COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Drexler, 2012 ONCA 413

DATE: 20120618

DOCKET: C54290

Juriansz, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Martin Drexler

Applicant/Appellant

Alan D. Gold and James Hawkins, for the appellant

Michael Medeiros, for the respondent

Heard: May 30, 2012

On appeal from a decision of Justice John R. Sproat of the Superior Court of Justice, sitting as a summary conviction appeal court, on September 13, 2011.

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 (the appeal judge), affirming the applicant’s conviction for assault causing bodily harm.

[2] At the conclusion of argument, we refused leave to appeal. We said that we would give our reasons later. These are our reasons.

The Trial Proceedings

[3] At trial, two witnesses testified: the complainant and the appellant. The events that underpinned the prosecution were captured on video surveillance equipment in the licensed premises where the incident took place. The trial judge watched the video, which was entered as part of the Crown’s case.

[4] The trial judge believed the complainant’s version of events and disbelieved the applicant’s claim of self-defence. He considered that the video confirmed the complainant’s version of the incident and belied the applicant’s assertion of self-defence.

The Summary Conviction Appeal

[5] On the summary conviction appeal against conviction, the applicant contended that the trial judge had misapprehended the evidence, thus had erroneously rejected the claim of self-defence. During oral argument, the appeal judge raised the issue of self-defence, in particular whether the evidence adduced at trial provided an air of reality for consideration of that justification.

[6] The appeal judge also watched the video. He concluded that the trial judge had not misapprehended the evidence at trial, in particular the images shown on the videotape. The appeal judge considered that there was no air of reality to support the claim of self-defence. He dismissed the appeal from conviction, but allowed the appeal from sentence to the extent of deleting a firearms prohibition ordered at trial.

The Proposed Grounds of Appeal

[7] The applicant seeks leave to appeal against both conviction and sentence.

[8] On conviction, the applicant reinvigorates his claim about self-defence. He says that the appeal judge was wrong in affirming the trial judge’s conclusion that self-defence lacked an air of reality. He adds that the appeal judge erred in reinterpreting the videotape de novo, rather than ordering a new trial on the basis that the trial judge had misapprehended the evidence.

[9] On sentence, the applicant seeks leave to argue that the appeal judge erred in law in failing to delete the custodial portion of the sentence because of the applicant’s unblemished antecedents and the complainant’s provoking conduct.

The Standard for Granting Leaving to Appeal

[10] Under s. 839(1)(a) of the Criminal Code, we grant leave to appeal sparingly. The most influential factors in determining whether to grant leave to appeal are the significance of the legal issues raised to the general administration of criminal justice and the merits of the proposed grounds of appeal: R. v. R. (R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641 (C.A.), at para. 37.

[11] If the issues raised by the applicant have significance to the administration of justice beyond the unique circumstances of the case in which they arise, we may grant leave to appeal, provided the grounds raised are at least arguable, even if they are not especially compelling: R. (R.), at para. 37. We may also grant leave to appeal where the merits appear very strong, even if the issues raised are not of general importance, especially where the conviction is serious and the applicant faces a significant deprivation of liberty if the conviction is sustained: R. (R.), at para. 37.

The Standard Applied

[12] The proposed grounds of appeal against conviction and sentence lack significance to the administration of justice beyond the singular circumstances of this case.

[13] The entire argument of the applicant is premised on what he alleges is a misapprehension by the trial judge and appeal judge of a movement of the complainant’s arm as shown in the video. It is this movement that he alleges grounds the claim of self-defence. The applicant invites our review of the video and says that if we see a push by the complainant, we should grant leave, allow the appeal, and order a new trial on the basis of a misapprehension of the evidence.

[14] The trial judge grounded his finding of guilt on the evidence as a whole. He believed the complainant. He considered the video confirmed the complainant’s account and put the lie to the applicant’s claim of self-defence. The appeal judge made no discrete finding that the trial judge misapprehended the evidence and concluded that there was no air of reality to self-defence.

[15] The proposed ground of appeal involves an assessment of an item of evidence that formed part of the evidence adduced at trial. Assuming that the proposed ground of appeal raises a question of law alone, and is not a thinly-veneered attempt to revisit for the second time the factual findings of the trial judge, nothing takes this case beyond its idiosyncratic facts and confers upon it some significance to the general administration of criminal justice.

[16] Nor are the merits of the proposed ground of appeal strong. The applicant disagrees with a critical finding of fact made at trial. The finding was made on the basis of the evidence as a whole, not on the judge’s observation of the videotape. The verdict is not unreasonable and the applicant has failed to establish any misapprehension of evidence.

[17] The application for leave to appeal sentence is also linked to what the applicant claims was provoking conduct by the complainant. The relevance of such conduct as a sentencing factor is well-established. No such conduct was established here.

Conclusion

[18] For these reasons, we refused leave to appeal at the conclusion of oral argument.

“R.G. Juriansz J.A.”

“David Watt J.A.”

“Alexandra Hoy J.A.”