



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sears, 2021 ONCA 522

DATE: 20210716

DOCKET: M52559 & M52561

Brown
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Responding Party

and

James
    Sears

Applicant

James Sears, acting in person

Ian McCuaig, assisting the applicant

Michael Bernstein, for the responding
    party

Heard: June 18, 2021 by video conference

ENDORSEMENT


I.

OVERVIEW

[1]

The applicant, James Sears, applies for leave to appeal from the order
    of the Summary Conviction Appeal Judge, Cavanagh J. (the Appeal Judge), and,
    if leave is granted, bail pending appeal.

[2]

On January 24, 2019, the applicant and his co-accused, LeRoy (Lawrence)
    St. Germaine, were found guilty on two counts of willfully promoting hatred
    against identifiable groups  Jews and women  contrary to s. 319(2) of the
Criminal
    Code
. Neither accused testified at trial. The trial judge sentenced the
    applicant to a term of imprisonment of six months on each count, to be served
    consecutively.

[3]

The convictions stemmed from statements written and published by the
    applicant and his co-accused in 22 issues of a newspaper called Your Ward
    News distributed in Toronto and online between January 2015 and June 2018.

[4]

The applicant appealed his conviction and sentence to the Superior Court
    of Justice. The Appeal Judge dismissed the appeal:
R. v. Sears,
2021
    ONSC 4272 (Appeal Reasons).

[5]

The applicant then applied before this court for leave to appeal his
    conviction and sentence pursuant to
Criminal Code
s. 839(1). As well, the
    applicant sought bail pending his appeal.

[6]

The applications came before me on Monday, June 14, 2021. I advised the
    applicant that his application for bail pending appeal would necessarily entail
    a consideration of the merits of his leave to appeal application. Although I
    had jurisdiction to hear his application for leave to appeal
[1]
,
    the practice of this court is for a panel to consider such applications in
    writing:
Criminal Code
, s. 839(1); 
Practice
    Direction Concerning Criminal Appeals at the Court of Appeal for Ontario
,
    (March 1, 2017), at 7.3.6. The applicant advised that he wished to proceed
    before a single judge. I adjourned the hearing until Friday, June 18, 2021 to
    permit the applicant to file further materials.


II.

GOVERNING PRINCIPLES

[7]

An appeal to the Court of Appeal in summary conviction matters lies,
    with leave, on any ground that involves a question of law alone:
Criminal
    Code
, s. 839(1). The principles governing such applications for leave
    were summarized by this court in
R. v. Lam
, 2016 ONCA 850, at paras. 9
    and 10, leave to appeal refused, [2017] S.C.C.A. No. 2:

Section 839(1) of the
Criminal
    Code
limits appeals to this court from decisions of summary
    conviction appeal courts to grounds involving questions of law alone and
    requires that leave to appeal be granted by this court. This second level of
    appeal in summary conviction proceedings is an appeal from the decision of the
    summary conviction appeal court, not a second appeal from the decision of the
    trial court. The appeal is limited to questions of law alone and does not extend
    to questions of fact alone or of mixed fact and law, as do appeals to the
    summary conviction appeal court from decisions made at trial. Second appeals in
    summary conviction proceedings are the exception, not the rule:
R. v.
    R.(R)
, 2008 ONCA 497, 90 O.R. (3d) 641, at para. 25.

Two key variables influence the leave
    decision:

 The significance of the legal issue(s)
    raised to the general administration of criminal justice

 The merits of the proposed ground(s) of
    appeal.

Issues that have significance to the administration
    of criminal justice beyond the particular case may warrant leave to appeal,
    provided the grounds are at least arguable, even if not especially strong. And
    leave to appeal may also be granted even if the issues lack general importance,
    provided the merits appear very strong, especially if the conviction is serious
    and an applicant is facing a significant deprivation of his or her
    liberty:
R.(R.)
, at para. 37.

[8]

To those principles I would add two others. First,
    since an appeal pursuant to s. 839(1) is an appeal against the judgment of the
    summary conviction appeal court, not a second appeal of the trial judgment, the
    leave to appeal judge should determine whether the summary conviction appeal
    judge properly applied the principles governing appellate review of the trial
    decision:

John Sopinka, Mark Gelowitz & W.
    David Rankin,
Sopinka and Gelowitz on the Conduct of an Appeal
, 4th
    ed. (Toronto: LexisNexis, 2018), at §3.119;
R. v. McCammon
, 2013 MBCA
    68, 294 Man. R. (2d) 194, at paras. 21, 36;
R. v. C.S.M.
,
2004 NSCA 60, 223 N.S.R. (2d) 311, at
    para. 26.

