R v Lewis, 2019 SKCA 11

Court of Appeal for Saskatchewan Docket: CACR3021 Citation: R v Lewis, 2019 SKCA 11Date: 2019-01-25 Between:Blaine Phillip LewisAppellantAndHer Majesty the QueenRespondentBefore: Ottenbreit, Caldwell and Barrington-Foote JJ.A. Disposition: Application for judicial interim release denied; appeals dismissedWritten reasons by: The Honourable Mr. Justice CaldwellIn concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Barrington-FooteOn Appeal From: Provincial Court, North BattlefordAppeal Heard: January 11, 2019Counsel: Blaine Phillip Lewis appearing on his own behalf Andrew S.

Davis for the Respondent Caldwell J.A. [1] Blaine Phillip Lewis appeals against his convictions and sentence following two trials before the same judge on chargesarising out of separate incidents. The principal offences were two assaults with a weapon on girlfriends (Criminal Code, s. 267(a)) and anunrelated resisting lawful arrest (s. 270(1)(b)). The same judge also sentenced Mr. Lewis on all convictions at the same time and, indoing so, designated Mr.

Lewis a long-term offender [LTO] under s. 753.1 of the Criminal Code, sentenced him to two years’imprisonment (before remand credit) on the assault convictions and two breach convictions (s. 145(3)), and imposed a ten-year long-term supervision order [LTSO]. [2] Mr. Lewis has also applied to this Court for interim release under s. 679 and for release on parole. [3] For the reasons that follow, I would deny Mr. Lewis’s applications for release and dismiss his appeals. [4] Dealing first with the applications for release, this Court has no jurisdiction to address Mr.

Lewis’s application for parole: Rv Latham (1989), (SK CA), 80 Sask R 79 (CA). As to the second application, Mr. Lewis is not in custody under thesentence at issue in this appeal, the warrant having expired in September 2018. He is presently incarcerated under a sentence that is notbefore this Court. For this reason, the application for judicial interim release was moot when he made it as we have no power to releasehim from his present incarceration. Further, the factors under ss. 679(3)(

b) and (

c) that were identified in his unsuccessful December 13,2017, application for interim release remain unchanged. Finally, given that I would dismiss his appeals against conviction and sentence,the application for release is moot for that reason as well. His application must be denied. [5] Turning to the appeal proper, in his notice of appeal and the various materials he has filed with the Court, Mr. Lewis assertshe has suffered a miscarriage of justice, has been denied a fair trial, is the victim of racism and was convicted on the basis of perjuredevidence.

He also alleges that the verdicts are unreasonable and that the trial judge erred in his handling of the evidence. In otherrespects, Mr. Lewis says there were procedural errors in the way in which he was brought to trial, and in the trials themselves, thatundermine his convictions and constitute grounds to reverse his LTO designation. Mr. Lewis’s petition to have his LTO designation andLTSO set aside features prominently in all of his allegations of procedural and substantive error. [6] I will address the allegations of procedural error first.

It is clear from the record there were irregularities and some confusionearly on in the process that lead up to the trials on the two sets of charges against Mr. Lewis. This includes questions as to whetherelections had been properly made, whether guilty pleas had been properly taken from Mr. Lewis and whether he appreciated the natureof the proceedings. However, it is equally clear that the substantive irregularities and any resulting prejudice to Mr. Lewis had beencured by the time he reached trial. Of particular note, at the insistence of Mr.

Lewis’s then counsel, George Combe, and ultimately withthe Crown’s agreement, the Provincial Court expunged Mr. Lewis’s guilty pleas and confirmed his election to Provincial Court on allcharges. Further, just prior to this, Mr. Lewis had been assessed under s. 672.11 of the Criminal Code and found fit to stand trial. Inshort, the record does not support Mr.

Lewis’s allegations of trial unfairness or a miscarriage of justice as a result of proceduralirregularity. [7] With regard to the other allegations of miscarriage of justice, it is important to recall that an appellant who makes suchallegations bears the evidentiary and persuasive burdens of establishing that a miscarriage of justice has occurred. In straightforwardterms, the appellant must satisfy the appellate court that something has occurred that undermined trial fairness or the reliability of theverdict. In this case, the record simply does not bear out any of Mr.

Lewis’s contentions that the pathway to trial and his trials themselveswere affected by racial bias, lack of disclosure, fabricated disclosure, perjured evidence or systemic failure within the judicial system.There is nothing in the record that even suggests there is the faintest possibility of any merit to his allegations. [8] Turning to Mr. Lewis’s allegation that the verdicts are unreasonable or unsupported by the evidence, it is sufficient toobserve that the judge convicted Mr.

