



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tainsh,
    2015 ONCA 679

DATE: 20151007

DOCKET: C60353

Sharpe J.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kyle A. Tainsh

Appellant

Kyle A. Tainsh, in person

Erin Dann, duty counsel

Michelle Campbell, for the respondent

Heard: October 5, 2015

ENDORSEMENT

[1]

This is an application for appointment of counsel pursuant to s.684 of
    the Criminal Code.

[2]

The appellant was convicted of five counts of robbery involving
    convenience stores and similar locations. All of the robberies were captured on
    video surveillance. The defence at trial conceded that the evidence could be
    applied across counts. There was no direct identification evidence but the
    trial judge convicted the appellant because of accumulation of factors
    including the following:

(1)

The appellant owned and drove a
    car similar to that shown in two of the videos.

(2)

The appellants build and height
    resembled that of the person that committed the robberies.

(3)

The appellant resided in an
    apartment complex where a cash tray of one of the robberies was found.

(4)

A number of items, personal
    clothing and two pellet guns were found in the appellants apartment, which
    corresponded to items worn and used by the robber.

[3]

The focus of the s.684 application is on the evidence that the person
    who committed the robberies wore black running shoes with white stripes. The
    appellant was wearing Adidas Gazelle shoes with white stripes when he was
    arrested. A police officer testified that he had owned several pairs of Adidas
    Gazelle shoes and that the shoes worn by the robber in the video surveillance
    were Adidas Gazelle shoes.

[4]

The submission is made that the trial judge erred in admitting this
    evidence without first qualifying the police officer as an expert.

[5]

The crown concedes that the financial criteria for a s.684 application
    is met but resists the application on the grounds that the appeal is without
    merit and that it can be fairly argued without the assistance of counsel.

[6]

Despite the very capable argument presented by Ms. Dann, I am not
    persuaded that a s.684 application should be granted. In my view, the issues in
    this appeal are relatively straight forward and of a nature that can be fairly
    and properly dealt with by this court, if it proceeds as an inmate appeal.

[7]

The point about the evidence of the officer in relation to the shoes
    will be, I think, difficult to sustain. Case law including
R. v. Graat
,
    [1982] 2 S.C.R. 819, and the decision of this court in
R. v. Hill
(1986), 32 C.C.C. (3d) 314, hold that evidence very similar to this can be
    given by a lay witness.

[8]

Moreover, in his reasons, the trial judge indicates that he made the
    finding that the shoes of the accused matched the shoes on the video,
    irrespective of the officers testimony, although he adds that he did find that
    evidence compelling.

[9]

Accordingly, the s.684 application is dismissed. Appeal to be argued
    November 30, 2015.

Robert J. Sharpe
    J.A.