[9]

Second, the leave to appeal test should be relaxed where the summary
    conviction appeal decision is, in effect, a decision of first instance, for
    example where the appeal court reverses a decision of the trial court by
    substituting an acquittal for a conviction:
R. v. OMeara
, 2012 ONCA
    420, 292 O.A.C. 358, at para. 25. That a new issue arose for the first
    time on the summary conviction appeal is an important contextual factor within
    which to address the
R. v. R.R.
,
    2008 ONCA 497, 90 O.R. (3d) 641,
test:
R. v. MacKay
, 2012
    ONCA 671, 112 O.R. (3d) 561, at paras. 21-22.

III.

THE APPLICANTS GROUNDS OF APPEAL

[10]

The
    applicant acts in person. As a former medical doctor, the applicant is very
    articulate. However, his written materials at times lack focus or sufficient
    legal particularity.

[11]

The
    applicants Notice of Appeal identifies six grounds of appeal, which really
    amount to five as the fourth and sixth grounds essentially relate to the same
    sentencing issue concerning the imposition of consecutive sentences. The
    applicants Notice of Application for Release Pending Appeal and Leave to
    Appeal repeats three of the grounds contained in the Notice of Appeal.

[12]

At
    the hearing on June 14, the applicant was assisted by Mr. Ian McCuaig, who was
    counsel at trial and on appeal for the applicants co-accused. In response to
    my inquiry for a more focused statement of the questions of law alone on which
    the applicant seeks leave, Mr. McCuaig sent the court an email identifying
    three issues that the applicant considers his strongest grounds of appeal. They
    are:


i.

A new issue arising from the conduct of the summary conviction appeal:
    specifically, that the mode of hearing for the appeal was changed from
    in-person to Zoom videoconference over the applicants objections, resulting in
    an unfair process for the appeal hearing;


ii.

The Appeal Judge erred in treating the direct evidence of the
actus reus
 the 22 editions of Your Ward News  as
    direct evidence for proving the
mens rea
of
    the offences. In the applicants view, the newspapers were only circumstantial
    evidence of
mens rea
and the trial judge did
    not satisfy the requirements of
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, when
    he inferred the applicants intent from the contents of the newspapers he
    edited and wrote; and


iii.

The Appeal Judge failed to address the applicants sentence ground of appeal
    that
Criminal Code
s.
718.2(a)(i)
     treating evidence that the offence was motivated by hatred based on race or
    sex as an aggravating factor  did not apply to offences under s. 319(2).

[13]

On
    these applications, I will examine those three grounds of appeal, as well as whether
    the Appeal Judge erred by letting the applicants consecutive sentences stand. Although
the applicant raised a number of other complaints with the
    trial decision during oral argument, these four grounds of appeal were the only
    ones advanced with particularity

in the Notice
    of Appeal and Notice of Application for Release Pending Appeal and Leave to
    Appeal.

IV.

FIRST GROUND: HEARING THE SUMMARY CONVICTION APPEAL BY VIDEOCONFERENCE

The events

[14]

The
    appeal hearing was scheduled to be heard in mid-October 2020. One issue on the
    appeal concerned the applicants allegation of ineffective assistance by trial
    counsel; the trial judge had dismissed an application for a mistrial by reason
    of ineffective assistance. Cross-examination on the affidavits relating to that
    issue would take place at the appeal hearing. The applicant anticipated that
    the hearing would be in-person as that was the default mode of hearing for
    self-represented persons at that point of time in the Toronto Region.

