COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bresnark, 2013 ONCA 320

DATE: 20130514

DOCKET: C53032

Weiler, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Bresnark

Appellant

Steven Bresnark, acting in person

Michael Medeiros, for the respondent

Heard: May 10, 2013

On appeal from the decision of the Summary Conviction Appeal Court dated November 12, 2010 by Justice Edward Belobaba of the Superior Court of Justice, dismissing the appeal from the conviction entered on July 15, 2008 by Justice Kofi N. Barnes of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant uttered the following words in respect of a Crown Attorney who had once prosecuted him:

She is Draconian and she is a bitch and she should get her throat slashed.

[2] The words were addressed to a fellow employee of the Crown Attorney at the Department of Justice some four months after the appellant had been convicted of the offence which the Crown Attorney had prosecuted. The appellant made a slashing motion with his hand across his own throat as he uttered the words.

[3] Following a one day trial, the trial judge found the appellant guilty of knowingly uttering a threat to cause death.

[4] The appellant brought a summary conviction appeal, which was dismissed. Before the summary conviction appeal court judge, the appellant argued numerous grounds of appeal, including that the trial judge failed to property apply the test set out in R. v. Clemete, 1994 CanLII 49 (SCC), [1994] 2 S.C.R. 758, which sets out the manner in which a court should approach a charge of threatening, that the Crown failed to prove its case beyond a reasonable doubt, and that the threat was not conveyed to the Crown Attorney. The summary conviction appeal court judge carefully considered each of the grounds of appeal advanced by the appellant and explained why they could not succeed. In the case of the argument that the threat was not conveyed, the summary conviction appeal judge explained that Clemente held that the intended victim need not be aware of the threat.

[5] The appellant now seeks leave to appeal to this court pursuant to s. 839 of the Criminal Code. If granted leave, he would again argue that, if Clemente were correctly applied, the words he uttered would not be found to amount to a threat. He would also argue that his conviction was unreasonable and the summary conviction appeal court judge provided insufficient reasons. We note that the numerous grounds argued before the summary conviction appeal court judge did not include that his conviction was unreasonable.

[6] Leave to appeal to this court from a summary conviction appeal pursuant to s. 839 is granted sparingly, and only when some exceptional circumstance justifies a further appeal.

[7] The alleged error must be a question of law. Moreover, either (1) the merits of the appeal must be at least arguable and the issue must have general significance to the administration of justice beyond the particular case, or (2) the merits of the appeal must appear very strong: see R. v. R.R. (2008), 2008 ONCA 497, 234 C.C.C. (3d) 463 (Ont. C.A.), at paras. 31 and 37.

[8] We are not satisfied that the requirements for leave to appeal have been met. To the extent the grounds the appellant seeks to raise are questions of law, they are not of general significance to the administration of justice beyond this particular case. Clemente is long- settled law. Nor do the merits of the appeal appear very strong. Indeed, in our view, there is no merit to this appeal.

[9] The appellant’s primary contention is that the words uttered did not convey a threat. The trial judge concluded that, in all of the circumstances, they did. The summary conviction appeal court judge in turn concluded that the trial judge correctly assessed the words used, the context in which they were spoken and the person to whom they were directed in finding that the appellant’s words amounted to a threat, and that the trial judge’s finding did not constitute a reviewable error. We agree. The correct legal test was applied. The determination that a threat was made was essentially a factual determination, and on the evidence was fully open to the trier of fact to make.

[10] Leave to appeal is accordingly denied.

“K.M. Weiler J.A.”

“E.E. Gillese J.A.”

“Alexandra Hoy J.A.”