COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rathe, 2012 ONCA 669

DATE: 20121003

DOCKET: C52160

Sharpe, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Charles N. Rathe

Appellant

Frank Miller, for the appellant

Avene Derwa, for the respondent

Heard and released orally: September 26, 2012

On appeal from the decision of the Summary Conviction Appeal Court dated April 28, 2010 by Justice R. Pomerance of the Superior Court of Justice, dismissing the appeal from the conviction entered on February 15, 2008 by Justice M. Rawlins of the Ontario Court of Justice.

ENDORSEMENT

[1] The applicant seeks leave to appeal under s. 839(1)(a) of the Criminal Code from an order of the judge of the Superior Court of Justice sitting as a summary conviction appeal court dismissing his appeal from his conviction of assault. The only argument on appeal is that the summary conviction appeal court judge erred in dismissing the applicant’s appeal from the trial judge’s dismissal of his application for an order staying the proceedings based on unreasonable delay.

[2] Appeals to this court from decisions of the Superior Court of Justice sitting as a summary conviction appeal court are limited to grounds of appeal that involves question of law alone and require leave to appeal. In R. v. R.(R.)(2008), 2008 ONCA 497, 234 C.C.C. (3d) 463, this court held that leave to appeal should be granted sparingly. Two factors cover the determination of whether leave to appeal should be granted on a question of law alone: the significance of the legal issues raised to the general administration of criminal justice and the merits of the proposed grounds of appeal: R.(R.) at para. 37.

[3] In our view, the proposed grounds of appeal, if questions of law alone rather than questions of mixed fact and law, do not have significance to the administration of justice beyond the circumstances of this case. Counsel for the appellant candidly conceded this point.

[4] Leave to appeal may also be granted, however, even where the issues raised are not of general importance to the administration of justice provided the merits of the appeal appear very strong. It is especially so if the conviction in issue is serious and the applicant is facing a significant deprivation of his or her liberty: R.(R.) at para. 37.

[5] Even if we were to agree with the applicant that there may be an error with respect to the issue of waiver, the summary conviction appeal judge provided an alternative basis to characterize the period of time in question. In the light of that alternative characterization, we do not agree that this is a strong appeal. Further, it cannot be said that in being sentenced to a conditional discharge plus 12 months of probation, the applicant faces any significant deprivation of his liberty.

[6] In our view, this case does not meet the high threshold established in R.(R.) where another appeal is warranted. Therefore leave to appeal is refused.

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”

“Gloria J. Epstein J.A”.