OSHAWA

COURT FILE NO.: CR-14-13544

DATE: 20140818

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LEVAR LEWIN

Applicant/Appellant

M. Flagg, for the Respondent/Crown

M. Halfyard, for the Applicant/Appellant

HEARD: June 25, 2014 and by written submissions

McISAAC J.

[1] This is an application for appointment of counsel pursuant to s.684 C.C. in relation to an appeal against convictions on one charge of obstruct police under s.129 C.C. and two charges of breach of probation contrary to s.733.1 C.C. entered by the Honourable Justice S.C. MacLean on December 16, 2013 at Oshawa, Ontario. The Crown elected to proceed by way of summary conviction on all charges. Accordingly, the appeal procedure is governed by Part XXVII of the Criminal Code. This application is permitted by the terms of s.822(1) C.C. which incorporates most of the powers available on an appeal against a conviction for an indictable offence including the power to appoint counsel pursuant to s.684 C.C.

BACKGROUND

[2] At trial, the Crown alleged that the applicant was the operator and sole occupant of a vehicle that was stopped by a member of the Durham Regional Police for a careless driving investigation on Highway 401 in Whitby, Ontario at approximately 4:30 p.m. on March 5, 2013. After a stop of two or three minutes duration, the driver sped off before the officer could get his particulars. However, he had been able to note the licence plate of the vehicle, BPJF079, which turned out to have been a vehicle that the applicant now concedes was rented by him on the date in question from Pickering Enterprise. This business is located some 10 kilometers from the location of the traffic stop and the subject vehicle was exchanged for another within one-half hour of it.

[3] The investigating officer “ran” the licence plate and learned that the applicant had rented this vehicle. He obtained a photo of the applicant from the police data system and was satisfied that he was the driver who had fled. The Crown conceded at trial that the subsequent identification of the applicant by this officer was tainted by the failure to follow proper procedures. In particular, he should have turned the investigation over to another officer and a proper array of photos should have been used to test his capacity to identify Mr. Lewin as the driver. The trial judge agreed with this concession and placed very little weight on the identification evidence. She also was concerned by the fact that the officer apparently did not see an obvious forehead scar on the applicant.

[4] However, this was not a “pure” identification case as the trial judge found the documentary evidence relating to the vehicle rented to be a compelling factor. This flowed from the following circumstances:

• the subject vehicle had been rented to the applicant on the date in question;

• that he was to be the sole driver of this vehicle according to the terms of the rental contract; and

• that this vehicle was returned to the rental location shortly after the police stop and flight.

[5] Despite the limited value of the tainted identification evidence, the trial judge found the documentary evidence sufficient to base a conviction. At p. 31 of her extensive reasons she states:

All of those things, in my view, create a very strong circumstantial case for the Crown, and it is for that reason, and mainly for the reason of the circumstantial evidence in the rental agreement, that I find the Crown has proven its case beyond a reasonable doubt in terms of identity (my emphasis added).

[6] Identity was the only issue in this case. Legal Aid Ontario has denied Mr. Lewin’s application for a Certificate to prosecute this appeal because he has served the sentence imposed at trial.

PROPOSED GROUNDS OF APPEAL

[7] In the draft Notice of Appeal Mr. Halfyard advances the following arguments:

1. the learned trial judge did not adequately consider the evidence of dissimilarities between the Appellant and the alleged perpetrator in determining whether there was a valid identification;

2. the learned trial judge erred in relying on the tainted identification procedure; and

3. the learned trial judge placed undue reliance on the rental agreement “speculative for me to assume someone other than the renter would drive [the subject vehicle]”.

LEGAL PRINCIPLES

[8] Section 684(1) C.C. states:

A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.

