Court of Appeal for Ontario
CITATION: R. v. McLean, 2016 ONCA 38
DATE: 20160115
DOCKET: C59407
MacPherson, Watt and Miller JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Mitchell McLean
Appellant
Giuseppe Cipriano, for the appellant
John McInnes, for the respondent
Heard: January 13, 2016
On appeal from the decision of the Summary Conviction Appeal Court dated August 27, 2014 by Justice Martin S. James of the Superior Court of Justice, dismissing the appeal from the conviction entered on October 1, 2013 by Justice Grant Radley-Walters of the Ontario Court of Justice.
ENDORSEMENT
[1] The appellant was convicted under s. 249.1(1) of the Criminal Code, R.S.C. 1985, c. C-46, for failing to stop a vehicle while being pursued by police. His summary conviction appeal was dismissed and he now seeks leave to appeal to this Court on two questions of law: Did the summary conviction appeal judge err in holding that:
the offence of failure to stop while being pursued by police can be widened “to include any momentary movement from police”; and
“evidence of flight on foot constitutes vehicular flight.”
[2] With respect to the first proposed question of law, there is an obstacle in that it assumes facts that are contrary to the findings of the trial judge, findings which were upheld at the summary conviction appeal and are not challenged here. The appellant did not call any evidence at trial and the Crown’s evidence was uncontroverted.
[3] The appellant misstates the record to the extent that he characterizes the vehicular stop as a momentary delay in compliance, rather than the conclusion of a course of deliberate evasion of a police pursuit.
[4] With respect to the second proposed question of law, neither the trial judge nor the summary conviction appeal judge found the appellant’s subsequent flight on foot to have been an element of the offence. Rather, as the summary conviction appeal judge held, “the attempt to flee on foot is probative of the mens rea element required to prove the offence for which the appellant was convicted.” That is, the further flight into a remote ravine in the early morning, while being pursued by police shouting “stop, police”, is some evidence that moments before, when he manoeuvered his vehicle away from the police, it was with the intention to evade the police.
[5] The proposed question is thus not arguable.
[6] Additionally, as the summary conviction appeal judge noted, the elements of s. 249.1 are well settled in R. v. Kulchisky, 2007 ABCA 110, [2007] A.J. No. 323, at para. 4, and the proposed appeal has no general significance to the administration of justice beyond the facts of this case: see R. v R. R., 2008 ONCA 497, 90 O.R. (3d) 641, at para 32.
[7] Leave to appeal is refused.
“J.C. MacPherson J.A.”
“David Watt J.A.”
“B.W. Miller J.A.”