Court File and Parties

CITATION: R. v. Marshalok, 2010 ONCA 153

DATE: 20100301

DOCKET: C46842

COURT OF APPEAL FOR ONTARIO

Goudge, Juriansz and Watt JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Anthony David Marshalok

Applicant/Appellant

Counsel:

A. David Marshalok, in person

David Friesen, for the respondent

Heard and released orally: February 11, 2010

On appeal from the decision of Justice D.C. Shaw of the Superior Court of Justice sitting as a Summary Conviction Appeal Court, dated February 19, 2007.

ENDORSEMENT

[1] The applicant seeks leave to appeal from a decision of a judge of the Superior Court of Justice sitting as a summary conviction appeal court on the applicant’s appeal from his conviction of operating a motor vehicle with a prohibited blood-alcohol content.

[2] At his summary conviction trial and on appeal to the Superior Court of Justice, the applicant was represented by experienced counsel. The applicant asserts no claim that the assistance counsel provided was ineffective.

[3] The applicant is self-represented here. In his notice of appeal, the applicant advances a single ground of appeal. He says there that the summary conviction appeal court judge was wrong because he failed to find that the trial judge erred in relying on statutorily compelled statements made by the applicant to investigators in reaching his conclusion of guilt.

[4] Leave to appeal is sparingly granted under s. 839(1)(a) of the Criminal Code. It is granted when the issues raised has significance to the administration of justice beyond the individual case in which it is raised, even if the merits are not particularly strong, provided they are at least arguable. Leave may also be granted, even if the issues do not rise to the level of general importance, where the merits appear very strong, especially where the conviction is serious and the applicant faces a significant deprivation of liberty: see R. v. R. (R.) (2008), 2008 ONCA 497, 234 C.C.C. (3d) 463 (Ont. C.A.), at para. 37.

[5] The proposed ground of appeal in the notice of appeal involves an issue not raised at trial or argued before the summary conviction appeal court judge. The trial record lacks the evidentiary foundation necessary to determine the validity of this complaint. The trial judge made no improper use of the applicant’s roadside statements: not for assessing the applicant’s credibility or in determining his guilt.

[6] In his oral submissions and factum filed today, the applicant contended that the transcripts of trial proceedings contain errors and omissions, although he was unable to point to anything that could reasonably undermine the critical findings of fact or the ultimate conclusion of guilt. He also submitted that the original appeal book prepared by the respondent on his behalf omitted several important documents. We have considered the written materials the applicant has filed and his oral submissions. We are not persuaded that these materials and his submissions raise a question of law alone, let alone one upon which leave to appeal should be granted.

[7] Leave to appeal is refused.

"S.T. Goudge J.A."

"R.G. Juriansz J.A."

"David Watt J.A."