[15]

A
    case management conference was held before Akhtar J. on October 9, 2020, who
    advised that because of increasing COVID-19 infection rates in Toronto the
    appeal would be heard by Zoom videoconference. The applicant objected, arguing
    that he was entitled to see the eyes of the person that is judging me. A discussion
    ensued about whether the applicant had to comply with the general rule to wear
    a mask when entering the courthouse and the ability of supporters of the
    applicant to watch the appeal. At the end of the discussion Akhtar J. ruled:

[L]isten, I apologize for the
    miscommunication. There's clearly been miscommunication [
indiscernible
]
    with the court what, what happened. The means of infection is a game changer.
    They are surging. But I understand that there'd be over a hundred people,
    potentially, coming into the court and they would not be allowed in the
    courtroom. And who knows what they're going to be doing, whether they're going
    to be wearing masks or not, I don't know. Mr. Sears says he won't wear a mask
    because he's exempt. He won't be allowed into the courthouse, I can assure you
    of that, because that's the rule. Mr. Sears, I've done my best to accommodate
    you, and you know that, in every single day here, to try and get this on, on
    the rails and keep it on the rails. But, you have no entitlement to an in-person
    hearing. You don't decide the procedure here. The court does. And based on all
    the circumstances I've heard, including the fact that, as I say, there's going
    to be a large crowd coming, there's going  you're not going to be wearing a
    mask, and the fact that these figures today on the COVID I'm hearing, they are
    going to the Zooms and it is to be a Zoom hearing, and it will be a Zoom
    hearing.

[16]

A
    Zoom hearing of the appeal commenced before the Appeal Judge on October 13,
    2020. The applicant again raised his objection to the appeal proceeding by way
    of Zoom. He also submitted, by way of a key takeaway, that he required
    additional time to prepare properly for a Zoom hearing: he had planned to use
    large display boards at the in-person hearing but now would have to prepare a
    PowerPoint slide presentation. The Appeal Judge granted the applicants request
    for a short adjournment until November 10, 2020.

[17]

On
    November 5, a few days before the scheduled start of the hearing, the Appeal
    Judge heard a motion by the applicant to adjourn the appeal until it could be
    conducted in-person. The applicant argued that the order to proceed by Zoom
    conflicted with information on the courts website stating that
    self-represented persons must appear in person and violated his rights under
    the
Canadian Charter of Rights and Freedoms
.

[18]

The
    Appeal Judge dismissed the motion, ruling in part:

This was raised again before me on October 13,
    2020 when the applicant appeared by audio conference only, and I granted the
    requested adjournment on that occasion on the basis that it would not be fair
    for Mr. Sears to participate in the appeal by audio conference only. And at
    that time Mr. Sears agreed to secure an Internet link in order to proceed by
    Zoom, and new dates were scheduled.

Section 715.23 of the
Criminal Code
provides
    that the court may order an accused to appear by audio conference or video
    conference if the court is of the opinion that it would be appropriate, having
    regard to all the circumstances including the five specified circumstances set
    out in section 715.23.

In this case the order of Justice Akhtar as
    the case management judge is an interlocutory order and I lack jurisdiction to
    hear an appeal from that order.



And so in my view the order of Justice Akhtar
    order is - [indiscernible] the order as stands and I am not allowed to
    interfere with it on this application. If it turns out that there was a problem
    with a reasonable apprehension of bias, as Mr. Sears suggests, or any other
    issue with respect to that interlocutory order, that is properly a matter to be
    addressed through appeal proceedings, if the summary conviction appeal is
    dismissed.

[19]

Although
    the applicant informed the Appeal Judge that he might not appear on the first
    two days of the appeal hearing when the evidence on the ineffective assistance
    of counsel issue was scheduled, in fact he participated throughout the Zoom
    appeal hearing.

Positions of the parties

[20]

In
    his Notice of Application for Release Pending Appeal and Leave to Appeal and
    his Notice of Appeal, the applicant states that the decision of Akhtar J. to
    change the mode of hearing without notice was procedurally unfair because it
    contravened the stated policy of the Court that self-represented appeals would
    be heard in person. The decision prejudiced the applicant as the appeal
    included cross examination as part of an ineffective assistance claim, the
    appeal record was voluminous and the number of issues argued was significant.

[21]

The
    applicant submits that Akhtar J. lost jurisdiction by overruling the stated
    policy of the Court, which was the September 28, 2020 iteration of the
    Superior Court of Justice, Toronto Region, Notice to Profession: Toronto
    Expansion Protocol for Court Hearings During COVID-19 Pandemic. Section A.4
    dealt with matters that will continue to be heard remotely. Subsection (viii)
    concerned Summary Conviction Appeals. In the section dealing with hearings,
    para. 4 stated:

All out of custody appellants required to attend the hearings
    in person are no longer required to do so, unless self-represented. Hearings
    for self-represented appellants/applicants shall be conducted in person, unless
    in custody, in which case they will be conducted remotely.

