Docket: CACR2144 Blaine Lewis Appellant - v. -, 2012 SKCA 81

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 81 Date: 20120823 Between: Docket: CACR2144 Blaine Lewis Appellant - and - Her Majesty the Queen Respondent Coram: Jackson, Caldwell & Herauf JJ.A. Counsel: Blaine Lewis on his own behalf W. Dean Sinclair for the Crown

Appeal: From: Provincial Court Heard: June 7, 2012 Disposition: Appeal decided Written Reasons: August 23, 2012 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Herauf Jackson J.A. [ 1 ] This is an appeal from five convictions on the basis that the accused ought to have been permitted to withdraw his guilty pleas in the Provincial Court. We are all of the view that the appeal should be dismissed in relation to three of the convictions and allowed in relation to the remaining two. [ 2 ] Blaine Lewis was charged with the following: (

i) attempting to steal a motor vehicle, contrary to s. 334 (

b) of the Criminal Code ; (ii) carrying a weapon, for a purpose dangerous to the public peace, contrary to s. 88 of the Criminal Code ; (iii) carrying a concealed weapon, contrary to s. 90 of the Criminal Code ; (iv) possessing a firearm without a licence, contrary to s. 91(1) of the Criminal Code ; and (

v) possessing a firearm, without lawful excuse, knowing the serial number on it had been removed, contrary to s. 108(1) (

b) of the Criminal Code . [ 3 ] The offences were alleged to have been committed in these circumstances. On December 8, 2011 at 11:10 a.m., a woman walking toward her car saw a “Native male” she believed was attempting to break into her vehicle. She called the police. The police stopped Mr. Lewis five minutes later while he was walking away from the car. The police searched him and found a Norinco Model 1911 .45 calibre handgun tucked into the waistband of his pants. The handgun was missing its magazine and no ammunition was found. The serial number had been removed. Mr.

Lewis was subject to a lifetime firearms prohibition. At no point in the process was it alleged that Mr. Lewis did anything in relation to the car by touching it or otherwise, or that he did anything in relation to the gun other than possessing it. [ 4 ] On Mr. Lewis’s first appearance in Provincial Court on December 12, 2012, he was without counsel. The charges were read to him and he was asked whether he wanted to speak to the Legal Aid counsel who was present in the court house that day.

The proceedings were adjourned to later that afternoon for that purpose. [ 5 ] When the matter resumed that afternoon, counsel indicated that he would be representing Mr. Lewis. With the Crown’s consent, the Court was asked to remand Mr. Lewis to the Saskatchewan Hospital to determine his ability to stand trial due to his “mental health issues.” During the course of this remand, it was determined that “intellectually Mr.

Lewis functions in the borderline range” but “he would be considered as fit to stand trial” (see: Psychiatric Court Report of January 5, 2012, Chief Psychiatrist, Saskatchewan Hospital Forensic Services). On Mr. Lewis’s next appearance in Provincial Court on January 9, 2012, following receipt of that report, his counsel requested that the matter be adjourned to January 30, 2012. [ 6 ] On January 30, 2012, Mr. Lewis appeared by videoconference. He began by advising the Court that he was discharging his lawyer and that he wanted to waive his charges from Lloydminster to Saskatoon where he was on remand.

The Court advised him that he could not waive his charges into Saskatoon unless he was prepared to plead guilty. Mr. Lewis said again that he wanted to waive his charges to Saskatoon. After having been put to his election, Mr. Lewis elected Provincial Court and pled guilty. The matter was adjourned so that Mr. Lewis could be present in person for sentencing. [ 7 ] Four further Court dates ensued. On each occasion, Mr. Lewis indicated his confusion regarding whether he had made his election or whether he had pled guilty.

For example, on February 16, 2012, he stated “I’m not entering any guilty pleas until I get proper legal advice and proper legal representation that I need.” The Provincial Court judge reiterated each time what had taken place on January 30, 2012 and that Mr. Lewis had already pled guilty. On March 1, 2012, Crown counsel asked the Court to explain again to Mr. Lewis that he had already pled guilty. At this point, the trial judge offered Mr. Lewis the opportunity to apply to expunge his guilty plea. The date

for the expungement hearing was fixed for March 13, 2012. [ 8 ] On March 13, 2012, the Court advised Mr. Lewis that he bore the “onus…to show that these pleas should be expunged.” Mr. Lewis indicated he had two reasons to expunge his guilty plea: (

i) his pleas weren’t “justifiable” because he had made them from video court; and (ii) he “didn’t fully understand” because he was not “represented by any legal representative.” [ 9 ] Crown counsel briefly addressed the Court, indicating that: (

i) Mr. Lewis had a record of over 70 convictions including theft and assault charges and a prior weapons offence and therefore would understand the circumstances and the consequences arising from a guilty plea; (ii) Mr. Lewis had been present in court “four prior occasions before today, and never sought to expunge” his guilty plea; and (iii) Mr. Lewis wanted to have the matters waived into Saskatoon in an effort to obtain a lesser sentence, only. Mr.

