



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Khanna, 2016 ONCA 39

DATE: 20160115

DOCKET: C59357

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anil Khanna

Applicant/Appellant

Kristin Bailey, for the appellant

John McInnes, for the respondent

Heard: January 13, 2016

On appeal from the decision of Justice Antonio Skarica of
    the Superior Court of Justice, sitting as a summary conviction appeal court on August
    22, 2014, dismissing an appeal from the convictions entered on March 11, 2013
    by Justice Ian B. Cowan of the Ontario Court of Justice.

ENDORSEMENT

[1]

The applicant seeks leave to appeal from a decision of a judge of the
    Superior Court of Justice, sitting as a summary conviction appeal court, which
    affirmed the applicants convictions of assault with a weapon and assault. The
    complainant in each case was the applicants daughter.

[2]

The issues upon which the applicant seeks leave to appeal relate to
    rulings made by the trial judge during cross-examination of the complainant
    when trial counsel for the applicant sought to cross-examine her on certain
    internet postings said to be inconsistent with her evidence. To be more
    specific, the applicant contends that the trial judge erred in law in invoking
    the collateral facts rule to curtail cross-examination of the complainant and
    the summary conviction appeal court erred in law in holding that the trial
    judge was not wrong in doing so.

[3]

The applicant advanced this ground of appeal, among several others,
    before the summary conviction appeal court. The appeal judge rejected this
    ground on the basis that the rulings made revealed no error of law, rather
    constituted a reasonable exercise of the trial judges discretion to curtail
    cross-examination on collateral issues not apt to assist in the resolution of
    the issues in dispute.

[4]

It is well-settled that second appeals in summary conviction proceedings
    are exceptional. Leave to appeal is granted sparingly:
R. v. R.(R.)
, 2008
    ONCA 497, at para. 37. In the absence of a single litmus test that identifies
    all cases in which leave to appeal should be granted, two variables assume
    prominence:


i.

the significance of the legal issues raised to the general
    administration of criminal justice; and


ii.

the merits of the proposed grounds of appeal.
R.(R.)
, at para.
    37.

[5]

In the first category, leave to appeal may be granted where the merits
    of the proposed question of law alone are arguable, even if not strong, but the
    proposed question of law has significance to the administration of criminal
    justice beyond its idiosyncratic factual matrix. In the second category, leave
    to appeal may also be granted where there appears to be a clear legal error,
    even if it cannot be said that the error has significance to the administration
    of criminal justice beyond the four corners of the case in which leave to
    appeal is sought:
R.(R.)
, at para. 32. This is especially so where the
    conviction is serious and the applicant faces a significant deprivation of his
    or her liberty:
R.(R.)
, at para. 37.

[6]

In our view, the proposed ground of appeal does not warrant granting
    leave to appeal upon either basis described in
R.(R.)
.

[7]

We begin with a reminder that a second appeal in summary conviction
    proceedings represents the exception, not the rule.

[8]

Second, mere identification of a question of law alone is not sufficient
    to warrant granting leave to appeal.

[9]

Third, we are not persuaded that the trial judge invoked the collateral
    facts rule to curtail cross-examination. After all, the rule does not regulate
    cross-examination of an opposing witness about prior utterances that contradict
    his or her testimony on a collateral matter. The rule governs the ability of
    the cross-examiner to introduce extrinsic evidence in his or her case to
    contradict answers given by an opposing witness on a collateral issue. As we
    read the record, the impugned ruling reflected the exercise of the
    firmly-rooted judicial discretion to confine cross-examination within
    appropriate limits. Even if the trial judge erred in the exercise of that
    discretion, the error is at best an error of mixed fact and law not cognizable
    on an appeal under s. 839(1) of the
Criminal Code
:
Fanjoy v. The
    Queen
, [1985] 2 S.C.R. 233, at pp. 238-239.

[10]

Fourth,
    even if we could tease out of the ruling an error of law, such a decision does
    not transcend the peculiar factual matrix of this case and have significance to
    the administration of criminal justice beyond its boundaries.

[11]

Finally,
    what occurred here was not preclusive of trial counsels right to cross-examine
    the complainant about her motives to fabricate her allegations.
    Cross-examination on the complainants motives was permitted and pursued,
    curtailed only in relation to internet postings and chats of negligible
    assistance in resolving any contested factual issues at trial.

[12]

For
    these reasons, leave to appeal is refused.

J.C. MacPherson J.A.

David Watt J.A.

B.W. Miller J.A.