[22]

In
    his Enhanced Book of Authorities and Unfiltered Oral Argument Notes for Summary
    Conviction Appeal (Unfiltered Argument), which the applicant filed at the
    appeal hearing and on these applications, he describes his objection to a Zoom
    appeal hearing in the following terms:

I am being denied my constitutional right to
    an in-person hearing, and instead, under threat of imprisonment, I have been
    ordered to stare into a video screen at a cluster of pixels being transmitted
    from the Ministry of Truth. I am told that the image formed on the screen
    represents the Arbitrator of Truth who I must refer to as His Honour and who
    may be a real human or an A.I. virtual image.



And the reason I am
    forbidden to meet my arbitrator in person is that the Ministry of Truth is an
    arm of a fascist government which conveniently claims that an invisible virus
    could strike dead the Ministry of Truths aged prosecutor. And my suggestion
    that he alone appear by ZOOM is rejected without a reason.

[23]

The Crown submits that this ground of appeal does not involve a
    question of law alone. Sections 683(2.1) and 822(1) of the
Criminal Code
provide a summary conviction appeal judge with the statutory power to order an
    appeal hearing to proceed by videoconference. Akhtar J.s exercise of that
    statutory power does not give rise to a question of law alone. In any event,
    the applicants particular complaints about the mode of hearing do not have
    significance to the administration of justice beyond the four corners of the
    case.

Analysis

[24]

I
    do not understand the applicant to be taking the position that Akhtar J. lacked
    the power to direct a videoconference appeal hearing. That is understandable
    given that s. 683(2.1) of the
Criminal Code
, which applies to summary
    conviction appeals by reason of s. 822(1), states: In proceedings under this
    section, the court of appeal may order that a party appear by audioconference
    or videoconference, if the technological means is satisfactory to the court.
[2]

[25]

Instead,
    I understand the applicant to be arguing that Akhtar J. improperly exercised
    his power to order a videoconference hearing because the Notice to Profession
    then in force contemplated in-person hearings for summary conviction appeals
    where the appellant was self-represented.

[26]

I
    am not persuaded that a challenge to a procedural decision made within the
    jurisdiction of a summary conviction appeal judge raises a question of law
    alone within the meaning of s. 839(1) of the
Criminal Code
:
R. v. Bresnark
, 2013
    ONCA 110, at para. 7.

[27]

Even
    if the ruling could be characterized as a breach of procedural fairness giving
    rise to a question of law alone, the merits of this ground are very weak for
    two reasons. First, as disclosed in his reasons, Akhtar J. exercised his
    discretion to direct a Zoom hearing at a time of increasing public health
    concerns with the start of the COVID-19 second wave in Ontario, which
    resulted in the cancellation of most in-person attendances. Second, the
    prejudice the applicant sought to avoid  namely, impediments to adducing
viva
    voce
evidence and cross-examining on the issue of ineffective assistance
    of counsel   evidently did not materialize for he has not sought leave to
    appeal the Appeal Judges dismissal of his ineffective assistance of counsel
    claim.

[28]

Nor
    does this ground of appeal involve a matter of significance to the general
    administration of criminal justice: it concerns the exercise of judicial
    discretion on a specific set of facts at a point of time when there were unique
    public health concerns.

[29]

Accordingly,
    treating this ground of appeal as a new issue arising from the appeal hearing,
    I do not see it satisfying even a relaxed application of the
R.R.
principles regarding s. 839(1) leaves to appeal.


V.

SECOND GROUND:  CHALLENGING THE FINDINGS ON THE ELEMENTS OF THE OFFENCES

[30]

The
    22 issues of Your Ward News were marked as Exhibit 2 at trial. The trial judge
    wrote:

After considering the entirety of Exhibit 2, a consistent and
    obvious theme that radiated from this publication was hatred. It was at times
    contradictory in that love was professed to Jews and some women. It was at
    times satirical in that humour and exaggeration were employed to make the point.
    But hatred of Jews and women was overwhelmingly the message.

