COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Velegjanin, 2020 ONCA 419

DATE: 20200629

DOCKET: M51313 (C60034)

Tulloch, Roberts and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Responding Party

and

Nikolai Velegjanin

Moving Party

Megan M. Schwartzentruber and Ben ElzingaCheng, for the moving party

Kevin Rawluk, for the responding party

Heard: in writing

On appeal from the order of Justice Todd Ducharme of the Superior Court of Justice, dated February 9, 2015, dismissing an appeal from the conviction entered on September 12, 2013, by Justice Lauren E. Marshall of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The moving party was charged with a number of offences arising out of an incident in his apartment building. While in a state of confusion and suffering from a broken jaw, the moving party attempted to gain entry to the wrong apartment. The complainant testified that, when he was denied entry, the moving party said “I’m going to kill you” in broken English. The police later found the moving party in his apartment with a rifle on the floor.

[2] The trial judge convicted the moving party of threatening death or bodily harm, careless use of a firearm, careless storage of a firearm, and careless storage of ammunition, contrary to ss. 264.1(1)(a), 86(1), 86(1), and 86(2) of the Criminal Code, R.S.C. 1985, c. C-46. The summary conviction appeal judge dismissed the appeal against the conviction for threatening death, but allowed it on the careless use and storage convictions, entering acquittals for those counts.

[3] Leave to appeal is sought on both grounds articulated in R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, namely, that the appeal raises issues of significance to the general administration of justice, and that the merits are strong and leave should be granted because of the serious consequences of a conviction. Specifically, the moving party argues that, while the law governing the offence of uttering a threat is well established, the case raises important issues regarding the adequacy of reasons for determinations as to an accused’s mental state. On the second ground, the moving party argues that the appeal judge: 1) erred in finding that he had the requisite mens rea for uttering a threat; 2) erred in failing to consider whether the reliability of the complainant’s evidence was undermined by his broken English; and 3) provided deficient reasons in that he failed to explain how it was decided that the moving party had the requisite mens rea.

[4] We would refuse leave to appeal. The appeal does not raise any issues of importance and there is no merit to the appellant’s arguments alleging an error by the summary conviction appeal judge. In our view, the appeal judge properly considered the record before him in upholding the conviction. He applied the correct legal test and gave clear and concise reasons as to how he arrived at his ultimate conclusion. The trial judge’s determinations that a threat was made, and that the moving party intended to make it, were open to her on the evidence. These were factual findings and subject to deference. There was no basis for the appeal judge to interfere.

[5] In all the circumstances, the motion for leave to appeal is dismissed.

“M. Tulloch J.A.”

“L.B. Roberts J.A.”

“Thorburn J.A.”