Lewis after each trial on the strength of what he found to be credible and corroborated evidence ofguilt adduced through the Crown’s witnesses. On the other hand, Mr. Lewis elected not to call evidence in his defence in either trial andhis defence to the charges did not challenge the credibility or reliability of the Crown’s witnesses in any substantive way. Further, having

examined the transcripts, I can find no error in the trial judge’s handling or consideration of the evidence in either trial. That is, therecord discloses there was ample evidence to support each of the judge’s factual findings, including on the issue of consent to thechoking charge, and the findings themselves logically and legally compel the verdicts rendered in the trials. In short, the verdicts areneither unreasonable nor unsupported by the evidence accepted by the judge. [9] As the warrant of committal under which Mr. Lewis served his determinate sentence has expired, there remain two aspects toMr. Lewis’s appeal against sentence: (

a) the LTO determination; and (

b) the length of the LTSO. An LTO determination is a finding offact: R v Currie, (SCC), [1997] 2 SCR 260 at para 44. Absent an error of law, an appeal against an LTO determinationis assessed under the standard of reasonableness (see: Criminal Code, s. 759(1); R v Currie at paras 33–35; R v Sipos, 2014 SCC 47,[2014] 2 SCR 423). [10] As to the reasons for designating Mr. Lewis an LTO, the transcript records that the trial judge addressed the issues he wasrequired to address under s. 753.1(1) of the Criminal Code.

That is, he considered whether the predicate offence of assault with a weaponmerited a sentence of at least two years’ imprisonment (s. 753.1(1)(a)). He found the circumstances in which Mr. Lewis had choked hisgirlfriend with a coaxial cable merited an incarceral sentence of two years or more. He looked at whether the evidence established a“substantial risk” that Mr. Lewis would reoffend (s. 753.1(1)(b)). In this regard, the evidence was principally Mr. Lewis’s criminalhistory and the assessment report of Dr.

Lohrasbe, a forensic psychiatrist, which addressed 20 years of pre-sentence reports, institutionalreports, psychiatric reports, psychological reports (including the s. 672.11 fitness assessment), school reports and criminal courtdecisions. Dr. Lohrasbe’s report also contained information on Mr. Lewis’s upbringing, family situation and considerations relevantunder R v Gladue, (SCC), [1999] 1 SCR 688. On this basis, the trial judge concluded Mr. Lewis posed a “verysubstantial risk” to reoffend violently. The trial judge also considered Dr.

Lohrasbe’s report and the affidavit of James Gonzo, an officialwith Correctional Services Canada, under s. 753.1(1)(

c) and concluded there existed “a reasonable possibility of eventual control of therisk [posed by Mr. Lewis] in the community.” [11] In short, under each aspect of the three-part inquiry under s. 753.1(1), the trial judge identified and weighed the relevantevidence and found the Crown had met its burden. Applying the standard of reasonableness, I am unable to say the trial judge’sconclusions were unreasonable or unsupported by the evidence that was before him.

Further, the record does not disclose an error of law. [12] I am also unable to conclude that the ten-year LTSO imposed by the trial judge was unreasonable in the circumstances. Dr.Lohrasbe’s report detailed Mr. Lewis’s poor rehabilitative prospects, which led him to opine that it “would be hazardous to assume thatthe risk posed by Mr. Lewis in the foreseeable future can be effectively reduced through available treatment programs.” As it pertainedto the duration of an LTSO, Dr.

Lohrasbe opined: “If a time comes when his risk has been lowered to the point where safe managementin the community is an option, the longest possible period of supervision will assist in risk management.” To be clear, Dr. Lohrasbe’soverall assessment was bleak at best, all but concluding Mr. Lewis’s risk was not manageable in the community. To paraphrase it at itshighest, the forensic psychiatrist said that the longer the LTSO period ran, the greater the possibility was of managing Mr. Lewis’s riskin the community. The trial judge, drawing on the opinions and evidence set out in Mr.

Gonzo’s affidavit, was nonetheless prepared tofind a reasonable possibility of control in the community under a ten-year LTSO. Given the evidence, this was decidedly not anunreasonable conclusion. [13] Accordingly, for the reasons given, I find no basis to set aside the convictions entered in Provincial Court or to interfere withthe LTO designation or LTSO imposed on Mr. Lewis. In the result, I would dismiss Mr. Lewis’s appeals. “Caldwell J.A.” Caldwell J.A.I concur. “Ottenbreit J.A.” Ottenbreit J.A.I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.