[9] Although Crown counsel cross-examined the application on his capacity to fund this appeal, he did concede in final submissions that Mr. Lewin had met the second part of this test. Accordingly, the residual “interests of justice” involve only two considerations: whether the applicant advances arguable grounds for appeal, and whether the applicant can effectively advance these grounds without the assistance of counsel: see R. v. Kanagarajah, 2014 ONCA 513 at para. 4. In the circumstances of this case, I accept that the determinative factor is the merits of the appeal.

ANALYSIS

[10] The first two proposed grounds of appeal can be distilled into a complaint that the trial judge arrived at an unreasonable verdict that could not be supported by the evidence advanced by the Crown: see s.686(1)(a)(i) C.C. In particular, the applicant points to the defective “identification” procedures followed by the investigating officer in arriving at the conclusion that Mr. Lewin was the individual he stopped on the side of the highway. I am not satisfied that this ground has sufficient merit to support the order of appointment sought. First, the trial judge did consider the evidence of dissimilarities, in particular, the forehead scar which was not noted by the officer in her overall assessment of the case. Second, she did make particular reference to the tainted identification procedure along with the other descriptor discrepancies in coming to the conclusion that she was only attaching “limited weight to the officer’s evidence: see p. 30 of the Reasons for Judgment.

[11] The third proposed ground of appeal suggests that the trial judge placed undue reliance on the rental documents and that she erred in coming to the conclusion that it would be an exercise in speculation to come to the conclusion that someone other than the applicant had been driving the rented vehicle in the face of the “no other drivers” clause in the contract. I assume that this complaint is intended to engage s.686(1)(a)(i) C.C. as well. However, even though another judge may have come to another common sense conclusion on this issue, the applicant has failed to satisfy me that it is, at least, arguable that this was an unreasonable inference to draw in all the circumstances, especially as the proposition stood uncontradicted by the applicant: see p.25 of the Reasons for Judgment.

[12] In light of that last-mentioned comment by the trial judge, I find it convenient at this point to consider the looming issue of the applicant’s failure to shed any light on who other than himself may have been driving his rented vehicle at the time it was stopped by the police officer. This is the “elephant in the room” that permeates this entire prosecution. I find it to be an important issue in this case given the implicit submission of the applicant that he has somehow become the victim of a miscarriage of justice due to the tainted identification procedures undertaken to implicate him in these offences: see s.686(1)(a)(iii) C.C.

[13] The failure of an accused person to testify in the face of a compelling prosecution case is a factor that cannot only be considered by a trial court but also in the context of an appeal following conviction: see R. v. Abbey, 2013 ONCA 206 at para. 43. Indeed, there is authority that such failure could be the proper basis for the drawing of an adverse inference against the accused by a trial court: see R. v. Johnson (1993), 12 OR. (3d) 340 (C.A.), leave to appeal to S.C.C. dismissed, November 25, 1993. In my view, despite the deficiencies associated with the identification evidence in this case as acknowledged by the trial judge, the circumstantial evidence based on the documents from the rental agency constituted a formidable challenge for the applicant. It was far from unreasonable for the trial judge to come to that conclusion.

[14] In the final analysis, I do not regard any of the grounds advanced by the applicant to have sufficient merit to justify the appointment of counsel under s.684 C.C.

[15] I have two additional comments. The applicant received a global sentence of 90 days on the three convictions that generate this application. That sentence has been served in its entirety and Mr. Lewin faces no further jeopardy from it. Although any conviction that flows from a miscarriage of justice should not be permitted to survive in any system governed by the rule of law, I am not persuaded that this is one of those unfortunate cases, given the failure of the applicant to advance any evidence to dilute the extremely compelling scenario constructed by the Crown before the trial judge. As well, if the applicant were successful in overturning these convictions, it would turn out to be a somewhat pyrrhic victory in that he has already served his sentence. He faces no further incarceration if this application fails, let alone a significant period of incarceration.

CONCLUSION

[16] For all of these reasons, I have not been persuaded that the proposed grounds of appeal are of sufficient merit to meet the modest threshold of being arguable. Accordingly, this application is dismissed.

McISAAC J.

Released: August 18, 2014