



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lawrence, 2020 ONCA 841

DATE: 20201229

DOCKET: C67409

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

[1]

The 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 lawyers illness, Mr.
    Samuels counts were severed, and his trial was scheduled for another time.

[2]

The 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.

[3]

The appellant appeals his convictions and sentence. Subject to staying
    the conviction for assault pursuant to
Kienapple v. R
.
, [1975]
    1 S.C.R. 729, we dismiss both appeals for the following reasons.

Factual Overview

[4]

The 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. Leblancs 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.

[5]

Mr. 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.

[6]

It was alleged that the appellant was the taller of the two men involved
    in the attack.

[7]

It 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. Leblancs backpack, cash, marijuana, and jewelry. Mr. Leblanc called the
    police. To his surprise, police were already across the street responding to
    his neighbours call.  They had arrested Mr. Scott, who was still sitting in
    the parked car.

[8]

Within 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. Leblancs jewelry. The officer observed
    blood on the pants of both men, including a stain on the left knee of the
    appellants jeans. This stain was consistent with Mr. Leblancs blood.

[9]

The appellant did not testify.

The Trial Judges Reasons

[10]

At
    trial, the appellants counsel conceded that his client was at Mr. Leblancs
    home that night, but denied that he went inside or inflicted any violence on
    Mr. Leblanc. He relied on the inconsistencies in Mr. Leblancs 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. Leblancs 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.

[11]

The
    trial judge acknowledged certain inconsistencies in Mr. Leblancs evidence. For
    example, there were discrepancies between Mr. Leblancs 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 appellants 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. Leblancs residence and he beat him. More specifically,
    he found that the taller of the two individuals [the appellant] put his knee
    on [Mr. Leblancs] 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. Leblancs blood was found on the appellants jeans.

The Conviction Appeal

[12]

The
    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. Leblancs 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.

[13]

In
    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 appellants arrest,
    including his possession of some of Mr. Leblancs things  including a ring with
    Mr. Leblancs name engraved on it  along with a balaclava, was significant
    confirmatory evidence of Mr. Leblancs allegations.

[14]

There
    were shortcomings in Mr. Leblancs 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.
    Leblancs various accounts of what happened that night. He considered the fact
    that Mr. Leblancs 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.
    Leblancs account. Indeed, the appellants trial counsel acknowledged that his
    client was present during the robbery.

[15]

The
    appellant submits that the trial judge erred in determining who did what during
    the home invasion. This submission is largely focused on the trial judges
    finding that the appellant put his knee on Mr. Leblancs face, resulting in the
    transfer of blood onto the appellants 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.

[16]

We
    also reject the submission that the trial judge reversed the burden of proof.
    There is language in the trial judges 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 appellants arrest and the discovery of Mr. Leblancs
    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.

[17]

Lastly,
    it cannot be said that the verdicts were unreasonable. It is true that Mr.
    Leblancs evidence presented challenges. However, the totality of the evidence
     including Mr. Leblancs injuries, the damage to his home, the observations
    from the neighbours house across the street, the appellants admission to
    being at the home during the robbery, and the circumstances of his arrest 
    clearly supports the reasonableness of the trial judges findings.

[18]

The
    appeal from conviction is dismissed.

The Sentence Appeal

[19]

The
    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. Leblancs 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.

[20]

In
    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. Leblancs 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. Leblancs
    various accounts for the purpose of minimizing the appellants role in the home
    invasion.

[21]

We
    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.

[22]

The
    application to admit fresh evidence is dismissed.

[23]

Moreover,
    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. Leblancs 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.

[24]

More
    generally, the appellants sentence was fit in all of the circumstances. The
    trial judge applied
R. v. Wright
(2006), 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.

[25]

The
    sentence imposed on the appellant was fit. It is true that the appellants
    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.

[26]

The
    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

[27]

The
    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.


