R. v. Baptiste

2013 BCCA 161 R. v. Baptiste

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Baptiste, 2013 BCCA 161 Date: 20130410 Docket: CA039388 Between: Regina Respondent And Wilfred Charles Baptiste Appellant Before: The Honourable Madam Justice Levine (In Chambers) On Appeal from the Supreme Court of British Columbia, (R. v. Baptiste, December 6, 2006 (unreported) Penticton Registry No. 33885-2 and R. v. Baptiste, August 1, 2008, 2008 BCSC 1041, Penticton Registry No. 33885-3) Counsel for the Appellant: J. Blazina Counsel for the Respondent: W.J.S. Bell Place and Date of Hearing: Vancouver, British Columbia March 8, 2013 Place and Date of Judgment: Vancouver, British Columbia April 10, 2013 Reasons for Judgment of the Honourable Madam Justice Levine: Introduction [1] The appellant, Wilfred Charles Baptiste, applies for an extension of time to file his notice of appeal and for the appointment of counsel to act for him on his appeal. [2] Mr. Baptiste was convicted of aggravated assault and robbery on December 8, 2006. On August 1, 2008, the trial judge found Mr. Baptiste to be a long-term offender, and sentenced him to 15 years in jail, less credit of six years for three years served before sentencing, followed by a long-term supervision order of ten years. [3] Mr. Baptiste filed a notice of appeal from both conviction and sentence on October 6, 2011, more than three years after the 30-day time limit following

sentencing. [4] On December 20, 2011, Madam Justice Garson made an order appointing counsel to assist Mr. Baptiste with these applications. [5] At the hearing of these applications, counsel's submissions focused on the reasons for the delay in filing the notice of appeal and the merits of the appeal. [6] Having considered the submissions and materials, I have concluded that it is in the interests of justice to extend the time to file the notice of appeal from sentence and to appoint counsel to act for Mr. Baptiste on his appeal from sentence, and I so order. Background The Convictions [7] The incident giving rise to the convictions for aggravated assault and robbery occurred on the night of July 15 or in the early morning of July 16, 2005, in a house on the Penticton Indian Reserve on the outskirts of Penticton. The victim, Mr. Hoover, had come to the house to buy cocaine. Over the course of the evening, he was badly beaten and robbed of his cash, the tools in his truck, and his necklace. [8] Two Crown witnesses testified concerning Mr. Baptiste's involvement in the beating. One of the witnesses described hearing a sound, from outside the room where the beating took place, like a board hitting a head, and the other witness said he saw the victim being struck with a board and a pipe and saw Mr. Baptiste hit the victim with a pipe. [9] The victim's tools were never found. His

wallet was found in a storage locker, his bank card was found in a garage on the property, and the necklace was given to the police by someone on the Reserve. [10] Other physical evidence adduced at trial consisted of a two inch by four inch length of wood and a metal pipe, both seized at the house by police some days after the incident. Forensic analysis of the board indicated the presence of "biological material" on one end which matched the victim's DNA, and blood on the other end that could not be matched to anyone. Blood on the end of the pipe and on the necklace was also matched to the victim's DNA. [11] The victim was found in his pickup truck in downtown Penticton on the morning of July 16, 2005. The Crown adduced video footage which showed the pickup truck pull up across the street from a bank about 7 a.m. and an unidentified person get out of the driver's seat and walk down the road. A taxi driver identified the appellant as a man he picked up shortly before 7 a.m. about two kilometers from the bank and drove to the Reserve. The man offered to pay the fare with a balled up necklace or bracelet he had in his bloody hand. The taxi driver identified the victim's necklace at trial. [12] The totality of the evidence convinced the trial judge of the appellant's guilt beyond a reasonable doubt and he found him guilty of both offences. Sentencing [13] Following the

conviction, the Crown applied to have the appellant declared a dangerous offender. The sentencing proceedings took place for four weeks in March and three days in May, 2008. [14] In his reasons for sentence, the trial judge reviewed in detail the evidence of the appellant's childhood and youth, and his lengthy criminal record. [15] The appellant grew up on the Reserve. The evidence describes his family as showing "major dysfunction" (at para. 19) and the appellant, at the age of five, moving back and forth between his mother and his grandmother's home (at para. 10). There was little discipline. The trial judge commented that the social workers' notes "provide some ongoing details of the chaotic and unregulated environments" in which the appellant grew up (at para. 13). At age seven, concerns were expressed by social workers about the appellant's behavior at school, and he was described as continuing "to run wild on the Reserve as he pleased" (at para. 10). At age nine, the appellant's misconduct at school involved truancy and theft, and by the age of 11 (grade five), he was no longer attending school (at para. 11). [16] From about the age of 11, the appellant was referred to various programs, placements, and treatments for his delinquent and anti-social behavior. Most of these were too restrictive for the appellant, who consistently "went AWOL" (at para. 23). From the age of

