Her Majesty the Queen v. Lukaniuk[^1]

[Indexed as: R. v. Lukaniuk]

Ontario Reports

Court of Appeal for Ontario,

MacFarland J.A. (in Chambers)

August 29, 2013

116 O.R. (3d) 765 | 2013 ONCA 533

Case Summary

Criminal law — Bail — Bail pending appeal — Accused seeking leave to appeal summary conviction appeal decision affirming his conviction and sentence for assault causing bodily harm — Crown applying successfully to have leave application and accused's application for bail pending appeal heard at same time by single judge — Not unfair to accused as required to demonstrate that appeal not frivolous to obtain bail and to satisfy that test accused must demonstrate that leave to appeal from the summary conviction appeal decision should be granted — Leave denied as appeal raising no questions of law alone, issues did not have significance beyond this case and were without merit — Bail application dismissed as appeal did not meet requirements of s. 839(1) of Code — Criminal Code, R.S.C. 1985, c. C-46, s. 839(1).

The accused was convicted of assault causing bodily harm to his son and received a four-month conditional sentence followed by three years' probation. His appeals from conviction and sentence were dismissed by the summary conviction appeal court. The accused applied for leave to appeal and for bail pending appeal. The Crown moved to have the leave application heard at the same time as the bail application.

Held, the Crown's motion should be granted; the accused's applications should be dismissed. [page766]

The accused argued that it was unfair to determine whether leave to appeal should be granted at same time as bail because the accused need only establish that the appeal was not frivolous to obtain, whereas the requirements for granting leave to appeal imposed a higher burden. However, under s. 679(3)(a) of the Criminal Code, an appellant must establish that the appeal or application for leave to appeal is not frivolous. To do so, an appellant seeking to appeal from a summary conviction appeal must establish that the appeal meets the requirements of s. 839(1). Therefore, in this case it was not unfair to require the accused to address both tests in order to obtain bail. The accused could not meet the test for leave to appeal under s. 839(1) of the Code. None of the issues he raised amounted to a question of law alone, none had significance beyond his own case and in any event they were without merit. As the accused failed to meet that test, his application for bail could not succeed. Admitting someone to bail pending an application for leave to appeal that was doomed to fail would be an affront to the administration of justice.

Cases referred to

R. v. Metin (2013), 113 O.R. (3d) 716, [2013] O.J. No. 176, 2013 ONCA 21, 302 O.A.C. 35; R. v. R. (R.) (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497, 238 O.A.C. 242, 59 C.R. (6th) 258, 234 C.C.C. (3d) 463, 78 W.C.B. (2d) 606

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 110 [as am.], 679(3)(a), 839(1) [as am.]

APPLICATIONS by the accused for leave to appeal and for bail pending an appeal; MOTION by the Crown to have the applications heard together.

Steve Dallal, for Gerald Lukaniuk.

John Patton, for Attorney General of Ontario.

[1] Endorsement of MACFARLAND J.A. (in Chambers): — There are two motions before the court. The first is by the appellant for bail pending his application for leave to appeal and if leave is granted, pending his appeal. The second is a motion by the Crown to have the leave to appeal motion in this summary conviction matter heard now.

[2] As was noted by MacPherson J.A. in R. v. Metin (2013), 113 O.R. (3d) 716, [2013] O.J. No. 176, 2013 ONCA 21, at para. 3:

In Ontario, a practice has arisen in "the vast majority of summary proceeding matters" whereby a panel of this court will hear the application for leave to appeal and the appeal itself, together at a single hearing: see R. v. R. (R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641 (C.A.), at para. 2.

[3] Here, as in Metin, the Crown proposes a different route for the determination of the appellant's application for leave to appeal. I agree with my colleague that a single judge of this court does have jurisdiction under s. 839(1) of the Criminal Code, R.S.C. 1985, c. C-46 to determine a motion for leave to appeal. [page767]

[4] As Doherty J.A. noted in R. v. R. (R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641, [2008] O.J. No. 2468 (C.A.):

The leave requirement in s. 839 can perform its proper function only if it is addressed separately from the ultimate merits of the appeal. A separate preliminary consideration of the question of leave should also quickly eliminate those cases from the system that do not warrant leave to appeal. In my experience, most summary conviction matters brought to this court should fail at the leave to appeal stage.

[5] In Metin, supra, the court set out the test for granting leave to appeal under s. 839(1) of the Criminal Code, at para. 15:

The test for granting leave to appeal under s. 839(1) of the Criminal Code encompasses three factors: (1) the proposed appeal must involve a question of law alone; (2) the proposed question of law must be significant, beyond the particular case, to the administration of justice in the province; and (3) the proposed appeal should have some apparent merit: see R. (R.), at paras. 29-31.

Facts

[6] On November 4, 2008, the appellant was convicted of assault causing bodily harm by Sutherland J. of the Ontario Court of Justice. The charge related to an offence committed against his son on June 12, 2007. On January 6, 2009, he was sentenced to a four-month conditional sentence, a three-year probation order on completion of his four-month conditional sentence, an order pursuant to s. 110 of the Criminal Code that he not have in his possession any firearms, explosive substances or other devices for a period of five years, and a mandatory DNA order.

