Court of Appeal for Ontario
Before: Weiler, Gillese and Hoy JJ.A.
Between
Her Majesty the Queen
Respondent
and
Caleb Rowe
Appellant
Counsel:
James Harbic, for the appellant
Suhail Akhtar, for the respondent
Heard and released orally: May 8, 2013
On appeal from the decision of the Summary Conviction Appeal Court dated September 4, 2012 by Justice James McNamara of the Superior Court of Justice, dismissing the appeal from the conviction entered on June 29, 2011 by Justice Catherine A. Kehoe of the Ontario Court of Justice.
ENDORSEMENT
1The appellant was involved in a single car accident on November 8, 2009. He was taken to hospital and while there, refused to comply with several requests by a police officer that he provide a breath sample. After a four-day trial, he was convicted of operating a motor vehicle while impaired by alcohol and of refusing to provide a breath sample.
2The appellant brought a summary conviction appeal, which was dismissed. Before the summary conviction appeal judge (SCAJ), he argued that the convictions were unreasonable because the trial judge had applied the wrong test in determining the voluntariness of certain statements which he had made, misapprehended and/or failed to consider evidence, and erred in her application of the W.(D.) framework. In thorough reasons, the SCAJ addressed each ground of appeal. She dismissed the appeal.
3The appellant now seeks leave to appeal to this court pursuant to s. 839 of the Criminal Code. If granted leave, he would make basically the same arguments as he made at the summary conviction appeal. That said, the essence of his appeal, should leave be granted, is that the SCAJ failed to properly review the evidence.
4It is well settled that leave to appeal to this court pursuant to s. 839 should be granted sparingly and only when some exceptional circumstance justifies a further appeal. The stringent test for granting leave begins with the requirement that the alleged error of the SCAJ raises a question of law. If a question of law is engaged, the court must consider two key variables when deciding whether leave should be granted: (1) the significance of the legal issues that are raised to the general administration of criminal justice, and (2) the merits of the proposed grounds of appeal. See R. v. R.R. (2008), 2008 ONCA 497, 234 C.C.C. (3d) 463 (Ont. C.A.), at paras. 31 and 37.
5We see no question of law arising from the proposed grounds of appeal, which are largely factual in nature. On this basis alone, leave should be refused.
6In any event, however, a consideration of both variables reinforces the conclusion that leave ought not to be granted.
7The proposed grounds of appeal involve well-settled legal principles. They are of significance to the accused but do not raise issues of significance to the general administration of criminal justice. Moreover, in terms of merit, the proposed grounds of appeal relate to factual findings made by the trial judge on credibility and whether the appellant suffered a concussion, rather than alleged errors on the part of the SCAJ.
8This is not a case in which a clear error has been made nor are there any exceptional circumstances that justify a second appeal.
9Accordingly, as the requirements for leave to appeal have not been met, leave is denied.
"K.M. Weiler J.A."
"E.E. Gillese J.A."
"Alexandra Hoy J.A."
