R. v. Barber, 2015 ONSC 2566

CITATION: R. v. Barber, 2015 ONSC 2566

COURT FILE NO.: SCA(P) 905/2015

DATE: 20150420

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Donald Barber

BEFORE: Justice Hill

COUNSEL: S. Doyle, for the Respondent

Mr. Barber, the Applicant, in person

HEARD: April 17, 2015

ENDORSEMENT

[1] Mr. Barber has launched an in-person summary conviction appeal to this court against conviction and sentence. After a trial before Schwarzl J., the applicant was found guilty of assault with a weapon and on conviction was sentenced on March 18, 2015 to a $150 fine with six (6) months to pay. In addition, the applicant was sentenced to an eight(8)-month order of probation on the mandatory statutory terms set out in s. 732.1(2) of the Criminal Code of Canada, including that he keep the peace and be of good behaviour, and the further condition that he:

[N]ot associate or communicate, either directly or indirectly, with Terry Carew except as may be necessary during your lawful attendance at any public building or property or while Mr. Carew is in the lawful execution of his duty.

[2] In addition, the court exercised its discretion to issue a three(3)-year weapons prohibition order (pursuant to s. 110 of the Code). Two other orders were made: a s. 487.051 DNA order (s. 267 assault with a weapon crime being a “primary designated offence” per s. 487.04), and, a mandatory victim surcharge order of $22.50 with six (6) months to pay (s. 737).

[3] The applicant’s Notice of Appeal dated April 10, 2015 sets out these grounds of appeal:

(1) “The Judge made palpable and overriding errors of fact and findings.

(2) The Judge improperly weighted testimony and evidence.

(3) The Judge also failed to properly consider the Defence theory’s.

(4) The legal and factual findings concerning the lost evidence Charter Application.

(5) That the Trial Judge erred in principle by failing to give adequate weight to aggravating factors.

(6) That the Trial Judge erred in principle by giving too much weight to mitigating factors.

(7) The conduct of the Trial Judge.”

[4] The applicant is currently legally unrepresented although he hopes to retain counsel for the appeal. The court encouraged the applicant to retain counsel to appear when today’s application, an application to stay the trial court’s sentence orders and corollary orders, comes back before the court on May 22, 2015.

[5] Section 822(1) of the Code, applicable to summary conviction appeals to this court, incorporates by reference s. 683(5) dealing with indictable appeals:

POWER TO ORDER SUSPENSION – If an appeal or an application for leave to appeal has been filed in the court of appeal, that court, or a judge of that court, may, when the court, or the judge, considers it to be in the interests of justice, order that any of the following be suspended until the appeal has been determined:

(a) an obligation to pay a fine;

(b) an order of forfeiture or disposition of forfeited property;

(c) an order to make restitution under section 738 or 739;

(d) a probation order under section 731; and

(e) a conditional sentence order under section 742.1.

[6] As is evident from the text of this statutory provision, in appropriate cases, the court may exercise its discretion to enter a stay of certain trial court orders specifically a fine, a probation order, and a victim surcharge order. The provision does not authorize a stay of a weapons prohibition order or a DNA order.

[7] As a general rule, an application to stay of the type sought by the applicant requires the court to consider the following cumulative factors as to whether the issue of such a discretionary remedy is in the interests of justice:

(1) Whether the appeal against conviction and/or sentence is arguable – in other words, is there a reasonable prospect of success such that it cannot be said that the appeal is frivolous?

(2) Is there any particular hardship for this applicant in terms of complying with the orders? For example, can the applicant afford to pay any monetary fine or order within the time given to pay?

(3) What public safety concerns are being served by the orders of the trial court which the applicant seeks to stay? For example, is a victim being protected by a probation order term?

(4) Are there any other compelling circumstances in the specific case which favour the court exercising its discretion to order a stay?

[8] In oral submissions, Mr. Barber argued that because the assault with a weapon crime of which he was convicted involved less serious circumstances with the weapon being a camera, a stay would be appropriate. It was submitted that in such circumstances the mandatory imposition of a DNA order is an extreme and disproportionate sanction amounting to cruel and unusual punishment applying the reasoning in Regina v. Nur; Regina v. Charles, 2015 SCC 15.

[9] The applicant was legally represented at trial by presumptively competent counsel. The conviction and sentence are valid unless set aside or modified on appeal based upon proper grounds for appellate intervention under Part XXVII of the Code.

[10] The grounds relating to the conviction appeal as articulated in the Notice of Appeal are pleaded in generic and broad terms. Ordinarily, in order for this court to deliberate upon the question as to whether an arguable appeal exists, the record includes relevant trial transcript excerpts, an affidavit from trial counsel, a Legal Aid opinion letter, or some equivalent reliable source illustrative of the ground(s) of appeal. No such record exists here. It cannot be determined that Mr. Barber has an arguable appeal against conviction.

[11] As to the applicant’s appeal against sentence, on the face of the sentence and related corollary orders, there is no disposition which is clearly contrary to law or unduly harsh. With respect to the argument that the imposition of a DNA order offends the applicant’s s. 12 Charter right, the submission is without merit. The imposition of a DNA order in the instance of conviction for a primary designated offence is presumptive not mandatory – s. 487.051(2) of the Code defines the discretionary circumstances in which a sentencing court is not required to impose such an order. Accordingly, the Nur/Charles decisions are irrelevant. Further, and in any event, the applicant has not, in light of the limited scope of s. 683(5) governing the suspension of identified orders by a statutory court of appeal, described the jurisdictional authority of this court to stay a DNA order or a weapons prohibition order. In the case of a successful appeal, the appeal court may exercise its discretion to order an appellant’s DNA, previously provided, to be destroyed: R. v. Mekonnen, 2013 ONCA 414, at para. 55. The financial consequences of the trial court’s orders are modest and do not constitute undue hardship. As to the public safety, the victim, and the community at large, are protected by the immediate operation of the imposed probation and weapons prohibition orders. There are no other fact-specific special circumstances here.

[12] In light of deficiencies in the application record, Mr. Barber sought an adjournment in particular to acquire material relating to his conviction appeal, and also sought an interim stay until the return date scheduled for argument.

[13] Given the court’s observations respecting hardship and public safety it is unlikely that satisfaction of the arguable appeal factor would itself justify a stay. Nevertheless, considering the applicant’s current self-represented status, the adjournment request was granted for a de novo application hearing on May 22, 2015. Assuming that an interim stay is an order available to the court, no basis was made out for the granting of such an order.

Hill J.

Date: April 20, 2015