



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bresnark, 2013 ONCA 320

DATE: 20130514

DOCKET: C53032

Weiler, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Bresnark

Appellant

Steven Bresnark, acting in person

Michael Medeiros, for the respondent

Heard: May 10, 2013

On appeal from the decision of the Summary Conviction
    Appeal Court dated November 12, 2010 by Justice Edward Belobaba of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on July 15,
    2008 by Justice Kofi N. Barnes of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant uttered the following words in respect of a Crown Attorney
    who had once prosecuted him:

She is Draconian and she is a bitch and she should get her
    throat slashed.

[2]

The words were addressed to a fellow employee of the Crown Attorney at
    the Department of Justice some four months after the appellant had been
    convicted of the offence which the Crown Attorney had prosecuted. The appellant
    made a slashing motion with his hand across his own throat as he uttered the
    words.

[3]

Following a one day trial, the trial judge found the appellant guilty of
    knowingly uttering a threat to cause death.

[4]

The appellant brought a summary conviction appeal, which was dismissed.
    Before the summary conviction appeal court judge, the appellant argued numerous
    grounds of appeal, including that the trial judge failed to property apply the
    test set out in
R. v. Clemete,
[1994] 2 S.C.R. 758, which sets out the
    manner in which a court should approach a charge of threatening, that the Crown
    failed to prove its case beyond a reasonable doubt, and that the threat was not
    conveyed to the Crown Attorney.  The summary conviction appeal court judge
    carefully considered each of the grounds of appeal advanced by the appellant
    and explained why they could not succeed. In the case of the argument that the
    threat was not conveyed, the summary conviction appeal judge explained that
Clemente
held that the intended victim need not be aware of the threat.

[5]

The appellant now seeks leave to appeal to this court pursuant to s. 839
    of the
Criminal Code
. If granted leave, he would again argue that, if
Clemente
were correctly applied, the words he uttered would not be found to amount to a
    threat. He would also argue that his conviction was unreasonable and the summary
    conviction appeal court judge provided insufficient reasons. We note that the
    numerous grounds argued before the summary conviction appeal court judge did
    not include that his conviction was unreasonable.

[6]

Leave to appeal to this court from a summary conviction appeal pursuant
    to s. 839 is granted sparingly, and only when some exceptional circumstance
    justifies a further appeal.

[7]

The alleged error must be a question of law. Moreover, either (1) the
    merits of the appeal must be at least arguable and the issue must have general
    significance to the administration of justice beyond the particular case, or
    (2) the merits of the appeal must appear very strong: see
R. v. R.R.
(2008), 234 C.C.C. (3d) 463 (Ont. C.A.), at paras. 31 and 37.

[8]

We are not satisfied that the requirements for leave to appeal have been
    met.  To the extent the grounds the appellant seeks to raise are questions of
    law, they are not of general significance to the administration of justice
    beyond this particular case.
Clemente
is long- settled law. Nor do the
    merits of the appeal appear very strong. Indeed, in our view, there is no merit
    to this appeal.

[9]

The appellants primary contention is that the words uttered did not
    convey a threat. The trial judge concluded that, in all of the circumstances, they
    did.  The summary conviction appeal court judge in turn concluded that the
    trial judge correctly assessed the words used, the context in which they were
    spoken and the person to whom they were directed in finding that the appellants
    words amounted to a threat, and that the trial judges finding did not
    constitute a reviewable error. We agree. The correct legal test was applied.
    The determination that a threat was made was essentially a factual
    determination, and on the evidence was fully open to the trier of fact to make.

[10]

Leave
    to appeal is accordingly denied.

K.M.
    Weiler J.A.

E.E. Gillese J.A.

Alexandra Hoy J.A.