12, he was subject to the Young Offender's Act and later the Criminal Code, and has a lengthy record of offences as a youth, primarily for theft. [17] According to the Crown's submissions on these applications, as an adult the appellant had a record of 28 convictions before these convictions, primarily for property related offences and breaches of court orders. He had three convictions for possession of controlled substances, two convictions for robbery, and one conviction for assault causing bodily harm. None of these offences involved serious violence. [18] At the sentencing hearing, the appellant admitted certain facts about his involvement in an assault in January 2005, which left the victim (Mr. McNally) with "a traumatic brain injury and a resulting permanent mental disability" (at para. 174). No charges were laid and no convictions resulted from the McNally incident. [19] The trial judge ordered a risk assessment of the appellant by Dr. David Lawson. The appellant refused to be interviewed by Dr. Lawson, who prepared the risk assessment based on the "wealth of information" available about the appellant's social and criminal history. Dr. Lawson "believed these gave him a sufficient basis 'to get a good sense with respect to risk'" (at para. 184). Dr. Lawson concluded (quoted at para. 202): In summary, the results of the actuarial and clinical assessments of risks of

violent recidivism agree in that both place Mr. Baptiste at high risk. The caveat however is that the clinical assessment is incomplete in the absence of information obtained in the course of a clinical interview. [20] After reviewing the evidence and the relevant statutory provisions and authorities on the principles of sentencing dangerous and long-term offenders, the trial judge noted that the appellant's criminal record, until the beatings of Mr. McNally and Mr. Hoover, showed an "arguably low level of violence". He commented that prior to these incidents the appellant "could not have been regarded as likely to be designated a dangerous offender" (at para. 254). Those two incidents, however, were "an unexplained escalation of his offending to include the gratuitous and apparently unprovoked use of severe violence", which "coupled with the fact that he was unlawfully at large and in breach of his parole order on both occasions, makes him a viable candidate for a dangerous offender designation, particularly when viewed in light of his history of relentless offending" (at para. 254). [21] The trial judge concluded that the appellant met the statutory criteria for a dangerous offender, finding that "the Hoover and McNally attacks, when taken in context of the offender's lengthy history of impulsive criminal conduct, meet both the criteria under s. 753(1)(a)(i) and

753(1)(a)(ii)" (at para. 268). He found the pattern required by those subsections can be established by as few as two offences (at para. 268), and (at para. 269): I am satisfied that the McNally and Hoover attacks, in light of the accused's long history of impulsive criminal conduct, meet the criteria of being a pattern of repetitive behaviour, showing a failure to restrain behaviour, and a pattern of persistent aggressive behaviour, showing a substantial degree of indifference, respecting the reasonably foreseeable consequences to other persons. The McNally and Hoover attacks, given their similarity and the determination with which they were pursued, also show a future likelihood of causing death or injury through a similar future failure of the offender to restrain his behaviour. [22] The trial judge then considered whether the "goal of protection of the public under the sentencing regime in the Criminal Code can be met by finding the offender to be a long-term offender", rather than a dangerous offender (at para. 273). He described the appellant's offences, other than the McNally and Hoover incidents, as "impulsive and unorganized, but do not have significant violence woven into them" (at para. 279). The McNally and Hoover "attacks" were different "in their use of violence and their severity [but] were not a product of premeditated organized behavior" (at para. 279). [23] He

concluded that "although Mr. Baptiste presently represents a high risk to re-offend, the nature and severity of his risk eventually can be sufficiently contained within the community to justify a long-term offender designation" (at para. 295). [24] The trial judge sentenced the appellant to 15 years in jail, less a credit of six years for three years in custody before sentencing, and ordered that he must serve one-half of his sentence before he is released on parole (at para. 298). In addition, he ordered a long-term supervision order of ten years (at para. 299). Grounds of Appeal [25] The Crown summarized the appellant's grounds of appeal as presented on these applications as follows: (a) missapprehension of evidence that raises the validity of the conviction; (b) misapprehension of evidence that raises the validity of the sentence; and (c) error by the trial judge in determining that the statutory criteria for declaring the applicant a long-term offender had been met. Principles Applicable to Extending Time to Appeal [26] Under s. 678(2) of the Code, a judge of the court of appeal may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given. [27] In R. v. Smith (1990), 11 W.C.B. (2d) 445 (B.C.C.A.), [1990] B.C.J. No. 2933, the Court said that the "governing principle on which this Court acts on applications to

