Court of Appeal for Ontario

CITATION: R. v. Vardomskiy, 2014 ONCA 142

DATE: 20140225

DOCKET: C57337

Weiler, Rosenberg and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Boris Vardomskiy

Respondent

John Pearson, for the applicant/appellant

Solomon Friedman, for the respondent

Heard: February 3, 2014

On appeal from the decision of the Summary Convictions Appeal Court dated June 14, 2013 by Justice B. Abrams of the Superior Court of Justice, allowing the appeal from the conviction entered on May 2, 2012 by Justice D.M. Nicholas of the Ontario Court of Justice.

By the Court:

[1] In our view, this is not a proper case to grant leave to appeal from the judgment of the appeal judge. In order for leave to appeal to be granted pursuant to s. 839 of the Criminal Code, the applicant must raise a question of law in relation to a matter of public importance or demonstrate a clear error of law requiring that leave be granted for the due administration of justice. In our opinion the applicant Crown does not meet either branch of the test for granting leave as set out in R. v. R.R. (2008) 2008 ONCA 497, 234 C.C.C. (3d) 463 (Ont. C.A.).

[2] The question of law raised is whether the hearing judge reversed the burden of proof. The applicant does not otherwise challenge the test applied by the appeal judge. With respect to the first branch of the test, we are not persuaded that the applicant has raised a matter of public importance. Whether or not a trial judge or, as in this case, a hearing judge may have reversed the burden of proof does not alone engage a matter of public importance; this is a matter that is regularly dealt with by summary conviction appeal courts and this court. The fact that the burden of proof on the Crown under s. 117.05 of the Criminal Code is on a balance of probabilities rather than the usual burden of proof beyond a reasonable doubt does not mean that the simple allegation of shifting the burden of proof raises a matter of public importance.

[3] We are also not persuaded that there is a clear error of law requiring that leave be granted for the due administration of justice. This is, if anything, a close case. Language used by the hearing judge was capable of supporting the appeal judge’s view that the hearing judge did reverse the burden of proof.

[4] Accordingly, leave to appeal is refused and the appeal judge’s order for a new hearing will stand.

[5] We make this comment. Having decided the issue of the burden of proof, the appeal judge went on in obiter at paragraphs 77 to 81 to deal at some length with factors that have been considered in other cases as either positive or negative on the question of the desirability of the owner possessing firearms and ammunition and being subject to a prohibition order. In our view, while the factors referred to may be helpful, the hearing judge is required to consider all of the circumstances. There were factors in this case, not listed by the appeal judge, which could support the forfeiture and prohibition order, especially the violent messages left by the respondent and the large amount of firearms and ammunition, given the owner’s professed use of the firearms for target practice.

[6] We also observe that it would have been better for the appeal judge to have foregone his concluding remarks in para. 82 regarding the Crown’s difficulty in meeting the burden of proof on the new hearing, even assuming the same evidence is led at that hearing.

Released: “KMW” February 25, 2014

“K.M. Weiler J.A.”

“M. Rosenberg J.A.”

“R.A. Blair J.A.”