Court of Appeal for Ontario

Date: 2017-05-05 Docket: C62826

Judges: Gillese, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Brent Duwyn Appellant

Counsel

Nathan Gorham, for the appellant Craig Harper, for the respondent

Heard: May 3, 2017

Background

On appeal from the decision of the Summary Convictions Appeal Court dated October 7, 2016 by Justice Tamarin Dunnet of the Superior Court of Justice, dismissing the appeal from the conviction entered on November 18, 2014 by Justice Marvin A. Zuker of the Ontario Court of Justice.

Endorsement

Facts

[1] Brent Duwyn (the "applicant") was charged with assault, criminal harassment and mischief to property arising from a fight with his girlfriend (the "complainant"). After leaving a Raptors game, they got into an altercation. After the applicant called her names, the complainant slapped the applicant. He responded by spitting on her.

[2] The next day, the applicant sent the complainant a photo of a bag that she had left at his home. There was a picture of scissors at the top of the photo. She went to the applicant's home and discovered that he had cut up property of hers worth approximately $1,000.

[3] In a subsequent e-mail message, the applicant promised that he would never spit on her or destroy her property again. In the days that followed, the applicant repeatedly called and texted the complainant. The complainant did participate in exchanges of text messages with the applicant. However, even after she asked the applicant to stop contacting her, the texts continued. A series of texts – including one in which the applicant threatened to tell the complainant's new boyfriend that she had herpes – left her fearful.

Trial and Conviction

[4] The applicant was self-represented at trial. He was assisted by counsel, appointed under s. 486.3 of the Criminal Code to cross-examine the complainant. He was convicted of all three offences and given a 30-day intermittent sentence.

[5] The applicant brought a summary conviction appeal against conviction and sentence.

Grounds of Appeal

[6] On his conviction appeal, the applicant submitted that the trial judge: failed to fulfil his duty to provide reasonable assistance to a self-represented accused; created a reasonable apprehension of bias by referring to social science evidence; and, failed to consider the essential elements of assault and criminal harassment. On his sentence appeal, the applicant argued that the trial judge imposed a demonstrably unfit sentence.

[7] The summary conviction judge (the "SCAC judge") dismissed his appeal.

[8] The applicant now seeks leave to appeal that dismissal to this court.

Leave to Appeal Standard

[9] If leave is granted, the applicant would advance essentially the same grounds of appeal as he did before the SCAC judge with the exception that he characterizes the alleged errors as being committed by the SCAC judge in her review of the trial decision. So, for example, he would submit that the SCAC judge failed to properly identify and apply the legal principles governing a trial judge's duty to provide reasonable assistance to a self-represented accused.

[10] In R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, at para. 37, Doherty J.A. explained that leave to appeal pursuant to s. 839 should be granted sparingly. He stated that two key variables should be considered when determining whether to grant leave: the significance of the legal issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal.

[11] In our view, the putative appeal satisfies neither variable.

Analysis

[12] The issues that the applicant would raise, if leave were granted, do not have significance for the general administration of justice. The alleged errors relate to well-settled legal principles that do not require further elaboration.

[13] Furthermore, we see no merit to the proposed grounds of appeal. On the contrary, the reasons of the SCAC judge show that she correctly articulated the governing legal principles for each ground of appeal, carefully considered the relevant evidence, and fully explained why she rejected each ground. The applicant has not made out a strong case that the SCAC judge made a reversible error of law: R.R., at para. 36.

Disposition

[14] Accordingly, leave to appeal is refused.

"Eileen E. Gillese J.A."

"Grant Huscroft J.A."

"G.T. Trotter J.A."