COURT OF APPEAL FOR ONTARIO
Weiler, Watt and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kristoff Gallimore
Appellant
Peter Thorning, for the appellant
Alexander Alvaro, for the respondent
Heard: January 20, 2015
On appeal from the decision of Justice Andrew J. Goodman of the Superior Court of Justice, sitting as a summary conviction appeal court on April 15, 2014, dismissing the appeal from the conviction entered on February 2, 2012 by Justice Wayne G. Rabley of the Ontario Court of Justice.
ENDORSEMENT
1On March 21, 2010, the appellant, Kristoff Gallimore, and three of his friends, engaged in a street fight with about ten other men. Three members of the larger group were injured. One suffered a stab wound, another was hit on the head with a knife handle, and a third was hit with a shoe. The police arrived as Mr. Gallimore’s group fled. The police were told that a person fitting Mr. Gallimore’s description was responsible for the assaults. The police apprehended Mr. Gallimore and charged him with a number of offences arising out of the altercation.
2Mr. Gallimore was convicted at trial of two counts of assault with a dangerous weapon and one count of possessing a dangerous weapon. He was acquitted of the assault charge relating to the shoe. He was sentenced to six months in jail plus 12 months of probation. His summary conviction appeal was dismissed. Mr. Gallimore seeks leave to appeal to this court and, if leave is granted, appeals his conviction and sentence.
3Both at trial and before the summary conviction appeal judge, Mr. Gallimore’s primary position was that the evidence did not support the Crown’s position that he was the person responsible for the assaults.
4In convicting Mr. Gallimore of the two offences involving the knife, the trial judge relied heavily on the evidence of two witnesses referred to as the Braunstajn sisters. The trial judge found that these witnesses were best positioned to observe the events and that their evidence was both credible and reliable. They were not involved in the fight and were not intoxicated. One of the sisters saw Mr. Gallimore pull a knife from this pocket. The other sister saw him retrieve an object from his pocket, make a stabbing motion towards one man and strike another man in the head.
5The summary conviction appeal judge provided a detailed review of the trial judge’s detailed reasons in the light of Mr. Gallimore’s arguments on appeal. The summary conviction appeal judge was not persuaded that the trial judge’s verdict was unreasonable or that he misapprehended the evidence as it related to identification. The case came down to credibility and deference was owed to the trial judge’s conclusion that the preponderance of the Crown’s evidence established Mr. Gallimore’s guilt beyond a reasonable doubt.
6The summary conviction appeal judge also rejected Mr. Gallimore’s argument relating to self-defence. He held that it is not for the trial judge to consider speculative or alternative theories of defence, absent submissions on the issue or some evidentiary foundation. The summary conviction appeal judge further held that to the extent the defence was raised, the trial judge properly addressed the issue. The summary conviction appeal judge went further and held that there was no air of reality to the defence of self-defence.
7In relation to sentence, the summary conviction appeal judge held that Mr. Gallimore was unable to point to any palpable and overriding error committed by the trial judge. These were violent offences. The use of a knife was a particularly aggravating feature. The mitigating factors were acknowledged. The summary conviction appeal judge concluded that six months jail and probation was not demonstrably unfit.
8This court’s decision in R. v. R. (R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641 set out the principles that govern whether leave to appeal will be granted under s. 839(1)(a) of the Code. A second appeal in summary conviction proceedings is the exception, not the rule: R. (R.), at para. 24. Appeals under s. 839(1)(a) are restricted to questions of law alone: R. (R.), at para. 24. The principal factors that influence the decision about whether leave to appeal should be granted are the significance of the proposed question of law beyond the circumstances of the case to the administration of justice in the province and the strength of the appeal: R. (R.), at para. 30. Leave to appeal may be granted where the merits of the proposed ground of appeal are arguable, even if not strong, provided the proposed question of law has significance to the administration of justice beyond the facts of the case under appeal. Leave to appeal may also be granted where the decision of the appeal judge reflects a “clear error”, even if the error lacks general significance to the administration of justice: R. (R.), at paras. 32 and 37. Appeals under s. 839(1)(a) are appeals from the decision of the appeal judge, not a second appeal from the decision of the trial judge: R. (R.), at para. 24.
9Mr. Gallimore, in his notice of appeal to this court, identifies four proposed grounds of appeal that relate to the decision of the summary conviction appeal judge; namely, that the summary conviction appeal judge erred by:
giving too much weight to the trial judge’s credibility findings;
failing to find that the trial judge used a hearsay statement as corroborative of identification;
finding that the trial judge properly considered the defence of self-defence and by holding there was no air of reality to that defence; and
finding that the sentence the trial judge imposed was manifestly unfit.
10The first ground, at best, raises questions of mixed fact and law. Grounds two and three may raise questions of law alone but they are not of sufficient importance beyond this case to warrant leave and do not fit within the miscarriage of justice exception. Ground four does not raise a question of law alone.
11This court does not have jurisdiction to do what Mr. Gallimore seeks, which is essentially to ask this court to repeat the summary conviction court judge’s analysis and come to a different conclusion.
12For these reasons, leave to appeal is refused.
“K.M. Weiler J.A.”
“David Watt J.A.”
“Gloria Epstein J.A.”