



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Baylis, 2021 ONCA 637

DATE: 20210921

DOCKET: C67787

Hoy, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Baylis

Appellant

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 someones 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 appellants 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 appellants 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 Bristols 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. Bristols 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. Bristols 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. Bristols 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 Joshuas 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.

Joshuas 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. Bristols evidence. It is
    consistent with Mr. Bristols 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 judges 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 judges ultimate findings across
    all counts in the indictment, resulting in the appellants 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.