Lewis responded by saying he was not delaying the matter, but that he had discharged his lawyer because the lawyer had wanted to enter a plea to some of the charges in exchange for reduced time whereas Mr. Lewis believed he should not receive any time at all. [ 10 ] The Provincial Court judge then suggested to Crown counsel that an adjournment might be warranted to allow Mr. Lewis to obtain counsel. Crown counsel resisted this as he was of the view that Mr. Lewis was attempting to delay the process and should not be entitled to counsel as he had fired his Legal Aid counsel.

After briefly considering the question of an adjournment to allow Mr. Lewis to try to obtain counsel, the judge ruled as follows: This is a situation where the accused had legal representation on a number of occasions prior to his entering the guilty pleas . The guilty pleas were entered when he was on the CTV screen, but certainly that doesn’t diminish the validity of anything that occurs, just because it’s over the video conferencing. That mode of appearance is recognized in law and is a lawful appearance on his behalf. He had fired his Legal Aid lawyer, and then he enters guilty pleas to all the counts.

As the Crown points out, on numerous adjournments thereafter, where these things took place, set over for sentencing, presumably, that’s at least the endorsements, then all of a sudden now Mr. Lewis wants to expunge his guilty pleas because at the time he entered them he didn’t have a lawyer. And certainly in many circumstances where somebody enters a guilty plea without the benefit of legal representation and they’re bewildered as to the procedure, then certainly it behoves the court to grant their application and allow them to take another run at it . This is a situation, however, Mr.

Lewis was represented by legal counsel, and he’s certainly no stranger to the system . The Crown Prosecutor has counted 70 convictions on his record, and he’s been a frequent flyer in the court system since 1997 to date. And certainly when he speaks here today he’s quite articulate and doesn’t seem in any way to have any cognitive deficiencies. He certainly seems to be of certain normal intelligence . Under those circumstances I don’t think it’s appropriate to allow his application.

I think he has fallen short with establishing that his pleas should be expunged. [Emphasis added] [ 11 ] The Provincial Court judge then asked Mr. Lewis if he wanted a lawyer for sentencing. When Mr.

Lewis “guessed” that he would “do it right now,” it was decided to proceed with sentencing. [ 12 ] At that point, Crown counsel read the following circumstances into the record: On December 8th, 2011, at approximately 11:10 AM, the Lloydminster RCMP received a complaint from J.C. that a Native male wearing a black bunny hug with white writing on the back and dark jeans was attempting to gain entry into her 1996 Mercury Sable. Cooper yelled at the male, who walked away from her vehicle yelling something in return.

A male matching the description provided by J.C. was located at 11:15, approximately five minutes later, walking south on 50th Avenue in Lloydminster, Saskatchewan, near Heidi’s Donuts. The male was approached by the constable. The constable arrested the male in relation to the attempted theft as reported by J.C. A search of the male incidental to the arrest located a Norinco model 1911, .45 calibre handgun located in the male’s waistband. The handgun was cleared by the constable to ensure it was not loaded. The handgun did not have a magazine in it, nor was any ammunition located on the accused.

A further examination of the handgun found that the serial number was removed. Also, Lewis does not possess a valid firearms licence, to the contrary, was on a lifetime weapons prohibition order, Your Honour. [ 13 ] For his part, Mr. Lewis submitted to the Court his view of the facts as follows: The circumstances of attempting on my offences there, I guess, my attempting.

I was only asking for some help to use for a phone, for texting, because I was stranded in Lloydminster. … I was on the passenger side, and I thought somebody was sitting in the driver’s side, so I would have been able to ask that person for, you know, a cell phone at least. And – and I was on the passenger side, and I was on my way to hitchhiking, but I only made it to the Husky’s part there, and then I turned around because it was too cold, and I only had one sweater on, so that’s when she saw me walking the other way, and I yelled at her, “I’m trying to borrow a phone or something.

Can you help me?” but she never wanted to listen. She just kept on yelling at me, and just swearing and stuff. And I said, “Well, never mind

then,” and I just walked away. And that’s where I went walking back the other way towards Heidi’s. And then the – the gun it was unloaded. There was no ammunition. There was no clip. It was unusable. … Well, it was just only for likea souvenir, like, because it wasn’t useable, you know. It was just, you know, whatever, just like a mantle on the wall kind of thing, youknow. I wasn’t going to use it or nothing. If I did, I would have used it on that attempted theft, but which I didn’t. I was only asking forsome help, and then she took it the wrong way, so I walked away, you know.

