



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Swaby,









2018 BCCA 35




Date: 20180125

Docket: CA44930

Between:

Regina

Applicant

Appellant

And

Matthew
Christopher Swaby

Respondent

Section
16(4)
Sex Offender Information and Registration Act (SOIRA)
:
This section provides that no person shall disclose any information that is
collected pursuant to an order under
SOIRA
or the fact that information
relating to a person is collected under
SOIRA.




Before:



The Honourable Mr. Justice Hunter

(In Chambers)




On appeal from: an
order of the Supreme Court of British Columbia, dated
November 8, 2017 (
R. v. Swaby
, 2017 BCSC 2020, Vancouver Registry No.
27223)

Oral Reasons for Judgment




Counsel for the Applicant:



L.A. Vizsolyi





Counsel for the Respondent:



L.J. Helps





Place and Date of Hearing:



Vancouver, British
  Columbia

January 23, 2018





Place and Date of Judgment:



Vancouver, British
  Columbia

January 28, 2018








Summary:

The Crown applies for leave
to appeal the decision of a summary conviction appeal court that upheld a
Provincial Court of British Columbia judges decision that the mandatory
minimum sentence of 90 days imprisonment then prescribed by s. 163.1(4)(b) of
the Criminal Code infringes s. 12 of the Charter of Rights and Freedoms. The
respondent opposed leave on the basis that the question does not raise an issue
of law alone and that the appeal lacks merit. Held: Application granted. The
constitutional question is a question of law and the matter is one of
considerable significance beyond the immediate case.

[1]

HUNTER J.A.
: The Crown seeks leave to appeal a judgment of a
judge of the Supreme Court of British Columbia, sitting as an appeal judge on a
summary conviction sentence appeal. The sole issue in the appeal is whether the
mandatory minimum sentence provided by s. 163.1(4) of the
Criminal Code
,
R.S.C. 1985, c. C-46, which was in force at the time of the offence, infringes
s. 12 of the
Charter of Rights and Freedoms
.

[2]

Mr. Swaby was charged with and pleaded guilty to a single count of
possession of child pornography contrary to s. 163.1(4) of the
Criminal Code
.
The Crown proceeded by way of summary conviction. At the relevant time, the
minimum sentence for such an offence was imprisonment for 90 days.

[3]

Mr. Swaby sought a declaration before the sentencing judge that s.
163.1(4) prescribed a minimum sentence which is grossly disproportionate to the
offence alleged and thereby amounted to cruel and unusual punishment, contrary
to s. 12 of the
Charter
. The sentencing judge agreed and held that s.
163.1(4) was unconstitutional.

[4]

The Crown appealed this decision to the Supreme Court of British
Columbia, but the appeal was dismissed and the constitutional remedy confirmed.
The Crown seeks leave to appeal this decision to this Court.

Test for leave

[5]

This leave application is brought pursuant to s. 839(1) of the
Criminal
Code
, which restricts appeals to this Court from summary conviction
sentence appeals to grounds that involve a question of law alone for which
leave to appeal has been granted by this Court or a judge of this Court.

[6]

The test for granting leave to appeal under s. 839 was summarized by
Justice Frankel in
R. v. Winfield
, 2009 YKCA 9 as follows:

[13]

T
o obtain leave to
appeal from the decision of a summary conviction appeal court, the applicant
must establish that (a) the ground of appeal involves a question of law alone,
(b) the issue is one of importance, and (c) there is sufficient merit in the
proposed appeal that it has a reasonable possibility of success. The overriding
consideration in the exercise of the discretion to grant or refuse leave is the
interests of justice:
R. v. Cai
, 2008 BCCA 332
,
258 B.C.A.C. 235
at para. 26 (Chambers)
;
R. v. Gill
,
2008 BCCA 259
at para. 3 (Chambers)
.

[14]      In
R.(R.)
, Mr. Justice Doherty
discussed the approach to be taken in deciding whether to grant leave to appeal
the decision of a summary conviction appeal court. In this connection, he
stated:

[27]      The
requirement that the applicant obtain leave to appeal in s. 839 provides
the mechanism whereby this court can control its summary conviction appeal
docket. Access to this court for a second appeal should be limited to those
cases in which the applicant can demonstrate some exceptional circumstance
justifying a further appeal.

...

[37]      In summary, leave to appeal pursuant
to s. 839 should be granted sparingly. There is no single litmus test that can
identify all cases in which leave should be granted. There are, however, two
key variables  the significance of the legal issues raised to the general
administration of criminal justice, and the merits of the proposed grounds of
appeal. On the one hand, if the issues have significance to the administration
of justice beyond the particular case, then leave to appeal may be granted even
if the merits are not particularly strong, though the grounds must at least be
arguable. On the other hand, where the merits appear very strong, leave to
appeal may be granted even if the issues have no general importance, especially
if the convictions in issue are serious and the applicant is facing a
significant deprivation of his or her liberty.

