COURT OF APPEAL FOR ONTARIO
Hoy, Trotter and Paciocco JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Ian Lawrence
Appellant
Ian Lawrence, appearing in person
Dan Stein, appearing as duty counsel
Manasvin Goswami, for the respondent
Heard: December 8, 2020 by video conference
On appeal from the conviction entered on June 7, 2019, and the sentence imposed on September 5, 2019, by Justice Terrence L.J. Patterson of the Superior Court of Justice.
REASONS FOR DECISION
Introduction
1The appellant and two other men, Preston Darnell Scott and Nedrick Lloyd Samuels, were charged with offences arising from a home invasion robbery. The appellant and Mr. Scott were tried together. Due to his lawyer’s illness, Mr. Samuels’ counts were severed, and his trial was scheduled for another time.
2The appellant was found guilty of the following offences: robbery (Criminal Code, R.S.C. 1985, c. C-46, s. 343(b)); assault (s. 266); disguise with intent (s. 351(2)); possession of property obtained by crime (s. 354(1)); and break and enter (s. 348(1)(b)). The appellant entered a plea of guilty to the count of possession of property obtained by crime, but not guilty pleas to the other counts. He was sentenced to 6 ½ years’ imprisonment.
3The appellant appeals his convictions and sentence. Subject to staying the conviction for assault pursuant to Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, we dismiss both appeals for the following reasons.
Factual Overview
4The victim of the offences was Mr. Paul Leblanc. At about 2:25 a.m. on February 9, 2017, someone living across the street from Mr. Leblanc saw two men get out of a parked car. The witness watched the men put on dark ski masks before they walked towards Mr. Leblanc’s house. He also saw a third individual sitting in the car. The witness called the police. The Crown argued that the appellant and Mr. Samuels were the men who exited the vehicle, while Mr. Scott remained in the car.
5Mr. Leblanc testified that two men broke into his house while he was asleep, entered his bedroom, and attacked him. The shorter of the two men beat his back with a hammer and his face was bloodied. Mr. Leblanc said that the shorter person tried to subdue him while the taller person searched his house. Because the shorter person had difficulties subduing Mr. Leblanc, the taller person came back to the bedroom to assist. The two men struggled with Mr. Leblanc as the taller one unsuccessfully attempted to put zip ties on his legs.
6It was alleged that the appellant was the taller of the two men involved in the attack.
7It was dark when Mr. Leblanc was attacked. His assailants were masked. Mr. Leblanc could not identify them. However, just before they left, a light was turned on and he could see that both men were black. The two men left with Mr. Leblanc’s backpack, cash, marijuana, and jewelry. Mr. Leblanc called the police. To his surprise, police were already across the street responding to his neighbour’s call. They had arrested Mr. Scott, who was still sitting in the parked car.
8Within 10-15 minutes of the robbery, and only a few blocks away, a police officer saw two men in dark clothing running across a street. He stopped them. The appellant was speaking on the phone and said “the police are here”. Mr. Samuels attempted to discard a hammer and a ski mask. The appellant was in possession of a ski mask as well as some of Mr. Leblanc’s jewelry. The officer observed blood on the pants of both men, including a stain on the left knee of the appellant’s jeans. This stain was consistent with Mr. Leblanc’s blood.
9The appellant did not testify.
The Trial Judge’s Reasons
10At trial, the appellant’s counsel conceded that his client was at Mr. Leblanc’s home that night, but denied that he went inside or inflicted any violence on Mr. Leblanc. He relied on the inconsistencies in Mr. Leblanc’s evidence. As the trial judge observed, counsel “suggested the possibility of there being a third person present although there was no evidence of that in the trial.” The trial judge rejected the suggestion that Mr. Leblanc’s blood may have been transferred to his jeans by a third person, calling the submission “beyond belief”. He reached the same conclusion about the blood having been transferred by Mr. Samuels: “None of these propositions make sense or are supported by the evidence.”
