R. v. R.R.,

• Jurisdiction: Ontario
• Judge: Doherty, Rouleau and Watt, JJ.A.
• Neutral Citation: 2008 ONCA 497
• Citation: 2008 ONCA 497,(2008), 238 O.A.C. 242 (CA),90 OR (3d) 641,234 CCC (3d) 463,59 CR (6th) 258,[2008] OJ No 2468 (QL),238 OAC 242,78 WCB (2d) 606,90 O.R. (3d) 641,[2008] O.J. No 2468 (QL),238 O.A.C. 242,(2008), 238 OAC 242 (CA)
• Date: 07 May 2008
• Court: Court of Appeal (Ontario)

R. v. R.R. (2008), 238 O.A.C. 242 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. JN.099

Her Majesty the Queen (respondent) v. R.R. (applicant/appellant)

(C47013; 2008 ONCA 497)

Indexed As: R. v. R.R.

Ontario Court of Appeal

Doherty, Rouleau and Watt, JJ.A.

June 23, 2008.

Summary:

The accused appealed his convictions for sexual assault, assault, uttering a threat and making harassing phone calls (all summary conviction offences). The complainant in these offences was his former common law spouse.

The Ontario Superior Court, in a decision reported at [2007] O.T.C. Uned. 386, dismissed the appeal. The accused sought leave to appeal.

The Ontario Court of Appeal granted leave to appeal, but dismissed the appeal. The court discussed when leave to appeal should be granted in summary conviction proceedings and suggested that the Court of Appeal should change its current practice in summary conviction proceedings.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 7602

Summary conviction proceedings - Appeal to a court of appeal - Requirement of leave - The Ontario Court of Appeal stated that "[d]espite the very different statutory provisions governing indictable and summary proceedings, the vast majority of summary proceeding matters brought to this court proceed as if they were appeals as of right in indictable proceeding matters. By that I mean, the court does not address the question of leave to appeal as a discrete preliminary issue; rather, it simply lists summary conviction matters for oral argument before a panel of the court. The application for leave to appeal and the appeal itself are addressed in the same proceeding. In oral argument, leave to appeal is sometimes not even mentioned (much less argued). Instead, counsel and the court generally proceed directly to the merits of the grounds advanced on behalf of the applicant/appellant. Often the argument focuses on alleged errors at trial and makes only passing reference to the reasons of the summary conviction appeal court. This court's disposition is almost always based on the merits of the appeal and seldom alludes to the leave requirement" - See paragraph 2 - The court opined that the leave requirement in s. 839 of the Criminal Code could perform its proper function only if it was addressed separately from the ultimate merits of the appeal - If the court were to separate the application for leave to appeal from the hearing of the merits of the appeal, then different procedures could be adopted to reflect that bifurcation - See paragraphs 39 to 45.

Criminal Law - Topic 7602

Summary conviction proceedings - Appeal to a court of appeal - Requirement of leave - The Ontario Court of Appeal discussed the scope of appellate review contemplated in s. 839(1) of the Criminal Code and stated that a second appeal in summary conviction proceedings should be the exception and not the rule - See paragraph 25 - The requirement that the applicant obtain leave to appeal in s. 839 provided the mechanism whereby this court could control its summary conviction appeal docket - Access to the Court of Appeal for a second appeal should be limited to those cases in which the applicant could demonstrate some exceptional circumstance justifying a further appeal - See paragraph 27.

Criminal Law - Topic 7602

Summary conviction proceedings - Appeal to a court of appeal - Requirement of leave - The Ontario Court of Appeal stated that s. 839 of the Criminal Code appeared to give the Court of Appeal (or a judge of this court) an unfettered discretion as to when leave to appeal should be granted - Ultimately, that discretion had to be exercised in the interests of justice - See paragraph 28 - The court stated that "[i]n summary, leave to appeal pursuant to s. 839 should be granted sparingly. There is no single litmus test that can identify all cases in which leave should be granted. There are, however, two key variables - the significance of the legal issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal. On the one hand, if the issues have significance to the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, though the grounds must at least be arguable. On the other hand, where the merits appear very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty." - See paragraph 37.

Criminal Law - Topic 7602

Summary conviction proceedings - Appeal to a court of appeal - Requirement of leave - The Ontario Court of Appeal discussed the granting of leave to appeal to the Court of Appeal in summary conviction appeal proceedings - The court stated that "[c]ounsel should separately address the question of leave in their facta and, if necessary, in oral argument. The specific question or questions of law on which leave is sought should be clearly set out. The factors said to justify the granting of leave should also be clearly articulated. The respondent's written material should also address separately the question of leave as a preliminary issue. It is also important that the leave application focus on the alleged errors made by the Superior Court judge. To properly fix the focus of the leave application, the material filed in this court should include the notice of appeal and the facta filed in the Superior Court. Generally speaking, this court should not entertain legal arguments that were not advanced at the first level of appeal." - See paragraph 38.

Criminal Law - Topic 7607

Summary conviction proceedings - Appeal to a court of appeal - When available - General - [See second Criminal Law - Topic 7602 ].

Cases Noticed:

R. v. Johnson et al., [1994] 3 S.C.R. 965; 174 N.R. 321; 76 O.A.C. 241, refd to. [para. 21].

R. v. Laba - see R. v. Johson et al.

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, refd to. [para. 21].

R. v. Martin (B.), [2004] B.C.A.C. Uned. 202; 2004 BCCA 548, refd to. [para. 28].

R. v. Zamfirov (1996), 92 O.A.C. 317 (C.A.), refd to. [para. 29].

R. v. Hunt (I.M.) (1998), 108 B.C.A.C. 218; 176 W.A.C. 218 (C.A.), refd to. [para. 30].

R. v. Breeden (J.L.), [2008] B.C.A.C. Uned. 29 (C.A.), refd to. [para. 30].

R. v. O'Connor (M.A.) et al. (1996), 110 Man.R.(2d) 153; 118 W.A.C. 153 (C.A.), refd to. [para. 30].

R. v. Open Sky Inc. - see R. v. O'Connor (M.A.) et al.

R. v. Watson (P.F.) et al. (2007), 269 Nfld. & P.E.I.R. 126; 817 A.P.R. 126; 50 C.R.(6th) 340 (P.E.I.C.A.), refd to. [para. 30].

R. v. Joehnck (M.J.), [2006] Sask.R. Uned. 108; 2006 SKCA 68, refd to. [para. 30].

R. v. Chaluk (K.W.) (1998), 237 A.R. 366; 197 W.A.C. 366; 1998 ABCA 253, refd to. [para. 30].

R. v. Toor (J.S.) (2001), 277 A.R. 350; 242 W.A.C. 350; 155 C.C.C.(3d) 345 (C.A.), refd to. [para. 31, footnote 3].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 839(1) [para. 23].

Authors and Works Noticed:

Crane, Brian A., and Brown, Henry S., Supreme Court of Canada Practice (2008), p. 22 [para. 20].

Counsel:

Jill R. Presser, for the applicant/appellant;

Joanne Stuart, for the respondent.

This application for leave to appeal and appeal was heard on May 7, 2008, before Doherty, Rouleau and Watt, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., delivered the following judgment for the court which was released on June 23, 2008.