Court of Appeal for Ontario

Citation: R. v. Khanna, 2016 ONCA 39 Date: 2016-01-15 Docket: C59357

Before: MacPherson, Watt and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Anil Khanna Applicant/Appellant

Counsel: Kristin Bailey, for the appellant John McInnes, for the respondent

Heard: January 13, 2016

On appeal from the decision of Justice Antonio Skarica of the Superior Court of Justice, sitting as a summary conviction appeal court on August 22, 2014, dismissing an appeal from the convictions entered on March 11, 2013 by Justice Ian B. Cowan of the Ontario Court of Justice.

ENDORSEMENT

[1] The applicant seeks leave to appeal from a decision of a judge of the Superior Court of Justice, sitting as a summary conviction appeal court, which affirmed the applicant’s convictions of assault with a weapon and assault. The complainant in each case was the applicant’s daughter.

[2] The issues upon which the applicant seeks leave to appeal relate to rulings made by the trial judge during cross-examination of the complainant when trial counsel for the applicant sought to cross-examine her on certain internet postings said to be inconsistent with her evidence. To be more specific, the applicant contends that the trial judge erred in law in invoking the collateral facts rule to curtail cross-examination of the complainant and the summary conviction appeal court erred in law in holding that the trial judge was not wrong in doing so.

[3] The applicant advanced this ground of appeal, among several others, before the summary conviction appeal court. The appeal judge rejected this ground on the basis that the rulings made revealed no error of law, rather constituted a reasonable exercise of the trial judge’s discretion to curtail cross-examination on collateral issues not apt to assist in the resolution of the issues in dispute.

[4] It is well-settled that second appeals in summary conviction proceedings are exceptional. Leave to appeal is granted sparingly: R. v. R.(R.), 2008 ONCA 497, at para. 37. In the absence of a single litmus test that identifies all cases in which leave to appeal should be granted, two variables assume prominence:

i. the significance of the legal issues raised to the general administration of criminal justice; and

ii. the merits of the proposed grounds of appeal. R.(R.), at para. 37.

[5] In the first category, leave to appeal may be granted where the merits of the proposed question of law alone are arguable, even if not strong, but the proposed question of law has significance to the administration of criminal justice beyond its idiosyncratic factual matrix. In the second category, leave to appeal may also be granted where there appears to be a “clear” legal error, even if it cannot be said that the error has significance to the administration of criminal justice beyond the four corners of the case in which leave to appeal is sought: R.(R.), at para. 32. This is especially so where the conviction is serious and the applicant faces a significant deprivation of his or her liberty: R.(R.), at para. 37.

[6] In our view, the proposed ground of appeal does not warrant granting leave to appeal upon either basis described in R.(R.).

[7] We begin with a reminder that a second appeal in summary conviction proceedings represents the exception, not the rule.

[8] Second, mere identification of a question of law alone is not sufficient to warrant granting leave to appeal.

[9] Third, we are not persuaded that the trial judge invoked the collateral facts rule to curtail cross-examination. After all, the rule does not regulate cross-examination of an opposing witness about prior utterances that contradict his or her testimony on a collateral matter. The rule governs the ability of the cross-examiner to introduce extrinsic evidence in his or her case to contradict answers given by an opposing witness on a collateral issue. As we read the record, the impugned ruling reflected the exercise of the firmly-rooted judicial discretion to confine cross-examination within appropriate limits. Even if the trial judge erred in the exercise of that discretion, the error is at best an error of mixed fact and law not cognizable on an appeal under s. 839(1) of the Criminal Code: Fanjoy v. The Queen, 1985 53 (SCC), [1985] 2 S.C.R. 233, at pp. 238-239.

[10] Fourth, even if we could tease out of the ruling an error of law, such a decision does not transcend the peculiar factual matrix of this case and have significance to the administration of criminal justice beyond its boundaries.

[11] Finally, what occurred here was not preclusive of trial counsel’s right to cross-examine the complainant about her motives to fabricate her allegations. Cross-examination on the complainant’s motives was permitted and pursued, curtailed only in relation to internet postings and chats of negligible assistance in resolving any contested factual issues at trial.

[12] For these reasons, leave to appeal is refused.

“J.C. MacPherson J.A.”

“David Watt J.A.”

“B.W. Miller J.A.”