extend time for doing an act is that the applicant must establish special circumstances" (at para. 4 (QL)). In considering whether there are special circumstances, the Court takes into account such factors as whether the applicant had a bona fide intention to appeal before the expiration of the date for filing the appeal; whether the applicant informed the respondent of this intention; whether the respondent would be unduly prejudiced by an extension of time; whether there are reasonably arguable grounds of appeal; whether it is in the interests of justice, that is, the interests of the parties, to grant the extension. The weight given to any of these factors will depend on the circumstances of each case (at para. 5 (QL). Principles Applicable to Appointment of Counsel [28] Under s. 684(1) of the Code, a judge of the court of appeal may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal where it appears desirable in the interests of justice that the accused should have legal assistance, and where it appears the accused does not have sufficient means to obtain that assistance. [29] The current Practice Directive of the Court (Applications for a Court-Appointed Lawyer Under Section 684 of the Criminal Code (Criminal Practice Directive, 19 September 2011)), directs that applicants should be able to show that they cannot afford to retain counsel

for the appeal, and they applied for legal aid and were refused. [30] The factors the Court considers in determining whether the appointment of counsel is in the interests of justice include: the points to be argued on appeal; the complexity of the case; any point of general importance in the appeal; the appellant's competency to present the appeal; the need for counsel to find facts, research law or make argument, the nature and extent of the penalty imposed; and the merits of the appeal (International Forest Products Ltd. v. Wolfe, 2001 BCCA 632 at para. 6). Issues on These Applications [31] Crown counsel takes issue with the appellant's application for an extension of time to file his notice of appeal on the grounds that the appellant has not shown that his intention to appeal was bona fide and not abandoned, and that his appeal has little or no merit. The Crown says that the lack of merit of the appeal similarly undermines the application for appointment of counsel. Application for Extension of Time Circumstances of Delay [32] The appellant clearly showed an intention to appeal his conviction and sentence before the expiration of the 30-day time limit for appeal following his sentencing. Records of the Legal Services Society show that he telephoned LSS on August 27, 2008 to apply for legal aid, and after providing information to LSS, he was refused twice in October 2008.

LSS's records show that on October 31, 2008, it sent the appellant its booklet on How to Appeal Your Conviction. [33] The appellant gave no further notice of his intention to appeal until his notice of appeal was filed October 6, 2011, three years later. On the same day, he applied for the appointment of counsel to assist him in his appeal. [34] The appellant's explanation for the delay is that after he was refused legal aid in October 2008, he was unable to proceed without assistance and after that none was available to him in prison. He deposes that in 2008 he was assisted in applying for legal aid by Ms. Caroline Buckshot, an Aboriginal Liaison Officer at Pacific Institution. He states that he recalls being advised by LSS to contact the First Nations Legal Clinic in Vancouver to see if it could help him, and that he believes that he and Ms. Buckshot attempted to do so without result. He later learned the clinic had closed down. [35] Shortly after October 2008, the appellant was transferred to Kent Institution. In the move, the paperwork he had relating to his appeal was lost. At Kent Institution, he spent time in segregation where he could not work on his appeal. Nor could he find anyone to assist him. Finally, in July 2011, Mr. David Jolivet, a paralegal, arrived at Kent and began assisting the appellant with his appeal. Mr. Jolivet wrote on the appellant's behalf to LSS to

reapply for legal aid, which was again refused. Mr. Jolivet then prepared and filed with the Court the appellant's notice of appeal, these applications, and the appellant's supporting affidavits. [36] The appellant deposes that in October 2008, he was illiterate and could not read or write well. He could not understand the rules and procedures of Court, nor the letters and information received from LSS. He has since worked to improve his reading and writing and today can do so at a basic level, but has difficulty learning. [37] In December 2011, Madam Justice Garson appointed counsel to assist the appellant with these applications. Prejudice to the Crown Respondent [38] Crown counsel says that the Crown would be prejudiced if the appellant's appeal from conviction was successful and a new trial ordered. While the witnesses called at trial may be available, their memories of events that occurred in July 2005 will have faded. [39] Appellant's counsel acknowledged the difficulty of re-trying the appellant because of the inevitable loss of memory of witnesses after so much time has gone by. He advised the Court, however, that the original exhibits for both conviction and sentencing proceedings are still in existence. He pointed out that most of the evidence at the sentencing hearing was historical reports and assessments that exist in documentary form. Merits of the Appeal [40] An

assessment of the merits of the appeal is relevant to both applications. Appeal from Conviction [41] The appellant claims the trial judge "misappreciated" certain of the evidence, resulting in an unsafe verdict. In particular, the appellant says the trial judge erred in describing the forensic evidence found on the two-by-four; in relying on the testimony of a witness that he heard the appellant demand money before hitting the victim with a board; and by failing to note limitations on the evidence of police officers with respect to the nature and quality of stains they identified at various locations in the house. [42] The Crown acknowledges that the trial judge misdescribed the forensic evidence on the two-by-four. The trial judge said there appeared to be blood on both ends, and one end consisted of blood that matched the victims's. The evidence was that there was blood on one end but the DNA could not be identified as the victim's, and there was "biological material" on the other end with the DNA of the victim. Crown counsel maintains this was a technical error that would not affect the outcome of the trial, and the appellant has not shown any other reviewable error in the trial judge's fact-finding or reasoning. Appeal from Sentence [43] The appellant claims the trial judge misapprehended the evidence of the McNally incident. He says that the admitted facts do not support a