11The trial judge acknowledged certain inconsistencies in Mr. Leblanc’s evidence. For example, there were discrepancies between Mr. Leblanc’s police statement and his testimony with respect to which assailant did what, as well as the amount of money and marijuana stolen. Nonetheless, after considering all of the evidence, including the appellant’s timely apprehension, the trial judge concluded that: “I am satisfied that Mr. Lawrence was the taller of the two men with a black balaclava on his face that exited the Scott vehicle and he committed the home invasion of Mr. Leblanc’s residence and he beat him.” More specifically, he found that “the taller of the two individuals [the appellant] put his knee on [Mr. Leblanc’s] bloody face and that the other individual had a hammer who was striking him on the back.” In reaching this conclusion, the trial judge relied upon the fact that Mr. Leblanc’s blood was found on the appellant’s jeans.
The Conviction Appeal
12The appellant made numerous submissions on his appeal from conviction. Overall, he challenges the reasonableness of the verdicts. He further submits that the trial judge failed to analyze the circumstantial evidence; he did not sufficiently address the contradictions in Mr. Leblanc’s evidence; he misapprehended the evidence as to the respective roles of the appellant and Mr. Samuels; and he reversed the burden of proof. We reject these arguments.
13In terms of circumstantial evidence, the appellant submits that the trial judge did not address the fact that, when the officer apprehended him and Mr. Samuels, neither of them were in possession of a backpack or the marijuana reportedly stolen from Mr. Leblanc. We agree. However, this does not detract from the inculpatory value of the other circumstantial evidence that clearly implicated the appellant in the home invasion robbery. Irrespective of what happened to these other items, the circumstances of the appellant’s arrest, including his possession of some of Mr. Leblanc’s things – including a ring with Mr. Leblanc’s name engraved on it – along with a balaclava, was significant confirmatory evidence of Mr. Leblanc’s allegations.
14There were shortcomings in Mr. Leblanc’s evidence in terms of his descriptions of his assailants and their respective roles. However, the trial judge sufficiently addressed this issue in his reasons. He acknowledged the contradictions in Mr. Leblanc’s various accounts of what happened that night. He considered the fact that Mr. Leblanc’s face was bloodied during the attack, his assailants were masked and, until the very end of the attack, the lights were out. The trial judge then turned to the circumstantial evidence that overwhelmingly confirmed Mr. Leblanc’s account. Indeed, the appellant’s trial counsel acknowledged that his client was present during the robbery.
15The appellant submits that the trial judge erred in determining who did what during the home invasion. This submission is largely focused on the trial judge’s finding that the appellant put his knee on Mr. Leblanc’s face, resulting in the transfer of blood onto the appellant’s jeans. Mr. Leblanc was less than clear on this issue. And the appellant is correct to point out that the blood was not on the right knee of his jeans as the trial judge found; instead, a small amount of blood was found on the inner seam of his left pant leg. But this error was inconsequential. Although there was room for argument about the precise role of each man in this home invasion, the evidence established beyond a reasonable doubt that the appellant was a direct participant in a concerted attack on Mr. Leblanc.
16We also reject the submission that the trial judge reversed the burden of proof. There is language in the trial judge’s reasons that is resonant of this theme when dealing with the offence of possession of property obtained by crime. Looking at the circumstances of the appellant’s arrest and the discovery of Mr. Leblanc’s property, the trial judge said: “a prima facie case has been made out for which there has been no explanation”. However, this was said in relation to the count on which the appellant entered a plea of guilty.
17Lastly, it cannot be said that the verdicts were unreasonable. It is true that Mr. Leblanc’s evidence presented challenges. However, the totality of the evidence – including Mr. Leblanc’s injuries, the damage to his home, the observations from the neighbour’s house across the street, the appellant’s admission to being at the home during the robbery, and the circumstances of his arrest – clearly supports the reasonableness of the trial judge’s findings.
18The appeal from conviction is dismissed.
