after a careful consideration of all of the evidence, you
are unable to decide whom to believe, you must acquit.

[7]

After considering the
whole of the evidence, the judge concluded she did not know whom to believe and
thus there was a reasonable doubt as to how the altercation started and whether
the force applied by Mr. Baigent caused Mr. Pilkeys injuries. In accordance
with the
W. (D.)
analysis, the judge acquitted Mr. Baigent.

[8]

The Crown appeals the
acquittal under s. 676(1)(a) of the
Criminal Code
, asserting a question
of law alone on the basis the trial judge erred in failing to consider the
totality of the circumstantial evidence in relation to the ultimate issue of
guilt or innocence. The Crown contends that had the trial judge properly
considered the entire body of evidence, the verdict would not necessarily have
been the same, and seeks a new trial.

[9]

Under s. 676(1
)(
a), the Attorney General has the right to appeal against
an acquittal on any ground of appeal that involves a question of law alone.
Thus, the Crowns right to appeal is limited to matters of law. Further, the
Crown must also demonstrate, with a reasonable degree of certainty, that the
verdict would not necessarily have been the same had the error not been made:
R.
v. Morin
, [1988] 2 S.C.R. 345 at 374, 44 C.C.C. (3d) 193.

[10]

In
R. v. J.M.H
, 2011 SCC 45,
[2011] 3 S.C.R. 197 at paras. 25-32, the Court identified a non-exhaustive list
of four situations under which a trial judges assessment of the evidence gives
rise to an error of law alone:

1.

It is an error of law to make
a finding of fact for which there is no evidence - however, a conclusion that
the trier of fact has a reasonable doubt is not a finding of fact for the
purpose of this rule;

2.

The legal effect of findings
of fact or of undisputed facts raises a question of law;

3.

An assessment of evidence
based on a wrong legal principle is an error of law; and

4.

The trial judges failure to
consider all of the evidence in relation to the ultimate issue of guilt or
innocence is an error of law.

[11]

With respect to the fourth error of
law, the Court in
J.M.H.
, at para.
31,
said the
underlying legal principle is that it is an error of law to subject individual
pieces of evidence to the standard of proof beyond a reasonable doubt; the
evidence must be looked at as a whole. The Court went on, at para. 32, to
confirm that while a trial judge must consider all the evidence in relation to
the ultimate issue of guilt, he or she is not required to refer to every item
of evidence considered; the reasons are sufficient if they are responsive to
the cases live issues and the parties key arguments.

[12]

The Crowns position is the trial
judge made the fourth error of law described in
J.M.H
.

Specifically
, the Crown says the trial judge engaged in a
W.
(D.)
analysis of the evidence without a proper consideration of the
totality of the evidence in relation to the ultimate issue of guilt or
innocence.

[13]

In support of its
position, the Crown appears to track the reasoning in
R. v. Rudge
, 2011
ONCA 791, 108 O.R. (3d) 161.
In
Rudge
, the Ontario Court of
Appeal allowed the Crowns appeal from an acquittal and ordered a new trial on
the grounds the trial judge considered each part of the Crowns case
separately, rather than considering the evidence as a whole. As the Crowns
case was built on the
totality
of the evidence, the result was the
persuasive effect of the totality of the evidence  the strength of the Crowns
case  was taken out of play (para. 66). The Court concluded this fell under
the fourth category of legal error described by Cromwell J. in
J.M.H
,
the failure to consider all of the evidence in relation to the ultimate issue
of guilt. The Court also found the judge erred by failing to take into account
several key individual pieces of evidence.

[14]

The Crown submits the trial judge in this case committed similar legal
errors as the judge in
Rudge
. First, the Crown says the judge failed to
consider the combined effect or totality of the evidence. The Crown argues that
considering the direct evidence from Mr. Pilkey that he was hit with an object
to his face after seeing Mr. Baigents arm coming toward him, combined with the
circumstantial evidence of broken glass and the trail of blood that followed
Mr. Baigent, the only reasonable inference was Mr. Baigent struck Mr. Pilkey in
the face with a glass bottle. The Crown acknowledges the judge was entitled to
weigh the evidence of Mr. Pilkeys state of intoxication, but says she was
required to do so within the context of all the evidence that confirmed Mr.
Pilkeys testimony.

