Court of Appeal for Ontario

Citation: R. v. Porta, 2015 ONCA 924

Date: 2015-12-24

Docket: C56282

Before: Juriansz, Watt and Miller JJ.A.

Between:

Her Majesty the Queen

Respondent

and

Leon Porta

Appellant

Counsel:

Robert Sheppard, for the appellant

Lorna Bolton, for the respondent

Heard and released orally: December 18, 2015

On appeal from the decision of the Summary Convictions Appeal Court dated September 12, 2012 by Justice Johanne N. Morissette of the Superior Court of Justice, dismissing an appeal from the conviction entered on April 4, 2012 by Justice Gregory A. Pockele of the Ontario Court of Justice.

Endorsement

[1] In our view this is not a case in which leave to appeal should be granted.

[2] In oral argument, Mr. Sheppard acknowledged that the agreement s. 786(2) requires to regularize summary conviction proceedings instituted beyond the limitation period for which the subsection provides, may be inferred, and, although preferable, need not be explicit. It is his submission that it was not open to the summary conviction appeal court judge to infer the necessary agreement in this case.

[3] We disagree.

[4] We are of the view that there was an adequate evidentiary foundation for the summary conviction appeal court judge to infer the necessary agreement. That she did so on this evidence does not raise a question of law in the strict sense required under s. 839(1)(a) of the Criminal Code.

[5] The correctness of the summary conviction appeal court judge’s conclusion from that evidence raises at best, a question of mixed fact and law, which cannot be the subject of an appeal to this court under s. 839(1)(a) of the Criminal Code.

[6] Leave to appeal is refused.

“R.G. Juriansz J.A.”

“David Watt J.A.”

“B.W. Miller J.A.”