



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Baylis, 2022 ONCA 41

DATE: 20220121

DOCKET: C68433

Feldman, MacPherson and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Baylis

Appellant

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. Eliass 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
    appellants 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 judges 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.


