Court of Appeal for Ontario

Docket: C59102

Judges: Rouleau, Pepall, and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Ivan David Lira Appellant

Counsel

Ivan David Lira, acting in person

Amy Ohler, appearing as duty counsel

Matthew Asma, for the respondent

Heard: March 7, 2017

On appeal from the convictions entered on June 4, 2014 by Justice J. Macdonald of the Superior Court of Justice, sitting with a jury.

Endorsement

[1] The appellant appeals his convictions arising out of a robbery of a "Cash in a Flash" store on November 14, 2010. After a trial by jury, the appellant and his co-accused, Guled Ismail, were convicted of the robbery. The appellant has abandoned his sentence appeal.

[2] The main issue at trial was the identification of the two masked men shown on the video recording of the robbery in the store. This recording and other video recordings were critical elements of the Crown's identification evidence.

[3] Through duty counsel, the appellant advances one ground of appeal: he submits that the jury's verdict was unreasonable and should be set aside under s. 686(1)(a)(i) of the Criminal Code, because the evidence did not allow for identification of him as one of the robbers. Indeed, the trial judge gave a strong caution that the video evidence was extremely poor and unreliable for the purposes of identification and created the risk of wrongful conviction.

[4] We do not accept these submissions. The appellant has not satisfied the test to overturn the jury's verdict under s. 686(1)(a)(i).

[5] As recently noted by this court in R. v. Wills, 2014 ONCA 178, [2014] O.J. No. 1069, at para. 27, jury verdicts are regarded as "the gold standard" in criminal law, although, as the court also observed, juries can make mistakes. Appellate review under s. 686(1)(a)(i) serves to protect against jury error in those cases where the trial is free of legal error and is entirely fair, but the evidence cannot justify the conviction of the accused: see R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 39.

[6] Section 686(1)(a)(i) provides:

686(1) On the hearing of an appeal against a conviction … the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.

[7] Section 686(1)(a)(i) requires this court to assess the jury's verdict through "the lens of judicial experience", in accordance with a reasonableness standard: was the verdict one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 40; Wills, at para. 28. In conducting this assessment, this court must independently weigh the totality of the evidence and examine its cogency, as informed by the court's awareness of the risk of wrongful convictions associated with certain kinds of cases and certain kinds of evidence: Wills, at paras. 29-30. The court's role in this assessment is not to make its own judgment as to the appropriate verdict, but to determine whether the verdict is beyond the reasonableness limit: Wills, at para. 31.

[8] The appellant does not argue that there was any trial unfairness or that the trial judge made any error. On the contrary, the parties agree that the trial judge's thorough charge was extremely fair to the defence. Indeed, duty counsel frankly stated that she could do no better than adopt as her submissions on appeal the trial judge's detailed warnings to the jury concerning the frailties of the video identification evidence.

[9] Notwithstanding duty counsel's able submissions, we are not persuaded that the jury's verdict in this case was unreasonable or cannot be supported by the evidence.

[10] First, having watched the video recordings, we cannot say that they are so inadequate that no reasonable reliance could have been placed on them for the purpose of accurate identification.

[11] Indeed, it is possible to see distinctive identifying details in the video recordings. The clearest of the video recordings were taken on March 2, 2010 in a Canadian Tire store, and during daylight on November 13, 2010, the day before the robbery, in the alleyway outside the "Cash in a Flash" store. These video recordings plainly show the faces and body shapes and sizes of the appellant and Mr. Ismail, and Mr. Ismail's pronounced and idiosyncratic limp. The November 13, 2010 daylight video recording also reveals the appellant's distinctive tan shoes with red laces (which a police officer had seen him wearing two weeks before the robbery), and Mr. Ismail's unusual horizontal-striped jacket. Most significantly, in the video recordings taken on November 14, 2010—at nighttime, in the alleyway outside the store, moments before the robbery, and in the store during the robbery—Mr. Ismail's distinctive gait and striped jacket, as well as his and the appellant's relative stature and size, are apparent. In the video recording taken on November 14, 2010, in the store during the robbery, the appellant's shoes with red laces are visible.

[12] Moreover, the Crown's case against the appellant did not depend solely on the video evidence. It also included admitted photographic evidence, a balaclava containing Mr. Ismail's DNA, and gloves and a firearm that resembled those used in the robbery, as shown in the video recording taken in the store. These three items were discovered in the boiler room of the appellant's apartment building. All of this evidence taken together with the video evidence created a close association between the appellant and Mr. Ismail and supported a finding that the appellant was one of the perpetrators of the robbery.

[13] While each of the various pieces of evidence proffered by the Crown, taken individually, may not have been sufficient to support the jury's verdict, the totality of this evidence, when viewed and weighed by the jury as a whole, provided a reasonable and sufficient foundation for the verdict. As a result, we conclude that the verdict in this case is one that a properly instructed jury, acting judicially, could reasonably have rendered.

[14] For these reasons, the appeal is dismissed.

Paul Rouleau J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.