[15]

Second, the Crown says although the judge extensively reviewed the
evidence, there were a number of errors and omissions as there were in
Rudge
.
In particular, the Crown submits the judge did not refer to the details of the
testimony of Jeff Lang, one of the partygoers, and failed to consider Mr.
Baigents state of intoxication at the time of the altercation and the passage
of time before Mr. Baigent provided his statement to the police. As in
Rudge
,
the Crown says the judges approach to the evidence amounted to an error in
law.

[16]

I respectfully disagree
with the Crowns submission that the judge in the present case made the same
errors as in
Rudge
. In contrast to
Rudge
,
the trial judge
considered the Crowns case as a whole. She referred to the totality of the
circumstances, including the statements of Mr. Baigent, Mr. Pilkeys testimony,
Mr. Pilkeys injuries, and the evidence of broken glass on the floor.
Ultimately, the judge was left with a reasonable doubt about what happened, as
no one observed Mr. Baigent striking Mr. Pilkey with a bottle, there was no
evidence as to whether Mr. Pilkey had a bottle in his hand (and therefore no
one could say with certainty who was holding the glass), there was no evidence
as to the source of the object that hit Mr. Pilkey, and there was evidence Mr.
Pilkey was intoxicated at the time of the altercation. The judge concluded, at
para. 61, 
On the whole of the evidence
I do not know whom to believe
(emphasis added).

[17]

As
in
J.M.H.
, there is no basis in the judges reasons to conclude she
looked at individual pieces of evidence out of context, rather than considering
the evidence in its totality.

[18]

Also unlike
Rudge
, the judge did not fail to take into account
key pieces of evidence. The judge did refer to the fact Mr. Baigent provided his
statement to the police at 5:31 a.m. on November 8, 2009, five and a half hours
after the altercation. Although the judge did not expressly mention or discuss
Mr. Baigents level of intoxication at the time the altercation occurred, one
can infer from the record she was clearly aware of the evidence of Mr.
Baigents intoxication, as Mr. Baigent himself said in his statement to the
police he was likely intoxicated and one of the witnesses testified he had too
many drinks to be driving.

[19]

Although the judge did not refer to every piece of evidence, the judges
reasons responded to the live issues of how the altercation started and how the
glass came into contact with Mr. Pilkeys face.

[20]

The judge extensively reviewed the circumstantial evidence and
considered whether she was satisfied, beyond a reasonable doubt, that the guilt
of the accused was the only reasonable inference to be drawn from the proven
facts:
R. v. Cooper
, [1978] 1 S.C.R. 860, 34 C.C.C. (2d) 18;
R. v.
Griffin
, 2009 SCC 28, [2009] 2 S.C.R. 42. The judge concluded she did not
know whom to believe and described other reasonable possibilities as to the
cause of Mr. Pilkeys injuries. Specifically, the judge suggested Mr. Pilkey
may have been cut by his own glass or both men may have been cut by glass while
they were on the floor. I find no error in the judges approach to the
evidence; the fact that a different judge may have reached a different
conclusion does not mean she was wrong in law.

[21]

In the result, I would dismiss the
appeal as an attempt by the Crown to appeal from an unreasonable acquittal
that cannot be supported by the evidence. Such an appeal is not open to the
Crown under s. 676(1
)(
a) as it does not arise from a
question of law alone, and exceeds the scope of appellate review.

[22]

FINCH C.J.B.C.
: I agree.

[23]

CHIASSON J.A.
: I agree.

[24]

FINCH C.J.B.C.
: The appeal is dismissed.

The
Honourable Madam Justice A. MacKenzie