And then, you know, I could have caused more ruckuswith officers, but I’m not like that, you know. I thought twice about, you know, how can I do anything with an unloaded gun, nocartridge, or no ammunition to go with it, you know? That’s all it was. It was just a souvenir to keep, and I bought it on the street for $20.The guys that were trying to sell it to me were eager to sell it, so I offered $20 for it. I wasn’t planning on hurting anybody at that time. [14] Without calling on the Crown for any further submissions, the judge imposed sentence.

He mentioned that he was taking intoaccount the guilty pleas, and then said the following: Certainly Mr. Lewis characterizes, he’s a souvenir collector who wound up in the jaws of the law, and he was just going to that carbecause he thought there was somebody on the other side and he wanted to get use of a cell phone. I think that when souvenir collectorswind up with a .45 calibre handgun with the serial numbers ground off of them, then the souvenir collecting is going to have some severeconsequences. Clearly that’s a story that he weaves here together that I do not accept in its slightest.

He is a career criminal, a persistentcriminal. He has got 70 convictions. He is a violent person, and he’s walking the streets of Lloydminster with a .45 calibre handgun withthe serial numbers ground out. That is very scary, and he wants to portray himself here as a souvenir collector, and it just isn’t the case. The judge imposed a sentence of 18 months coupled with the usual orders, and reduced the sentence to 15 months to take into accountthe time spent on remand. [15] Mr. Lewis was born on November 17, 1980. His record reveals that he began offending when he was 16.

As a young offender, heamassed some 20 convictions. The remainder of his offences were committed between 2000 and 2006. No offences appear on hisrecord after that year. [16] Mr. Lewis appealed his conviction and sentence to this Court on the following grounds: Denied court appointed lawyer Denied trial of not guilty Mislead and prejudice because race/record Errors in criminal codes and evidence To Whom it may Concern I asked for a court appointed lawyer and was denied Legal Aid. Because Legal Aid wanted to plead guilty and send me away.

The Judge denied me representation and said it was a waste of taxpayers money. I don’t think my life is a waste of taxpayers money.Also, I was intimidated and manipulated by the judge and prosecutor. They refused my application for my pleads of not guilty andalready had in there minds I am guilty without a fair and just trial.

They refused to consider relevant evidence and made errors in criminalcodes. [sic] Sincerely Blaine Lewis [17] This appeal comes to this Court via s. 675 of the Criminal Code, which grants a convicted person the right to appeal a conviction onany ground of law, without leave, and on any ground of mixed fact and law, with leave of the Court. An appellate court’s powers inrelation to an appeal from conviction are governed by s. 686(1)(

a) of the Criminal Code, which include allowing an appeal where therehas been an error of law or a miscarriage of justice. A miscarriage of justice is the applicable ground for considering an appeal when aperson who has pled guilty wishes to withdraw the plea on the basis of a lack of trial fairness or other similar footing (see: Jack Watson,“Guilty Pleas,” (1990-1991) 33 Crim. L. Q. 163 at 175; R. v. Eide, 2011 SKCA 81, 375 Sask. R. 34 at para. 6; R. v. Leiviska, 2011BCCA 145, 277 C.C.C. (3d) 213 at para. 18).

If an appeal court allows an appeal pursuant to s. 686(1)(a), the court may direct ajudgment of acquittal or order a new trial pursuant to s. 686(2). [18] Trial judges are granted a great deal of discretion to manage the process leading to the taking of a guilty plea. See: s. 606(1.2) ofthe Criminal Code; Thibodeau v. The Queen, (SCC), [1955] S.C.R. 646; R. v. Adgey, (SCC), [1975] 2S.C.R. 426; R. v. Arcand, 2000 SKCA 60, 199 Sask. R. 4 at para. 3; R. v. Leonard, 2007 SKCA 128, 307 Sask. R. 140 at paras 17-19; Eide, supra at paras. 7-8; and E.G.

Ewaschuk, Criminal Pleadings & Practice in Canada, looseleaf, 2nd ed., vol. 1 (Toronto, Ont.:Canada Law Book, 2011) at §14:2080 and following.

[19] In this case, however, cause for concern arises at several points in the process. No attempt was made to comply with s. 606(1.1)when the plea was taken. No inquiry of any sort was conducted to determine whether the plea was voluntary, unequivocal or informed.

The accused entered one guilty plea to all charges without any facts having been presented to the Court at any point prior to the guiltyplea being registered. [20] The plea was entered in a context of confusion where the record indicates that there was going to be a discussion about the waivingof the charges to Saskatoon, which discussion did not take place. The charges include multiple weapons offences addressing the samefacts, which may have contributed to the confusion.

