R. v. Roach (K.), (2009) 246 O.A.C. 96 (CA)

• Judge: Doherty, Cronk and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 30, 2009
• Jurisdiction: Ontario
• Citations: (2009), 246 O.A.C. 96 (CA);2009 ONCA 156

R. v. Roach (K.) (2009), 246 O.A.C. 96 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. FE.078

Her Majesty the Queen (respondent) v. Kevin Roach (appellant)

(M37273-C48106; 2009 ONCA 156)

Indexed As: R. v. Roach (K.)

Ontario Court of Appeal

Doherty, Cronk and Armstrong, JJ.A.

February 19, 2009.

Summary:

As part of his sentence appeal, an accused challenged the constitutionality of the five-year mandatory minimum penalty imposed by s. 212(1)(2.1) of the Criminal Code. He did not raise the constitutional issue at trial.

The Ontario Court of Appeal directed that the accused could not raise the constitutional issue on his sentence appeal.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Criminal Law - Topic 4853 ].

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - As part of his sentence appeal, an accused challenged the constitutionality of the five-year mandatory minimum penalty imposed by s. 212(1)(2.1) of the Criminal Code, on the grounds that it constituted cruel and unusual punishment, violated s. 12 of the Charter and was rendered inoperative by s. 52 of the Constitution Act, 1982 - He did not raise the constitutional issue at trial - The Ontario Court of Appeal declined to hear the constitutional argument - The nature and number of issues that the court would have to address was apparent upon a review of the Supreme Court of Canada's s. 12 jurisprudence, revealing a "somewhat complex two-layered analysis" - The court was not the appropriate forum for an anticipated "full blown evidentiary battle" in respect of some of the issues, for two reasons - First, the trial court was the forum in which to test and assess competing evidentiary claims - Second, if the constitutional issue proceeded, the accused would be released before the appeal was heard - Although the constitutional issue was important, there was no reason to think that it would allude appellate scrutiny if it was not considered in this case - See paragraphs 9 to 14.

Criminal Law - Topic 4921

Appeals - Indictable offences - Appeal to a Court of Appeal - General - The Ontario Court of Appeal declined to hear a constitutional issue raised by an accused for the first time on appeal - In considering the scope of the sentence appeal, the court anticipated there would be numerous and contentious evidentiary disputes generated by the material filed on appeal, and commented that appellate procedures were not designed to resolve evidentiary disputes - "The appellate forum and its procedures are not adapted to the weighing of evidence and the finding of facts. Appeal courts review decisions made at trial. The appeal process is premised on the issues under appeal having been vetted in the trial court and subjected to the reasoned analysis of the trial court. If a new argument put forward on appeal can only be effectively and fairly resolved by conducting what amounts to the trial of an issue or several issues in the appellate court, the appellate court should, absent exceptional circumstances where the interests of justice require otherwise, decline to resolve the new issue raised on appeal" - See paragraph 8.

Criminal Law - Topic 4973

Appeals - Indictable offences - Powers of Court of Appeal - Power to review and weigh evidence - [See Criminal Law - Topic 4921 ].

Criminal Law - Topic 5805

Sentencing - General - Statutory range mandatory (incl. mandatory minimum sentence) - [See Criminal Law - Topic 4853 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised (incl. new theory of the case) - [See Criminal Law - Topic 4853 ].

Cases Noticed:

Kaiman Estate v. Graham Estate (2009), 245 O.A.C. 130, refd to. [para. 6].

R. v. L.G. (2007), 229 O.A.C. 89; 228 C.C.C.(3d) 194; 2007 ONCA 654, refd to. [para. 6].

R. v. Seo (1986), 13 O.A.C. 359; 25 C.C.C.(3d) 385; 54 O.R.(2d) 293 (C.A.), refd to. [para. 6].

R. v. K.S. (2000), 136 O.A.C. 238; 148 C.C.C.(3d) 247 (C.A.), refd to. [para. 7].

R. v. Wiles (P.N.), [2005] 3 S.C.R. 895; 343 N.R. 201; 240 N.S.R.(2d) 1; 763 A.P.R. 1, refd to. [para. 9].

R. v. Ferguson (M.E.) (2008), 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 228 C.C.C.(3d) 385; 2008 SCC 6, refd to. [para. 9].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 212(1)(2.1) [para. 1].

Counsel:

Jennifer A.Y. Trehearne, for the appellant;

Christine Bartlett-Hughes and Grace Choi, for the respondent.

The motion, in writing, was read on January 30, 2009, by Doherty, Cronk and Armstrong, JJ.A., of the Ontario Court of Appeal. The direction of the court was delivered by Doherty, J.A., and released on February 19, 2009.