[7]

In
R. v. Klos
, 2015 BCCA 360 (in Chambers),
Justice Frankel summarized the considerations for a leave judge in this way:

[33]       The overriding consideration in
determining whether to grant or refuse leave is the interests of justice:
R. v. Alpha Manufacturing Inc.
, 2009 BCCA 443 at para. 13, 277 B.C.A.C.
17. That leave will be granted sparingly is evinced by the following from
R.
v. Bresnark
, 2013 ONCA 110:

[5]        A second appeal in summary
conviction proceedings is the exception, not the rule.
R. v. R.(R.)
,
2008 ONCA 497, 90 O.R. (3d) 641. First, the matter in issue must raise a
question of law alone. Even if the proposed appeal involves a question of law
alone, there are only two types of cases in which leave to appeal may be
granted. One is when the matter raised has significance to the administration
of justice beyond the particular case and the grounds of appeal are at least
arguable. The other is where the merits appear to be very strong  particularly
if the conviction is serious and the appellant is facing a significant
deprivation of his or her liberty.

Do the grounds involve a question of law alone?

[8]

The first requirement is that the ground of appeal
involves a question of law alone. The question for appeal proposed by the Crown
is as follows:

Does the mandatory
minimum sentence of 90 days jail as provided by s. 163.1(4)(b) of the
Criminal
Code
infringe s. 12 of the
Charter of Rights and Freedoms
?

[9]

In my view, the question whether a mandatory
minimum sentence required by the
Criminal Code
offends s. 12 of the
Charter
is a question of law.

[10]

Mr. Swaby has argued that in this case, the conclusions of the
sentencing judge were inextricably bound to the factual context before the
Court. The fact that the sentencing judge made certain factual findings in
order to reach a decision on this point does not detract from the nature of the
issue. The New Brunswick Court of Appeal considered a similar argument in
R.
v. Dunnett
(1990),
62 CCC (3d) 14 at 18-19 (N.B.C.A.)
and made the following comments in relation to a leave application under s. 839
of the
Criminal Code
:

The legal rights
protected by the
Charter

must always be considered in a factual context. They cannot arise in
the abstract. The facts must be found by the trial Judge. Once the facts have
been established by the trial Judge, an appellate court must consider the
application of the
Charter

to those facts. The application of the facts as found by the trial
Judge to the legal rights protected by the
Charter

involves, in my opinion, questions of law. As
such, subject to leave being given, these questions are reviewable by this
Court.

[11]

I conclude that I have the jurisdiction to grant leave to appeal on the
ground advanced by the Crown.

Is the issue one of importance?

[12]

Striking
down a provision of the
Criminal Code
is a matter of considerable
importance. The respondent does not suggest otherwise.

Does the application meet the merits test?

[13]

The
traditional merits test requires the leave judge to determine whether
there is sufficient merit in the proposed appeal that it has a
reasonable possibility of success. The respondent argues strongly that the
summary conviction appeal judge considered the appropriate tests and that there
is no merit to the proposed appeal.

[14]

I agree with the respondent that the judgment of the
summary
conviction
appeal judge is thoughtful and well reasoned. However, in my
view this application engages the principle set out by Justice Doherty in
R.
v. R.(R.)
, 2008 ONCA 497 adopted by Frankel J.A. in the passage from
Winfield
to which I have referred:

if the issues
have significance to the administration of justice beyond the particular case,
then leave to appeal may be granted even if the merits are not particularly
strong, though the grounds must at least be arguable.

[15]

In
relying on this passage, I do not mean to suggest that the merits of this
appeal are not particularly strong. I take this as an indication that if the
issues are of significance to the administration of justice beyond the specific
case at bar, then as long as the issue is arguable it is not necessary to
assess the merits of the appeal as closely as would be necessary if the legal
issue was not likely to affect other parties not before the Court.

[16]

Here,
the question whether a provision of the
Criminal Code
should be struck
down as contrary to the
Charter
is a matter of considerable significance
beyond the immediate case. If leave is denied, the decision of the
summary conviction
appeal judge will be binding in the
Provincial Court and in the Supreme Court of British Columbia. While the
section under consideration in this appeal has been amended to increase the
mandatory minimum sentence, if the judgment sought to be appealed is correct,
it will of necessity apply to the current provision in the
Criminal Code
.
It may as well have application to other analogous offences with mandatory
minimum sentences. I agree with the Crown that given the importance of the
issue and the impact beyond the immediate parties, it should be a division of
this Court that decides whether the mandatory minimum sentence in s.
163.1(4)(b) contravenes s. 12 of the
Charter
.

[17]

I
am satisfied that it is at least arguable that a jail sentence of 90 days is
not a grossly disproportionate penalty for the serious offence of possession of
child pornography. As I am granting leave and the appeal will be heard by a
division of this Court, I do not propose to say anything further about the
merits of the appeal.

[18]

Accordingly,
leave to appeal is granted on the following ground:

Does the mandatory minimum sentence of 90
days jail as provided by s. 163.1(4)(b) of the
Criminal Code
infringe
s. 12 of the
Charter of Rights and Freedoms
?

The
Honourable Mr. Justice Hunter