[31]

The
    trial judge went on to find that: (i) both men intended to publish hate. No
    other intent can be inferred from a complete reading of this newspaper; (ii) there
    exists significant evidence of the promotion of that hatred which undeniably
    illustrates their intent to pass on to others the message of hate towards Jews
    and women; and (iii) both men were fully aware of the unrelenting promotion
    of hate in YWN and intended that hatred to be delivered to others.

[32]

The
    applicant appealed those findings, advancing his objections under several
    discrete grounds of appeal, contending that the trial judge: provided
    insufficient reasons; failed to read the publications as a whole and failed to
    consider the published words in their context; wrongly treated the 22 issues of
    Your Ward News as direct evidence from which he could infer intent; failed to
    consider alternate, non-criminal meanings for the published words; and
    misapprehended the evidence thereby rendering the verdict unreasonable. The
    Appeal Judge rejected the applicants objections.

[33]

On
    these applications, the applicant repeats his challenge to the trial judges
    findings, organizing his complaints under two grounds of appeal contained in
    his Notice of Appeal and Notice of Application for Release Pending Appeal and
    Leave to Appeal: (i) the Appeal Judge improperly applied the test for promotion
    of hatred and erred in concluding that statements made by the applicant
    constituted promotion of hatred; and (ii) the Appeal Judge improperly applied
    the law relating to circumstantial evidence with respect to the issue of
    wilfulness.

[34]

In
    comprehensive reasons, the Appeal Judge dealt with each submission. His reasons
    disclose that he:


i.

correctly identified the applicable scope of appellate review: Appeal
    Reasons, at paras. 15-19; 23; 39-42; 49-50; 55; 57; 61; and 67;


ii.

correctly identified the governing legal principles set out in
R. v. Keegstra
, [1990] 3 S.C.R. 697, and found that the
    trial judge had given himself the direction recommended in that case: Appeal
    Reasons, at paras. 31-33;


iii.

accurately summarized the facts and principles in
Villaroman
, seeing no error in the trial judges finding that the
    contents of the 22 issues of Your Ward News constituted direct evidence of the
    statements made by the applicant from which the intention of the applicant
    could be inferred: Appeal Reasons, at paras. 34-37;


iv.

on the latter point, properly referred to and applied the observation in
Keegstra
, at p. 778, that [t]o determine if
    the promotion of hatred was intended, the trier will usually make an inference
    as to the necessary
mens rea
based
    upon the statements made: Appeal Reasons, at para. 65;


v.

Accurately read the trial judges reasons as stating that he had read
    the entirety of all 22 issues of Your Ward News, had assessed the statements
    made in context, and understood the distinction between hate speech and merely
    offensive or distasteful statements: Appeal Reasons, at paras. 33, 46, 58-61;
    and


vi.

As part of the process of appellate review, reviewed the evidence of the
    issues of Your Ward News marked as Exhibit 2 at trial: Appeal Reasons, at
    paras. 56-61.

[35]

That
    process of appellate review led the Appeal Judge to conclude, at paras. 58 and
    61:

In his reasons, the trial judge found that [w]hen all 22
    issues are examined, one is left with unfocused and absurd opinions,
    contradictory messages, and scattershot ramblings. Except for its stated claims
    of being the worlds largest anti-Marxist publication, YWN exhibits no unifying
    concept. This finding is reasonably supported by the evidence.



Based on my review of the published issues of YWN marked at
    trial as Exhibit 2, I am satisfied that there was ample evidence upon which the
    trial judge could reasonably make these findings and reach these conclusions.
    Statements described by the trial judge in paragraphs 11 and 12 of his reasons
    as communicating hatred, within the meaning of that term in
Keegstra
, against women and Jews are found in the issues
    of YWN received in evidence. The trial judges reasons show why he decided as
    he did, and they show a logical connection between why he decided as he did and
    the evidence that was the basis for his decision. The 22 issues of YWN received
    in evidence provide the basis for public accountability of the trial judges
    reasons. The trial judges reasons, read in the context of the evidence at
    trial and the submissions made by counsel, do not foreclose appellate review.

[36]

The
    applicant has not identified any error of law that tainted the Appeal Judges
    analysis. As I understand his submissions, the applicant simply repeats his
    disagreements with how the trial judge applied the law to the specific facts of
    his case and complains that the Appeal Judge did not apply the law to the facts
    in a different way. This ground of appeal is fact-focused and does not engage a
    question of law alone.

