



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lira, 2017 ONCA 214

DATE: 20170315

DOCKET: C59102

Rouleau, Pepall, and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ivan David Lira

Appellant

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 Crowns identification
    evidence.

[3]

Through duty counsel, the appellant advances one ground of appeal: he
    submits that the jurys 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 jurys 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 jurys 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 courts awareness of
    the risk of wrongful convictions associated with certain kinds of cases and
    certain kinds of evidence:
Wills
, at paras. 29-30. The courts 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 judges 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 judges detailed warnings to the jury
    concerning the frailties of the video identification evidence.

[9]

Notwithstanding duty counsels able submissions, we are not persuaded
    that the jurys 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. Ismails pronounced and idiosyncratic limp.  The
    November 13, 2010 daylight video recording also reveals the appellants
    distinctive tan shoes with red laces (which a police officer had seen him
    wearing two weeks before the robbery), and Mr. Ismails unusual
    horizontal-striped jacket.  Most significantly, in the video recordings taken
    on November 14, 2010at nighttime, in the alleyway outside the store, moments
    before the robbery, and in the store during the robberyMr. Ismails distinctive
    gait and striped jacket, as well as his and the appellants relative stature
    and size, are apparent. In the video recording taken on November 14, 2010, in
    the store during the robbery, the appellants shoes with red laces are visible.

[12]

Moreover,
    the Crowns case against the appellant did not depend solely on the video
    evidence. It also included admitted photographic evidence, a balaclava
    containing Mr. Ismails 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 appellants 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 jurys 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.


