R. v. Baena Date:, 2012 BCPC 399

Citation: R. v. Baena Date: 20120913 2012 BCPC 0399 File No: 8974-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANDREW PHILIP BAENA EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. F. PALMER Counsel for the Crown: M. LeHouillier Counsel for the Defendant: K. Merrigan Place of Hearing: Vancouver , B.C. Date of Judgment: September 13, 2012

[ 1 ] THE COURT: Andrew Baena stands charged on Information 8974-2-C that he did, on or about 10 June 2011, assault Dalton X Duperreault and thereby caused bodily harm to him. [ 2 ] The trial of this matter was held on July 25, 2012. The Crown called three witnesses: the complainant; an independent witness, Mr. Cardinal; and an officer, Constable Webber, who attended the scene after the incident. [ 3 ] June 10, 2011, was also the date of the fifth game in the Vancouver Canucks Stanley Cup finals. The streets in downtown Vancouver were crowded with fans watching the game and generally celebrating.

A lot of establishments had patios open on the street, and people were consuming alcohol, not only when they were within an establishment licensed to serve, but carrying alcohol with them on the streets. [ 4 ] The nine photographs submitted by the defence as Exhibit 1 in this proceeding established that the location where the assault on Mr. Duperreault occurred was Robson Street near Homer Street, here in the City of Vancouver, Province of British Columbia. [ 5 ] The defence called three witnesses: Josh Swetlicoe, his girlfriend Chanel Thompson, Mr. Baena's friend Tyler Waldron, and Mr.

Baena, the accused, also testified. [ 6 ] In final submissions, Crown counsel conceded that in all likelihood, the evidence in the Crown's case did not prove bodily harm beyond a reasonable doubt. Mr. Merrigan submitted that the most significant issue for the court, given the accused's evidence and that of the other defence witnesses, would be the reliability of the identification evidence provided by the complainant and the independent Crown witness, Mr. Cardinal. [ 7 ] Only two of the witnesses who testified in this case had not been consuming alcohol immediately prior to this incident.

They were Chanel Thompson and Constable Webber. Ms. Thompson was 16 years old at the time and had come downtown with her boyfriend, Josh Swetlicoe. She testified that she had had words with the complainant shortly before the assault occurred. Her version of that exchange corroborates Mr. Duperreault's evidence. Ms. Thompson said that it was the complainant who flipped the table at Mr. Swetlicoe and then the fight was on. [ 8 ] Mr. Duperreault's evidence with respect to the exchange was that he had heard her ask him what he was looking at, and his response was, "I'm not looking at anything.

You're nothing to look at." He was approached by a male who asked him if he was insulting the male's girlfriend. That was one exchange. Another exchange was about a male wanting a drink of Mr. Duperreault's alcohol and Mr. Duperreault telling that individual to f-off. [ 9 ] When he was confronted the second time, Mr. Duperreault said he was called a name, and his evidence on direct that "If you want to fight, I'll fight." [ 10 ] Ms. Thompson testified that after the table was flipped, Mr. Swetlicoe jumped on the complainant and they both fell to the ground. Her evidence was that she then jumped on Mr.

Swetlicoe in order to stop him and pull him away from the fight. [ 11 ] Mr. Swetlicoe testified that he and Ms. Thompson were some distance apart. He heard her yelling, saw something come by him, heard something smash, and he assumed it had been a bottle that was thrown. He then saw a guy stand up near Ms. Thompson. Mr. Swetlicoe assumed Ms. Thompson was being threatened, and his evidence was he jumped on that male. He also testified that he was only briefly on the ground before he and Ms. Thompson started to walk away from the area.

He was then stopped by the police and was detained for a short period of time. [ 12 ] Mr. Swetlicoe testified that he might have caught sight of Mr. Baena in the crowd at some point. He was not there with him and did not really notice him until Mr. Baena was placed under arrest and was seated on the curb near Mr. Swetlicoe's location. Shortly after that, Mr. Swetlicoe testified, his cuffs were unlocked and he was allowed to leave the scene. [ 13 ] Mr. Swetlicoe knew Mr. Baena from the fact that they had attended the same high school for one year.

They were not in the same circle of friends that day and had not travelled into Vancouver together. [ 14 ] Mr. Swetlicoe was consistent with the other witnesses, apart from Constable Webber, in acknowledging that he had been consuming alcohol that day. Mr. Swetlicoe, unlike some witnesses, acknowledged that he was, in fact, feeling the effects. [ 15 ] Mr. Waldron also testified. He had travelled into Vancouver that day with Mr. Baena. They have known each other for approximately three years, having met in Level 1 plumbing. They had been drinking together.

An alcoholic beverage was consumed before they came into Vancouver, and they had alcohol with them as they were walking around town. It was his opinion that neither of them were out of control. They had begun by watching the game on the big screen on Granville Street and then moved down Robson Street. They had spent some time in the square at the Vancouver Public Library, then crossed the street. [ 16 ] They were walking together up from Homer towards the Starbucks. Mr. Waldron testified that it was there that he observed Mr. Baena being arrested. It was his evidence that he had been consistently with Mr.