VI.

THIRD GROUND: APPLICATION OF S. 718.2(
a)(i
)
    TO OFFENCES UNDER S. 319(2)

[37]

In
    his reasons for sentence, the trial judge identified, as an aggravating factor,
    that
Criminal Code
s. 718.2(a)(i) provides that where offences are
    motivated by hate, the sentences ought to be increased. That section deems to
    be an aggravating circumstance evidence that the offence was motivated by
    bias, prejudice or hate based on race, national or ethnic origin, language,
    colour, religion, sex, age, mental or physical disability, sexual orientation,
    or gender identity or expression, or on any other similar factor.

[38]

In
    his factum on appeal, the applicant enumerated 10 errors committed by the trial
    judge in his sentence, including misapplying Section 718.2(a)(i), as
    Parliament never meant it to redundify Section 319. In his Unfiltered
    Argument, the applicant contended that since some speakers during the
    Parliamentary debate over the enactment of s. 718.2 gave examples of hate
    motivated crimes causing physical harm to people and the then Minister of
    Justice, Allan Rock, stated the proposed amendment had nothing to do with
    policing or punishing the way people think or the views they hold, it follows
    that s. 718.2(a)(i) applies only to violent crime against an individual. Since
    the applicant did not commit such a crime, he contends that the trial judge
    erred by relying on s. 718.2(a)(i) as part of his determination of sentence.

[39]

In
    oral submissions, the applicant complained that the Appeal Judge failed to deal
    with his ground of appeal involving s. 718.2(a)(i). He contends that s. 718.2(a)(i)
    applies only to cases other than hate speech under
Criminal Code
s. 319.

[40]

No
    doubt the proper interpretation of a provision of the
Criminal Code
involves a question of law. So, too, the proper interpretation of a provision
    of the
Criminal Code
is an issue of significance to the administration
    of criminal justice beyond the particular case. Yet, the applicant offers no
    arguable grounds for his position outlined above. On its face, s. 718.2(a)(i)
    applies to all offences in the
Criminal Code
; it identifies no
    exception. The applicant advances no plausible argument based on the principles
    of statutory interpretation that would create an exception where none exists.

[41]

However,
    I have considered the applicants submission from a different angle. Perhaps
    the applicant is attempting to argue that by taking into account the statutory
    aggravating factors in s. 718.2(a)(i) the trial judge, in effect, impermissibly
    considered elements of the offence under s. 319(2) as aggravating factors. Characterizing
    an element of the offence as an aggravating factor is a reviewable error:
R.
    v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 42;
R. v. Adan
,
    2019 ONCA 709, at para. 106. Nevertheless, numerous cases have found no such error
    where a sentencing judge has taken into account statutory aggravating factors
    that are themselves elements of the offence:
R. v. Tejeda-Rosario
, 2010 ONCA 367, 262 O.A.C. 228, at paras. 12-13;
R. v.
    B.S.
, 2019 ONCA 72, at para. 12;
R. v.
    S.C.W.
, 2019 BCCA 405, at paras. 27-36;
R. v.
    JAS.
, 2019 ABCA 376, at paras. 18-19. In any event, even
    where a sentencing judge errs, appellate intervention requires demonstrating
    that the error had an impact on the sentence. In the present case,
the
    Appeal Judge considered whether the trial judge had erred by imposing a
    demonstrably unfit sentence. He concluded, at para. 136, that the applicant had
    not shown that the trial judge imposed a demonstrably unfit sentence. The
    applicant has not identified any arguable error of law in the Appeal Judges
    review of this aspect of the sentence.

[42]

Consequently,
    this ground of appeal does not satisfy the principles in
R.R.

VII.

FOURTH GROUND: IMPOSITION OF CONSECUTIVE SENTENCES

[43]

The
    trial judge sentenced the applicant to the maximum sentence of six months on
    each of the two counts, to be served consecutively. In determining that the
    sentences should be consecutive, the trial judge applied the decision of this
    court in
R. v. Gummer
(1983), 1 O.A.C. 141, [1983] O.J. No. 181 (C.A).