conclusion that the attack on McNally involved a robbery, as referred to by the trial judge (at paras. 176 and 254). Because the trial judge found that the similarity between the McNally and Hoover incidents established the requisite pattern to satisfy the statutory criteria for a dangerous offender, the appellant argues that this misapprehension calls into question the validity of that finding. [44] The appellant also claims that the trial judge erred in relying on his "lengthy history of criminal conduct" in deciding there was a relevant pattern of conduct, and in finding on the evidence that his conduct satisfied both patterns of conduct described in s. 753(1)(a)(i) and (ii) of the Code. The appellant says the appellant's previous criminal conduct did not involve a serious level of violence or injury and was therefore irrelevant to establishing the requisite pattern. He says the finding that his conduct showed a pattern of repetitive behavior, as required by s. 753(1)(a)(i), is called into question by the misapprehension of the evidence of the McNally incident, and the finding that his conduct showed a pattern of persistent aggressive behavior, as required by s. 753(1)(a)(ii), was not established on the evidence. [45] Crown counsel says that if the trial judge misdescribed the McNally incident as a robbery, in other parts of his reasons for judgment he referred to both the

McNally and Hoover incidents as "attacks". He argues that this misdescription was not material to the outcome of the sentencing proceedings. [46] Crown counsel also disputes the appellant's claims that the trial judge erred in finding the requisite criteria for designating the appellant a long-term offender were established. He says the appellant's criminal record was relevant, two offences are sufficient to establish a pattern, and only one of the two statutory patterns had to be established. Analysis Delay [47] Crown counsel maintains that the appellant has not adequately explained the delay of three years between his initial contact with LSS and filing his notice of appeal. He expresses doubt about the appellant's claims that he was unable to understand what was required of him to proceed and to get assistance. He suggests that the proper inference to draw from the delay is that the appellant abandoned his initial intention to appeal, as the Court found in R. v. Rojas (1991), 13 W.C.B. (2d) 528 (B.C.C.A.), [1991] B.C.J. No. 2387 and R. v. McAvoy, 2005 BCCA 325. [48] Each of these applications is to be decided by the circumstances of the particular case. In this case, the appellant's claim to be functionally illiterate is amply supported by evidence adduced at his sentencing hearing. He misbehaved and was truant from school from the age of, at a minimum, seven, and left

school altogether at age 11. The record shows his early life was chaotic and unregulated, with little or no opportunity to learn. His claim to require assistance to deal with court proceedings is also supported by the evidence that when he initially applied for legal aid he had the assistance of an Aboriginal Liason Officer, but took no further steps to advance his appeal until he found someone to assist him at Kent Institution in 2011. After he received assistance, he proceeded to file these applications in a proper manner. The delay is further explained by the fact that when he was transferred to Kent Institution in 2008 his paperwork for his appeal went missing. [49] While the appellant's explanation of the three-year delay could be fuller, I am prepared to accept that throughout that period he continued to have an intention to appeal and that he was unable to proceed without assistance. Merits of the Appeal Appeal from Conviction [50] At the hearing of these applications, appellant's counsel wisely admitted that the grounds for appeal from conviction were not strong. The trial judge's misapprehension of the forensic evidence was, as the Crown contends, technical, and would not have affected the outcome. His assessment of the evidence of the police and other witnesses was peculiarly within his role as the trial judge, and the appellant has not identified any error that could

be described as "palpable and overriding". [51] In addition, the Crown would be prejudiced by being put in a position of having to re-try the appellant if his conviction appeal was successful. [52] It is in the interests of justice that the appellant's application to extend the time to file his appeal from conviction be dismissed. His application for appointment of counsel to assist in his conviction appeal is also, as a result, dismissed. Appeal from Sentence [53] The sentencing proceedings were long and complex. There was a great deal of evidence. The consequences for the appellant are severe. He has raised arguments that involve analysis of both fact and law. I cannot say that the appeal has no prospect of success. [54] I accept the appellant's explanation for the delay, that he cannot afford to retain counsel, and that he could not proceed with a sentence appeal without the assistance of counsel. It would not be in the interests of justice to end the appellant's sentence appeal by the decision of a single judge in chambers that it has no merit. [55] I grant the appellant's application to extend the time to file his notice of appeal from sentence, and order that counsel be appointed to act on his behalf on his sentence appeal. "The Honourable Madam Justice Levine"