The Sentence Appeal
19The appellant seeks leave to appeal his sentence. With the able assistance of duty counsel, he submits that the trial judge erred in principle by confusing the roles of the two assailants, to the detriment of the appellant. Duty counsel submits that the trial judge erred by finding that it was the appellant who put his knee on Mr. Leblanc’s face, and by suggesting that the appellant wielded the hammer. Duty counsel submits that this caused the trial judge to wrongly approach the case by considering the appellant to be the principal offender.
20In support of his submissions, duty counsel applies to admit the preliminary inquiry evidence of Mr. Leblanc as fresh evidence on the appeal. Counsel challenged Mr. Leblanc’s credibility and reliability at the preliminary inquiry. The preliminary inquiry transcript was used for the same purpose at trial; a number of inconsistencies were put to Mr. Leblanc, but not all of them. Duty counsel wishes to rely on other, unexplored shortcomings in Mr. Leblanc’s various accounts for the purpose of minimizing the appellant’s role in the home invasion.
21We decline to admit the preliminary inquiry transcript as fresh evidence. The evidence was available at trial and at the time of sentencing. There is no allegation that the appellant received ineffective representation at trial. Moreover, even if admitted, the slightly more favourable version of events the appellant seeks to extract from this transcript could not have affected the result: R. v. Stevens, 2016 ONCA 292, at para. 15. Whether or not the trial judge misstated some of the evidence in his reasons for sentence, it does not detract from the fact that the appellant acted in concert with Mr. Samuels in the serious attack on Mr. Leblanc. On the facts of this case, the precise role played by each assailant was not critical.
22The application to admit fresh evidence is dismissed.
23Moreover, we do not accept the submission that the trial judge considered the appellant to be the “principal offender” when compared with Mr. Samuels. Mr. Samuels was not before the court at the time the appellant was sentenced. Although the trial judge referred to the appellant placing his knee on Mr. Leblanc’s face, he did not find that it was the appellant who used the hammer. As noted above, at para. 11, the trial judge said the opposite in his reasons for judgment.
24More generally, the appellant’s sentence was fit in all of the circumstances. The trial judge applied R. v. Wright (2006), 2006 CanLII 40975 (ON CA), 83 O.R. (3d) 427 (C.A.), in which this court emphasized the enhanced role of general deterrence and denunciation for home invasion robberies: Wright, at para. 24. Blair J.A. described the range of sentence as being from four to five years’ imprisonment, to eleven to thirteen years’, and sometimes longer if warranted by the circumstances: Wright, at para. 23. In R. v. Walsh, 2011 ONCA 325, 280 O.A.C. 198, the court held, at para. 11: “We agree with the Crown that the sentence imposed is outside the normal range of five years and up for a home invasion robbery.” The trial judge also relied upon s. 348.1 of the Criminal Code which provides that, when an offender knows or is reckless as to whether a dwelling house is occupied during a break and enter, it is an aggravating circumstance on sentence.
25The sentence imposed on the appellant was fit. It is true that the appellant’s pre-sentence report was positive. However, the appellant was not a youthful, first-time offender; he was 32 years old when he was sentenced. As the trial judge noted, two years prior to the commission of these offences, the appellant was sentenced to 15 months’ imprisonment for robbery with a firearm, and 12 months, consecutive, for forcible confinement and disguise with intent, followed by two years of probation. His probation period expired on December 31, 2017. Consequently, in February 2017 (the time of the offences in this case), the appellant was on probation for similar offences, under community supervision. This is a serious aggravating factor.
26The appellant was convicted of both assault (s. 266) and robbery with violence (s. 343(b)). In this case, the former offence is absorbed into the latter. Accordingly, the conviction on the assault count is conditionally stayed in accordance with Kienapple. However, this has no effect on the sentence that was imposed.
Conclusion and Disposition
27The appeal from conviction is dismissed. We grant leave to appeal against sentence, conditionally stay the assault count (Count #2), but the appeal against sentence is otherwise dismissed.
“Alexandra Hoy J.A.”
“Gary Trotter J.A.”
“David M. Paciocco J.A.”
