DATE: 20050920
DOCKET: C39985
COURT OF APPEAL FOR ONTARIO
WEILER, MACFARLAND AND LAFORME JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
David Landesman for the appellant
Respondent
- and -
JOHN DOWNEY
Deborah Krick for the respondent
Applicant/Appellant
Heard: September 7, 2005
On appeal from judgment of the Justice John F. McGarry of the Summary Conviction Appeal Court dated April 11, 2003.
MACFARLAND J.A.:
[1] The appellant seeks leave to appeal the decision of the Summary Conviction Appeal Court dismissing his appeal against conviction and sentence.
[2] The appellant was convicted of assault after a one day trial on June 10, 2002. He received a suspended sentence and twelve months probation.
[3] On April 10, 2001, the complainant was working at Goodwill when the appellant left the store with two pairs of pants without paying for them. When the complainant confronted the appellant outside of the store, he struck her on the side of the face. The appellant testified that he did not hit the complainant and that she had assaulted him by grabbing his arms. The trial judge disbelieved the appellant’s account of what had happened and convicted him.
[4] On his appeal to Summary Conviction Appeal Court, the appellant alleged that during the trial he experienced symptoms of diabetic shock which impacted his ability to fully participate in his trial. The appellant filed a fresh evidence application consisting of his own affidavit to support his allegation. In his affidavit, the appellant claimed that he was confused during the proceeding because he was suffering from fluctuating blood sugar levels. He also claimed that the effects of his diabetes impaired his ability to testify.
[5] The summary conviction appeal judge dismissed the appellant’s fresh evidence application and his appeal against conviction on April 8, 2003. After examining the trial record and the appellant’s affidavit, the appeal judge found that the record did not support the assertions contained in the affidavit. The appeal judge concluded that the appellant’s affidavit could not be admitted as fresh evidence because the trial judge was aware of the appellant’s diabetes, four recesses had occurred during the four hour trial with an additional recess at the time of sentencing and the appellant’s testimony evinced that he clearly understood the questions posed to him and he was able to communicate his responses.
[6] The first ground of appeal raised is that the summary conviction appeal judge erred in refusing to admit the fresh evidence and failed to provide sufficient reasons for dismissing the appeal.
[7] In this respect, the appellant focuses on the appeal judge’s remark at page 23 of the appeal proceedings where he said:
… and really there’s absolutely no indication at any point in the trial proceedings that he was in any way confused, irrational or suffering from any of the effects of non-medication or exercise. So consequently, I see no reason to admit the fresh evidence.
[8] The appellant points to page 49 of the trial proceedings where the following exchange occurred in the evidence of the appellant:
Q. Did you think about perhaps just calling the police and asking them to come there, rather than taking away a pair of pants?
A. No that didn’t occur to me at that time.
Q. Because …
A. As I said, I was confused probably. I don’t know for sure but diabetes does affect you that way. I wasn’t going to - I was trusting the police. I didn’t realize you know that - I’d been a teacher for 33 years and I’ve taken students into this courtroom, into this courthouse many times with police officers …
Q. Sir I am not asking you about that.
THE COURT: I think it is appropriate to just let him finish the sentence and I can indicate that I am aware that you are a teacher, sir, so I don’t need to hear too much more about that but you can certainly complete your statement.
MR. DOWNEY: I just said that I brought students in here on many occasions and with Constable Sterling from Wyoming we’ve been sitting in on some of the procedures in the courtroom before and I, right now I am starting to get confused again and – may I get some of my juice.
THE COURT: Do you need a break sir?
MR. DOWNEY: I need juice yes. I need sugar right now.
THE COURT: All right then, we’ll take a recess for this gentleman to have some refreshment and perhaps I could see all counsel in chambers, just to sort out the rest of the day and how long we are going to be.
whereupon the court adjourned.
[9] Counsel for the appellant submits in light of this evidence the summary conviction appeal judge’s statement to the effect that there was “… absolutely no indication at any point in the trial proceedings that he was in any way confused …” was wrong and constitutes an error in law.
[10] To suggest that the appeal judge ignored, failed to recognize or was unaware of this evidence is to ignore the appeal judge’s statement at page 18 of the proceedings where he stated:
… but there’s not one centile shred (sic) of evidence to indicate that this man was in any form of diabetic distress, nothing, other than at some point saying I’m getting confused and he asks for a break and he gets it. …
This comment, made during the course of what might be described as a “blended” proceeding whereby the fresh evidence and appeal were argued together, indicates that the appeal judge did not commit the error alleged.
[11] Further, when we consider that counsel for the appellant had indicated to the appeal judge that the appellant’s evidence would be no different at a new trial than it had been at the first trial, that there had been five recesses during what was a four hour trial, there was no request at any time that the trial be adjourned and there was no evidence from the lawyer who had been counsel at trial to support in any way the self-serving proposed fresh evidence of the appellant, we see no error in the appeal judge’s ruling that the fresh evidence was inadmissible. Further, in view of the nature of the hearing that was conducted, when we consider the appeal judge’s reasons as a whole, they meet the requirements in R. v. Shepherd, 2002 SCC 26, [2002] 1 S.C.R. 869. The reasons read as a whole, do permit judicial review of his decision.
[12] The appellant seeks to argue three grounds of appeal not raised before the Summary Conviction Appeal Court.
[13] He submits that the appeal judge erred in law in dismissing his sentence appeal without giving reasons for so doing. There was no appeal against sentence in the Notice of Appeal to the Summary Conviction Appeal Court. Further there was no argument advanced at the hearing before the appeal judge in relation to sentence. The appellant’s position shortly stated seems to be that a lack of reasons in relation to a matter not before the court amounts to an error of law. Even if this issue were properly before this court, we would give no effect to this ground of appeal. The sentence was fit.
[14] The third and fourth grounds argued are that the trial judge misapplied the test set out in R. v. W.D. and failed to recognize the availability of a defence under Section 39(1) of the Criminal Code. These alleged errors on the part of the trial judge were neither raised nor argued before the Summary Conviction Appeal Court. Section 839(1) of the Criminal Code provides for an appeal to this court with leave from a decision of the Summary Conviction Appeal Court based on a question of law alone. This court is without jurisdiction to consider grounds of appeal not raised before the Summary Conviction Appeal Court.
[15] In result the appeal is dismissed.
RELEASED: September 20, 2005 “KMW” “J. MacFarland J.A.”
“I agree K. M. Weiler J.A.”
“I agree H. S. LaForme J.A.”