COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bresnark, 2013 ONCA 110

DATE: 20130221

DOCKET: C53704

Epstein, Hoy and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Bresnark

Appellant

Steven Bresnark, in person

Brendan Gluckman, for the respondent

Heard and released orally: February 12, 2013

On appeal from the decision of the Summary Convictions Appeal Court dated March 17, 2010 by Justice David Aston of the Superior Court of Justice, dismissing the appeal from the conviction entered on May 7, 2007 by Justice Marion E. Lane of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant seeks leave to appeal from the order of Aston J. dismissing his summary conviction appeal. On May 7, 2007, the appellant was convicted of seven counts of attempting to obtain income tax refunds contrary to s. 239(1) of the Income Tax Act. On January 10, 2008 he received a global sentence of two years less a day. He was also fined.

[2] On November 1, 2007, the appellant appealed both his conviction and sentence. The appeal was to be heard by Wilson J. on February 19, 2010, but the conviction appeal had not been perfected. She ordered that unless the conviction appeal was perfected by February 24, 2010, the conviction appeal would be dismissed as abandoned.

[3] The matter came before Justice Aston on March 17, 2010. He disposed of the sentence appeal. However, the conviction appeal still had not been perfected. The appellant asked for an adjournment to file fresh evidence in support of an ineffective assistance of counsel argument. The summary conviction appeal judge refused the adjournment request and dismissed the conviction appeal on the basis that there was no acceptable explanation for the delay in perfecting the appeal.

[4] Mr. Bresnark now appeals the dismissal of his conviction appeal to this court. Pursuant to s. 839(1) of the Criminal Code, he requires leave.

[5] A second appeal in summary conviction proceedings is the exception, not the rule. R. v. R.(R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641. First, the matter in issue must raise a question of law alone. Even if the proposed appeal involves a question of law alone, there are only two types of cases in which leave to appeal may be granted. One is when the matter raised has significance to the administration of justice beyond the particular case and the grounds of appeal are at least arguable. The other is where the merits appear to be very strong – particularly if the conviction is serious and the appellant is facing a significant deprivation of his or her liberty.

[6] In our view, leave to appeal is not available in this case.

[7] First, this appeal does not raise a question of law. It involves the exercise of the court’s discretion in the application of the Rules of Civil Procedure with respect to the hearing of appeals.

[8] Second, even if the appellant’s case did involve an issue of law alone, neither of the other two tests could be met. While the issues raised are clearly important to the appellant, this case does not involve any matter of significance to the general administration of criminal justice. As we have said, it raises issues pertaining to the exercise of discretion in the application of the Rules. And, the merits of the appeal are far from strong, given all of the circumstances in this extraordinary matter. Moreover, the appellant has served his sentence.

[9] We would add that we find the appellant’s underlying claim of ineffective assistance of counsel to be entirely without merit.

[10] This is clearly not an appropriate case for granting leave to appeal. Leave to appeal is therefore dismissed.

“Gloria J. Epstein J.A.”

“Alexandra Hoy J.A.”

“P. Lauwers J.A.”