The accused had recently been remanded for mental health issues. [21] To put the matter in context, the accused went from discharging his lawyer because he was not prepared to plead guilty—topleading guilty in less than five minutes. Following his guilty plea, at all subsequent hearings the accused expressed his belief he had notentered a plea. The expungement hearing could have remedied the matter, but not having the benefit of transcripts, the trial judgeappears to have overlooked several salient features of this case. [22] Then, when the facts were finally read to the Court at the time of sentencing, Mr.

Lewis disputed them. Since the gun was notdrawn when Mr. Lewis was by the car, or when he was arrested by the police five minutes later, and Mr. Lewis gave an alternativeexplanation for his presence by the car, the charges under ss. 334(

b) and s. 88 of the Criminal Code were called into question. Indeed,the Crown’s version of the facts in relation to those charges seemed to support Mr. Lewis’s explanation. In such circumstances, theProvincial Court judge should have at the very least asked Mr. Lewis if he wanted to withdraw his plea and enter a plea of not guilty inrelation to those charges, see: Ewaschuk, supra at §18:1065 (vol. 3); R. v. Fraser and Louie, (BC CA), [1972] 2W.W.R. 248, 5 C.C.C. (2d) 439 (B.C.C.A.); Adgey, supra at 429-30 endorsing the reasoning of Cartwright C.J.C. in Brosseau v.

TheQueen, (SCC), [1969] S.C.R. 181 at 188-90; and R. v. Hughes (1987), 1987 ABCA 69 , 76 A.R. 294 (C.A.). Instead, the trial judge resolved the disagreement by relying on Mr. Lewis’s record as the basis for concluding that he could not bebelieved. [23] The real issue for this Court is the appropriate remedy. Generally speaking, in the circumstances presented by this case, theappropriate remedy would be to quash the convictions and order a new trial, at least in relation to the charges under ss. 90, 91(1) and108(1)(

b) of the Criminal Code (see: R. v. S.(P.L.), (SCC), [1991] 1 S.C.R. 909 and R. v. More and Melville (1959), (BC CA), 28 W.W.R. 562, 124 C.C.C. 140 (B.C.C.A.). In this case, however, if this Court were to order a new trial itwould perpetuate what appears to have been an unfair process. [24] Mr. Lewis has been in custody since he was apprehended on December 8, 2011. In the time that it would take for counsel to beappointed for him and for a trial to take place, Mr. Lewis may well have served what would be a fit sentence. By this Court’s decision,Mr.

Lewis’s time in custody would be increased beyond the 15 months imprisonment he has received as a sentence on all charges and,assuming that he would be eligible for early release, considerably beyond the amount of time he would have spent in custody, if theCourt had not intervened in his favour. In such circumstances, a decision to order a new trial could very well prompt a further guilty pleasimply to avoid further time in remand pending a trial. Such a circumstance is to be avoided. [25] With respect to the charges under ss. 90, 91(1) and 108(1)(

b) of the Criminal Code, the evidence is overwhelming that Mr. Lewiswould be found guilty. On his own admission made to the Provincial Court, he possessed a gun. It was concealed and it had no serialnumbers. He is prohibited for life from possessing a firearm. While Mr. Lewis believes he has done nothing wrong, the evidence andhis own admission indicate the contrary. [26] Courts of appeal have a considerable discretion under s. 686(2) to effect justice in a given case. See: R. v. Grant (1975), (BC CA), 23 C.C.C. (2d) 317 (B.C.C.A.); R. v. Levy (1991), (ON CA), 62 C.C.C. (3d) 97 (Ont. C.A.);R. v.

Jeffers, 2012 ONCA 1, 280 C.C.C. (3d) 54, R. v. Roy, 2012 SCC 26; R. v. Haslam (1990), (BC CA), 56 C.C.C.(3d) 491, 78 C.R. (3d) 23 (B.C.C.A.); and R. v. Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3. [27] Having regard for the specific circumstances of this case, it is in the interests of justice to quash the convictions in relation to theattempted theft and the use of a firearm for a dangerous purpose, and enter a verdict of acquittal in relation to those charges, and dismissthe appeal in relation to the three remaining counts. The sentence in relation to the charges under ss. 90, 91(1) and 108(1)(

b) of theCriminal Code is time served. The order in relation to the provision of a sample for DNA purposes is struck. The firearms orderremains. DATED at the City of Regina, in the Province of Saskatchewan, this 23rd day of August, A.D. 2012.

“Jackson J.A.” _______________________ Jackson J.A. I concur “Caldwell J.A.” ______________________ Caldwell J.A. I concur “Herauf J.A.” _________________________ Herauf J.A.