R. v. Winfield (P.A.), 2009 YKCA 9

• Judge: Donald, Frankel and D. Smith, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: May 28, 2009
• Jurisdiction: Yukon
• Citations: 2009 YKCA 9;(2009), 273 B.C.A.C. 152 (YukCA)

R. v. Winfield (P.A.) (2009), 273 B.C.A.C. 152 (YukCA);

    461 W.A.C. 152

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. JL.001

Regina (respondent) v. Patricia Ann Winfield (appellant)

(08-YU620; 2009 YKCA 9)

Indexed As: R. v. Winfield (P.A.)

Yukon Court of Appeal

Donald, Frankel and D. Smith, JJ.A.

June 24, 2009.

Summary:

Winfield was charged with careless driving (Motor Vehicles Act, s. 186). The charge was initiated by a traffic ticket. At trial, the sole issue was whether she drove her vehicle in a careless manner when she passed Ambrose's vehicle.

The Yukon Territorial Court, in a decision reported at 2008 YKTC 30; 65 M.V.R.(5th) 315, accepted the evidence of Ambrose (an "exceptional witness") over that of Winfield, and convicted Winfield. The conviction resulted in a modest fine. Winfield appealed on the single ground that the verdict was unreasonable or could not be supported by the evidence.

The Yukon Supreme Court, in a decision reported at 2008 YKSC 69; 70 M.V.R.(5th) 207, dismissed the appeal. It was open to the trial judge to make the credibility and factual findings that he did, and he committed no legal errors in doing so. Winfield sought leave to appeal and, if leave was granted, appealed from the decision. In support, she applied to adduce fresh evidence.

The Yukon Court of Appeal dismissed the application to adduce fresh evidence, and refused leave to appeal. It would not serve the interests of justice to permit Winfield to reformulate both her defence and her grounds for challenging her conviction.

Criminal Law - Topic 7602

Summary conviction proceedings - Appeal to a court of appeal - Requirement of leave - The Yukon Court of Appeal considered the leading jurisprudence and summarized the relevant legal principles with respect to a leave application under s. 839(1) of the Criminal Code (R.S.C. 1985); namely, that the decision of a summary conviction appeal court could be appealed to a court of appeal "with leave of that court ... on any ground that involves a question of law alone" - It was important to keep in mind that "an appeal to a court of appeal in a summary conviction matter is not a second appeal from the trial court. Rather, it is an appeal from the decision of the summary conviction appeal court. Accordingly, the focus of a leave application, and the appeal if leave is granted, is on whether any error of law was committed by the summary conviction appeal judge ... [T]he applicant must establish that (a) the ground of appeal involves a question of law alone, (b) the issue is one of importance, and (c) there is sufficient merit in the proposed appeal that it has a reasonable possibility of success. The overriding consideration in the exercise of the discretion to grant or refuse leave is the interests of justice" - See paragraphs 11 to 13.

Criminal Law - Topic 7602

Summary conviction proceedings - Appeal to a court of appeal - Requirement of leave - [See first Criminal Law - Topic 7610 ].

Criminal Law - Topic 7610

Summary conviction proceedings - Appeal to a court of appeal - Grounds raised for first time on appeal - The appellant was charged with careless driving - At trial, the sole issue was whether she drove her vehicle in a careless manner when she passed Ambrose's vehicle - The trial judge accepted the evidence of Ambrose and convicted the appellant, resulting in a modest fine - The appellant's single ground of appeal was that the verdict was unreasonable or could not be supported by the evidence - The summary conviction appeal judge dismissed the appeal - The appellant sought leave to appeal - She argued that the trial judge misapprehended the evidence or failed to properly assess credibility - Her grounds of appeal also referred to a "Charter breach" - However, no Charter breach was alleged either at trial or on the summary conviction appeal, and her factum was silent as to the nature of the breach - She also alleged that the investigating officer interfered with her testimony - The Yukon Court of Appeal refused leave - The summary conviction judge addressed the arguments put forward and had regard to the pertinent law - Nor would the court grant leave to raise the new grounds, some of which did not allege any error of law - There was a lack of a trial record with respect to many of them (she sought to overcome the evidentiary gaps by her fresh evidence application, which the court dismissed) - It would not be in the interests of justice to permit the appellant to reformulate both her defence and her grounds for challenging the conviction - See paragraphs 15 to 20.

Criminal Law - Topic 7610

Summary conviction proceedings - Appeal to a court of appeal - Grounds raised for first time on appeal - The Yukon Court of Appeal stated that "[a]ppellate courts are reluctant to permit an appellant to raise an entirely new issue on appeal. The courts are even more reluctant to allow this to occur when an appellant has not raised the proposed new issue on an earlier appeal. The orderly and fair progress of litigation requires that a party raise issues in a timely way. ... Although appellate courts have discretion to permit a new issue to be raised, that discretion is one to be exercised sparingly. To take a less stringent approach would allow an appellant to transform an appeal into a new, and entirely different, proceeding, one divorced from how the trial was conducted. This is particularly so when the new issue is one that cannot be finally resolved without another trial" - See paragraphs 17 and 18.

Cases Noticed:

R. v. Emery (1981), 61 C.C.C.(2d) 84 (B.C.C.A.), leave to appeal refused [1981] 2 S.C.R. vii; 40 N.R. 358, appld. [para. 12].

R. v. C.S.M. (2004), 223 N.S.R.(2d) 311; 705 A.P.R. 311; 185 C.C.C.(3d) 471; 2004 NSCA 60, appld. [para. 12].

R. v. R.R. (2008), 238 O.A.C. 242; 234 C.C.C.(3d) 463; 2008 ONCA 497, appld. [para. 12].

R. v. Cai (J.) (2008), 258 B.C.A.C. 235; 434 W.A.C. 235; 2008 BCCA 332, appld. [para. 13].

R. v. Gill (A.S.) et al., [2008] B.C.A.C. Uned. 66; 2008 BCCA 259, appld. [para. 13].

Kaiman Estate v. Graham Estate (2009), 245 O.A.C. 130; 2009 ONCA 77, consd. [para. 18].

R. v. Tomlinson (B.) (2009), 270 B.C.A.C. 134; 454 W.A.C. 134; 2009 BCCA 196, refd to. [para. 18].

Counsel:

P.A. Winfield, acted on her own behalf;

J.M. Hartling, for the respondent.

These applications were heard on May 28, 2009, at Whitehorse, Yukon Territory, before Donald, Frankel and D. Smith, JJ.A., of the Yukon Court of Appeal. Written submissions were received on June 8 and 11, 2009. The court delivered the following judgment, with written reasons by Frankel, J.A., on June 24, 2009.