Court File and Parties

CITATION: R. v. Hartt, 2009 ONCA 500

DATE: 20090619

DOCKET: C44107

COURT OF APPEAL FOR ONTARIO

MacPherson, Simmons and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth Hartt

Appellant

Counsel: Kenneth Hartt, in person A.B. Davies duty counsel Randolph Schwartz, for the Crown

Heard & released orally: June 15, 2009

On appeal from the summary conviction of Justice Margaret P. Eberhard of the Superior Court of Justice dated August 15, 2005.

ENDORSEMENT

[1] Mr. Hartt seeks leave to appeal and if leave is granted appeals from the dismissal of his summary conviction appeal by Justice Eberhard of the Superior Court of Justice. He had been convicted in the Ontario Court of Justice of assaulting a police officer while attempting to strike another inmate when in custody.

[2] Ms. Davies, as duty counsel, argues on his behalf that having received fresh evidence regarding a wrist injury that Mr. Hartt had incurred, the summary conviction appeal judge erred in concluding the new evidence would not have affected the verdict. The summary conviction appeal judge came to that conclusion because she was “not persuaded that the punching movement described by the officers would have been impossible as a result of such an injury and while punching with that hand might have been expected to exacerbate pre-existing pain it does not follow that the appellant did not punch.”

[3] Ms. Davies argues that the fresh evidence of a medical nature would have corroborated Mr. Hartt’s story and that this was a credibility case. In our view, however, it was open to the summary conviction appeal judge on the record to come to the conclusion that she did. Mr. Hartt argues himself, in addition, based on further fresh evidence before us, that he had been prescribed Tylenol 3 and therefore that this was further corroboration that he had been injured and must have had an infection.

[4] We would not grant leave to appeal. Even if the issues put forward raise a question of law, they are not questions of law on which leave should be granted within the guidelines set out by this court in Regina v. R.(R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641 because:

(a) they are not questions of law of general application, and

(b) on the record before us (which it was the appellant’s responsibility to provide) the appellant has failed to demonstrate a clear error of law.

[5] Leave to appeal is therefore refused.

“J.C. MacPherson J.A.”

“J.M. Simmons J.A.”

“R.A. Blair J.A.”