



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Velegjanin, 2020 ONCA 419

DATE: 20200629

DOCKET: M51313 (C60034)

Tulloch, Roberts and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Responding Party

and

Nikolai Velegjanin

Moving Party

Megan M. Schwartzentruber and Ben
    ElzingaCheng, for the moving party

Kevin Rawluk, for the responding party

Heard:
    in writing

On appeal
    from the order of Justice Todd Ducharme of the Superior Court of Justice, dated
    February 9, 2015, dismissing an appeal from the conviction entered on September
    12, 2013, by Justice Lauren E. Marshall of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The moving party was charged with a number of
    offences arising out of an incident in his apartment building. While in a state
    of confusion and suffering from a broken jaw, the moving party attempted to
    gain entry to the wrong apartment. The complainant testified that, when he was
    denied entry, the moving party said Im going to kill you in broken English. The
    police later found the moving party in his apartment with a rifle on the floor.

[2]

The trial judge convicted the moving party of threatening
    death or bodily harm, careless use of a firearm, careless storage of a firearm,
    and careless storage of ammunition, contrary to ss. 264.1(1)(a), 86(1), 86(1), and
    86(2) of the
Criminal Code
, R.S.C. 1985, c. C-46. The summary conviction
    appeal judge dismissed the appeal against the conviction for threatening death,
    but allowed it on the careless use and storage convictions, entering acquittals
    for those counts.

[3]

Leave to appeal is sought on both grounds articulated
    in
R. v. R.R.
, 2008 ONCA 497,
90 O.R. (3d)
    641,
namely, that the appeal raises issues of significance to the
    general administration of justice, and that the merits are strong and leave
    should be granted because of the serious consequences of a conviction.
    Specifically, the moving party argues that, while the law governing the offence
    of uttering a threat is well established, the case raises important issues
    regarding the adequacy of reasons for determinations as to an accuseds mental
    state. On the second ground, the moving party argues that the appeal judge: 1) erred
    in finding that he had the requisite
mens rea
for uttering a threat; 2) erred
    in failing to consider whether the reliability of the complainants evidence
    was undermined by his broken English; and 3) provided deficient reasons in that
    he failed to explain how it was decided that the moving party had the requisite
mens rea
.

[4]

We would refuse leave to appeal. The appeal does
    not raise any issues of importance and there is no merit to the appellants
    arguments alleging an error by the summary conviction appeal judge. In our
    view, the appeal judge properly considered the record before him in upholding
    the conviction. He applied the correct legal test and gave clear and concise
    reasons as to how he arrived at his ultimate conclusion. The trial judges determinations
    that a threat was made, and that the moving party intended to make it, were
    open to her on the evidence. These were factual findings and subject to deference.
    There was no basis for the appeal judge to interfere.

[5]

In all the circumstances, the motion for leave
    to appeal is dismissed.

M.
    Tulloch J.A.

L.B.
    Roberts J.A.

Thorburn
    J.A.