Baena, had never seen him involved in a fight at any location. He acknowledged that there was a large crowd on the street. There was a lot of noise and yelling and generally celebrating over how well the Canucks were doing in the series. He did not observe a fight or any signs of a fight at the Starbucks location or elsewhere. [ 17 ] Mr. Baena testified. His evidence was relatively brief. It was not controverted on cross-examination, and Mr. Baena denied that he had, on the date in question, been involved in assaulting anyone.

He testified that he had said to the police officer when he was arrested, "Take a look at me. You aren't going to see any evidence. There's nothing on me." [ 18 ] The evidence of the Crown witnesses was substantially different. Mr. Cardinal, who had been sitting at the WrapZone on

Robson Street, had noted that there were a couple of guys sitting at a table at another location. A fight started. He had his back turned when that occurred. He heard a lot of noise. He heard what he thought were chairs being thrown. He was 10, 12 feet away from the location where this was occurring.

He saw someone who was wearing a Canucks jersey, which he described as a Kesler jersey, and was wearing a ball cap, who was the complainant in this case, and that he was assaulted by as many as four individuals. [ 19 ] He gave very brief evidence with respect to describing the individuals that had to do with clothing. One male was described as wearing a black V-neck t-shirt, blue jeans, white shoes. He described the haircut in a particular way as being a short fade, shaved sides, length on top, had tanned skin with a stocky build, and purported to recognize that person and pointed to Mr. Baena.

It was significant that at the time, Mr. Baena was the only individual in the courtroom who matched that description in any way. He was seated at counsel table, and unfortunately, Crown confirmed verbally for Mr. Cardinal that he had, in fact, identified the accused. [ 20 ] Mr. Cardinal went on to say that earlier, meaning at the time of the offence, the individual had had lines shaved into the side of his head. That was something that Mr. Baena denied and said he had never had that haircut. [ 21 ] There was a lack of detail in much of Mr.

Cardinal's evidence, not simply with respect to the identification evidence that one would expect. After the assault occurred, Mr. Cardinal was not immediately involved in attending to the individual that he had seen on the ground and described as having a very bloody nose. He did not go over until the police attended, and there is little, if any, detail with respect to what it was that Mr. Cardinal was observing during that period of time. He did point out Mr. Baena, who was then standing by a news box next to the Starbucks location. He did point Mr. Baena out to the constable, and it was on that basis that Mr.

Baena was arrested. [ 22 ] With respect to the evidence of the complainant, Mr. Duperreault, there was, in my view, a fair bit of reconstruction involved in his evidence. It is no surprise that when a charge of assault is being tried, the court will hear as many versions of events as there are participants and witnesses to the events because everybody has a slightly different vantage point. What is telling about Mr. Duperreault's evidence is that he was down on the ground, and because of the way in which he said he was being assaulted, he was curled in a fetal position trying to protect his head and face.

He could not possibly have seen who was assaulting him for many persons could have been involved in that. [ 23 ] I have reviewed the evidence of all of the witnesses more than once, sorting in my own mind what was reliable. I appreciate that both Mr. Duperreault and Mr. Cardinal identified Mr. Baena as being the person involved. On Mr.

Duperreault's own evidence, given his response to the challenge, being "If you want to fight, I'll fight," it is entirely possible that the first person to assault him was someone who was engaging in a consent fight, and the evidence before the court is that was Josh Swetlicoe. [ 24 ] Mr. Swetlicoe, ironically, was arrested by the police at the scene and was allowed to proceed. He was never charged. It was Mr.

Baena who was kept basically on the evidence of a very generic description that could be applied to, I would venture to say, a high percentage of the young men who were in downtown Vancouver that day in terms of the physical descriptors. A black or white T-shirt is very common summer dress. [ 25 ] Apart from the cases provided by defence counsel on the issue of the frailties of witness identification, especially when it is simply on an in-court identification, the Supreme Court of Canada has said many, many years ago now, in a case called R. v.

W.(D.) , that there is a process trial judges must go through when they are evaluating the evidence that they have heard when the accused has testified. [ 26 ] The first step in that process is: the judge is required to consider whether or not the evidence of the accused is believed. If it is believed and is exculpatory evidence, the accused is entitled, of course, to an acquittal. If the accused is not believed but the accused's evidence raises a reasonable doubt with respect to one or more of the delicts in the Crown's case against him or her, the accused is entitled to an acquittal.

And finally, if the evidence is neither believed nor considered to raise a reasonable doubt, the court is required to consider whether the Crown has proven its case beyond a reasonable doubt. [ 27 ] I have to say that the evidence of Mr. Baena, in conjunction with the evidence of Mr. Waldron, who corroborated Mr. Baena's evidence, and that of Mr. Swetlicoe and Ms. Thompson, satisfied me that Mr. Baena had not been involved. I believed that evidence, and he is entitled to an acquittal on that basis. [ 28 ] Had that evidence not been led, I would suggest that on Mr.

Duperreault's own evidence with respect to consenting to get into a fight, his evidence that he is not aware of how it was he sustained the cut to the eye and his acknowledgement that it could have been glass on the ground, would have constituted a reasonable doubt and I would have made a finding that the Crown had not proven that case beyond a reasonable doubt. [ 29 ] You are free to go. (REASONS FOR JUDGMENT CONCLUDED)