[44]

Gummer
involved convictions for dangerous driving and failing to stop. In setting
    aside the imposition of concurrent sentences and making them consecutive, this
    court stated at para. 13:

We do not consider the rule that sentences for offences arising
    out of the same transaction or incident should normally be concurrent
    necessarily applies where the offences constitute invasions of different
    legally-protected interests, although the principle of totality must be kept in
    mind. The offences of dangerous driving and failing to remain protect
    different social interests. The offence of dangerous driving is to protect the
    public from driving of the proscribed kind. The offence of failing to remain
    under s. 233(2) of the Code imposes a duty on the person having the care of a
    motor vehicle which has been involved in an accident, whether or not fault is
    attributable to him in respect of the accident, to remain and discharge the
    duties imposed upon him in such circumstances.

[45]

The
    trial judge stated, at para. 12:

In this case, identifiable groups, those being women and Jews,
    have separate, legally-protected interests. The defendant could promote hatred
    against one and not the other, or vice versa. He promoted hatred against both.
    In addition, the hate was promoted against both groups not from one incident,
    but many, and consistently over a period of three years.

[46]

On
    his appeal from sentence, the applicant submitted that the trial judge
    committed an error in principle by deciding that the sentence for each count
    should be served consecutively rather than concurrently. The Appeal Judge did
    not accept that submission. The Appeal Judge properly recited the deference
    owed to a sentencing decision absent an error in principle or demonstrably
    unfit sentence. In the case before him, the Appeal Judge concluded that the
    trial judge did not err in principle by ordering that the sentence on each
    count be served consecutively, stating at paras. 129-130:

Counsel for Mr. St. Germaine submits that the only relevant
    interest for a sentencing judge to consider is societys interest, and that the
    trial judge erred by identifying two separate interests. I disagree with this
    submission. Society has an interest in discouraging hate crimes against
    different groups and, just as in
Gummer
, the
    trial judge concluded in respect of the charges against the appellants, that
    there were two separate societal interests, discouraging hatred against women
    and discouraging hatred against Jews.

The Crown proceeded with a two-count information against each
    appellant and it acted within its discretion to do so. The trial judge had
    reviewed the collection of the 22 issues of YWN that were introduced into
    evidence, and he was well situated to decide whether the communications against
    women and against Jews in those issues should properly be treated as part of
    the same conduct against two groups who do not not enjoy separate protected
    interests, such that concurrent sentences would be proper. The trial judge,
    having reviewed the 22 issues, concluded that the communications promoting
    hatred were directed against separate identifiable groups, women and Jews, and
    each has a separate legally protected interest.

[47]

On
    this application, the applicant submits that the Appeal Judge erred in law in
    allowing the order for consecutive sentences to stand.

[48]

I
    am not persuaded that this ground of appeal amounts to a question of law
    alone. The Appeal Judge properly identified the principles governing his
    appellate review of the trial judges sentence. The applicant does not identify
    any conflict within the jurisprudence relevant to the circumstances of his
    sentence. Finally, as pointed out in Clayton C. Ruby,
Sentencing,
10th ed.
(Toronto: LexisNexis, 2020), at
    §14.18, it becomes a
fact-specific inquiry
of
    whether the nexus between offences is sufficiently or insufficiently close to
    merit either consecutive or concurrent sentences. [Emphasis added.]

VIII.

DISPOSITION

[49]

For
    the reasons set out above, I am not satisfied that the applicants proposed
    appeal meets the requirements of
Criminal Code
s. 839(1), as
    interpreted by
R.R
. Accordingly, the application for leave to appeal
    is dismissed. It follows that the application for bail pending appeal is
    also dismissed.

David
    Brown J.A.





[1]

Section
    839(1) of the
Criminal Code
states, in part:
    Subject to subsection (1.1), an appeal to the court of appeal as defined in
    section 673 may, with leave of that court
or a judge thereof
, be taken on any ground that
    involves a question of law alone  [Emphasis added.]



[2]

The decision of this court in
Woods (Re),
2021
    ONCA 190, 154 O.R. (3d) 481, to which the applicant directed my attention, has
    no application to the present case.
Woods
involved proceedings under
    Part XX.1 of the
Criminal Code
. This court held, at para. 33, that Part
    XX.1 of the
Criminal Code
did not provide the Ontario Review Board with
    the authority to conduct its hearing by videoconference without the consent of
    the NCR accused. Part XX.1 has no application to the present case, which
    concerns the powers of judges on summary conviction appeals.


