



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vardomskiy, 2014 ONCA 142

DATE: 20140225

DOCKET: C57337

Weiler, Rosenberg and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Boris Vardomskiy

Respondent

John Pearson, for the applicant/appellant

Solomon Friedman, for the respondent

Heard: February 3, 2014

On appeal from the decision of the Summary Convictions
    Appeal Court dated June 14, 2013 by Justice B. Abrams of the Superior Court of
    Justice, allowing the appeal from the conviction entered on May 2, 2012 by
    Justice D.M. Nicholas of the Ontario Court of Justice.

By the Court:

[1]

In our view,
this is not a proper
    case to grant leave to appeal from the judgment of the appeal judge. In order
    for leave to appeal to be granted
pursuant to s. 839 of the
Criminal Code
, the applicant must raise a question of law in
    relation to a matter of public importance or demonstrate a clear error of law
    requiring that leave be granted for the due administration of justice. In our
    opinion the applicant Crown does not meet either branch of the test for
    granting leave as set out in
R. v. R.R.
(2008) 234 C.C.C. (3d) 463 (Ont. C.A.).

[2]

The question of law raised is
    whether the hearing judge reversed the burden of proof.  The applicant does not
    otherwise challenge the test applied by the appeal judge. With respect to the
    first branch of the test, we are not persuaded that the applicant has raised a
    matter of public importance. Whether or not a trial judge or, as in this case,
    a hearing judge may have reversed the burden of proof does not alone engage a
    matter of public importance; this is a matter that is regularly dealt with by
    summary conviction appeal courts and this court. The fact that the burden of
    proof on the Crown under s. 117.05 of the
Criminal Code
is on a balance of probabilities rather than the
    usual burden of proof beyond a reasonable doubt does not mean that the simple allegation
    of shifting the burden of proof raises a matter of public importance.

[3]

We are also not persuaded that
    there is a clear error of law requiring that leave be granted for the due
    administration of justice. This is, if anything, a close case. Language used by
    the hearing judge was capable of supporting the appeal judges view that the
    hearing judge did reverse the burden of proof.

[4]

Accordingly, leave to appeal is
    refused and the appeal judges order for a new hearing will stand.

[5]

We make this comment. Having
    decided the issue of the burden of proof, the appeal judge went on in
obiter
at paragraphs 77 to 81 to deal at some
    length with factors that have been considered in other cases as either positive
    or negative on the question of the desirability of the owner possessing
    firearms and ammunition and being subject to a prohibition order. In our view,
    while the factors referred to may be helpful, the hearing judge is required to
    consider all of the circumstances. There were factors in this case, not listed
    by the appeal judge, which could support the forfeiture and prohibition order,
    especially the violent messages left by the respondent and the large amount of
    firearms and ammunition, given the owners professed use of the firearms for
    target practice.

[6]

We also observe that it would have
    been better for the appeal judge to have foregone his concluding remarks in
    para. 82 regarding the Crowns difficulty in meeting the burden of proof on the
    new hearing, even assuming the same evidence is led at that hearing.

Released: KMW February 25, 2014

K.M. Weiler J.A.

M. Rosenberg J.A.

R.A. Blair J.A.