[7] The appellant instituted appeal proceedings from his conviction and sentence in the Superior Court of Justice in 2009. His conviction appeal was argued November 22, 2012, and reasons dismissing that appeal were released November 30, 2012.

[8] His sentence appeal was argued June 13, 2013, and reasons dismissing that appeal were released June 21, 2013. He now seeks leave to appeal to this court on both conviction and sentence.

[9] It has been over six years since the event that gave rise to this charge occurred. I note that the summary conviction appeal judge added a footnote 3, at p. 7 of her reasons, which reads:

It should be noted that the Appellant was given significant accommodation during this summary conviction appeal process. It appears from the record that the matter has been before this Court approximately 38 times. It was adjourned to obtain transcripts, to retain counsel, to file a factum, for medical reasons, etc. As I have stated above, despite the fact that the appellant's appeal was dismissed in November, 2012, I permitted him to argue the sentence appeal. During oral argument, the Appellant used the majority of the ninety minutes of court time and was permitted to consult with those in the courtroom who were there to support him on two occasions. [page768]

[10] This goes someway to explain why this case has taken so long to work its way through the system.

[11] At his trial in the Ontario Court of Justice, the appellant was represented by counsel. Following his conviction and before he was sentenced, he discharged counsel and represented himself at the sentencing hearing. At the hearing of his conviction appeal before the summary conviction appeal court, he was assisted by one Raymond Lee Hathaway, who was then preparing for his paralegal examination. It appears he was self-represented on the hearing of his sentence appeal before that court. He is represented by counsel before this court.

[12] Many of the grounds of appeal raised before this court are the same grounds he raised before the summary conviction appeal court. They include

-- his several arguments in relation to the competence of counsel;

-- the fact his former wife was disbelieved in other unrelated judicial proceedings and, accordingly, ought to have been disbelieved at his trial;

-- failure of the trial judge to consider and give weight to a contact sheet of photographs of the complainant.

[13] In addition to these grounds, he argues

that the trial judge erred in not recognizing that the charge of assault was wrong in law and the complainant, both at trial and on sentence was attempting to invite a physical confrontation and therefore he, the appellant, was not guilty of any assault;

-- that his trial was time limited to one day;

-- the trial judge may have been biased;

that his submissions rather than those of his former counsel should be considered in relation to his appeal.

[14] As to his sentence appeal, I would summarize the grounds as follows:

the trial judge proceeded with his sentencing hearing without having read the pre-sentence report -- but that a "light reading" of that report (during the sentencing hearing) resulted in his sentence being reduced from nine months' incarceration to four months of house arrest. Had the trial judge read it more closely, he argues, it may have resulted [page769] in a suspended sentence or his conviction being overturned;

that the terms of his conditional sentence frustrated the trial judge's intention that the sentence not interfere with the appellant's work;

the trial judge was biased against him because he did not have a lawyer.

[15] None of the grounds raised amount to an error in law alone. At best, they concern issues of mixed fact and law in areas of law that are well settled. Counsel did not press the conviction appeal. He emphasized the sentence appeal and candidly stated that he thought it to be the strongest aspect of the proposed appeal.

[16] The appellant was given a very full and thorough hearing by the summary conviction appeal judge on both his conviction and sentence appeals. She dealt with each of his arguments in turn and gave careful reasons for rejecting them.

[17] In my view, the appellant cannot meet the test for leave to appeal to this court. None of the issues he raises amount to a question of law alone, none have significance beyond his own case and in any event are without merit.

[18] I would deny leave to appeal and, having done so, his bail application accordingly fails.

[19] His counsel argues that I should not consider his application for bail and the leave application at the same time. He says it is unfair to his client to do so because the test to be admitted to bail pending an application for leave to appeal is less onerous than the test for leave to appeal. He says he needs only to show his appeal is arguable on a bail application and need not meet the heavier burden required on an application for leave to appeal to this court. I do not agree. Under s. 679(3)(a) of the Criminal Code, the appellant must establish firstly that the appeal or application for leave to appeal is not frivolous. To do so, the appellant must establish that his appeal meets the requirements of s. 839(1) as interpreted by R. v. R. (R.), supra. For the reasons set out above, the appellant, here, fails to meet that test. Accordingly, his application for bail cannot succeed. Admitting someone to bail pending an application for leave to appeal that is doomed to fail would be an affront to the administration of justice.

[20] On the particular facts of this case, it was appropriate to bring the leave application at the same time as the bail application. It may not always be so, but where it can be done, it is the preferable procedure. [page770]

[21] For these reasons, the application for bail pending appeal is dismissed and the application for leave to appeal to this court is dismissed.

Crown's motion granted; accused's applications

dismissed.

[^1]: Vous trouverez la traduction française à la p. 770, post.

End of Document