



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lukaniuk, 2013 ONCA 533

DATE: 20130829

DOCKET: M42627 and M42687 (C57251)

MacFarland J.A. (In Chambers)

BETWEEN

DOCKET: M42627 (C57251)

Her Majesty the Queen

Respondent

and

Gerald Lukaniuk

Appellant

AND BETWEEN

DOCKET: M42687 (C57251)

Her Majesty the Queen

Applicant

(Respondent on
    Application for Leave to Appeal

And Motion for Interim
    Relief)

and

Gerald Lukaniuk

Respondent

(Applicant on Application
    for Leave to Appeal

and Motion for Interim
    Relief)

Steve Dallal, for Gerald Lukaniuk

John Patton, for the Attorney General of Ontario

Heard: August 9, 2013

ENDORSEMENT

[1]

There are two motions before the court.  The first is by the appellant
    for bail pending his application for leave to appeal and if leave is granted,
    pending his appeal.  The second is a motion by the Crown to have the leave to
    appeal motion in this summary conviction matter heard now.

[2]

As was noted by MacPherson J.A. in
R. v. Metin
, January 13,
    2013, 2013 ONCA 21 at para. 3:

In Ontario, a practice has arisen in the vast majority of
    summary proceeding matters whereby a panel of this court will hear the
    application for leave to appeal and the appeal itself, together at a single hearing:
    see
R. v. R. (R.)
(2008), 90 O.R. (3d) 641 (C.A.) at para. 2.

[3]

Here, as in
Metin
, the Crown proposes a different route for the
    determination of the appellants application for leave to appeal.  I agree with
    my colleague that a single judge of this court does have jurisdiction under
    section 839(1) of the
Criminal Code
to determine a motion for leave to
    appeal.

[4]

As Doherty J.A. noted in
R. v. R. (R.)
,
supra
:

The leave requirement in s. 839 can perform its proper function
    only if it is addressed separately from the ultimate merits of the appeal.  A
    separate preliminary consideration of the question of leave should also quickly
    eliminate those cases from the system that do not warrant leave to appeal.  In
    my experience, most summary conviction matters brought to this court should
    fail at the leave to appeal stage.

[5]

In
Metin
,
supra
, the court set out the test for
    granting leave to appeal under s. 839(1) of the
Criminal Code
at para.
    15:

The test for granting leave to appeal under s. 839(1) of the
    Criminal Code encompasses three factors: (1) the proposed appeal must involve a
    question of law alone; (2) the proposed question of law must be significant,
    beyond the particular case, to the administration of justice in the province;
    and (3) the proposed appeal should have some apparent merit: see
R. v. R.
    (R.)
, at paras. 29-31.

FACTS

[6]

On November 4, 2008, the appellant was convicted of assault causing
    bodily harm by Sutherland J. of the Ontario Court of Justice.  The charge
    related to an offence committed against his son on June 12, 2007.  On January
    6, 2009, he was sentenced to a four-month conditional sentence, a three year
    probation order on completion of his four-month conditional sentence, an order
    pursuant to s. 110 of the
Criminal Code
that he not have in his
    possession any firearms, explosive substances or other devices for a period of
    five years and a mandatory DNA order.

[7]

The appellant instituted appeal proceedings from his conviction and
    sentence in the Superior Court of Justice in 2009.  His conviction appeal was
    argued November 22, 2012 and reasons dismissing that appeal were released
    November 30, 2012.

[8]

His sentence appeal was argued June 13, 2013 and reasons dismissing that
    appeal were released June 21, 2013.  He now seeks leave to appeal to this court
    on both conviction and sentence.

[9]

It has been over six years since the event that gave rise to this charge
    occurred.  I note that the summary conviction appeal judge added a footnote 3
    at page 7 of her reasons which reads:

It should be noted that the Appellant was given significant
    accommodation during this summary conviction appeal process.  It appears from
    the record that the matter has been before this Court approximately 38 times. 
    It was adjourned to obtain transcripts, to retain counsel, to file a factum,
    for medical reasons, etc.  As I have stated above, despite the fact that the
    appellants appeal was dismissed in November, 2012, I permitted him to argue
    the sentence appeal.  During oral argument, the Appellant used the majority of
    the ninety minutes of court time and was permitted to consult with those in the
    courtroom who were there to support him on two occasions.

[10]

This
    goes someway to explain why this case has taken so long to work its way through
    the system.

[11]

At
    his trial in the Ontario Court of Justice, the appellant was represented by
    counsel.  Following his conviction and before he was sentenced, he discharged counsel
    and represented himself at the sentencing hearing.  At the hearing of his
    conviction appeal before the summary conviction appeal court, he was assisted
    by one Raymond Lee Hathaway who was then preparing for his paralegal
    examination.  It appears he was self-represented on the hearing of his sentence
    appeal before that court.  He is represented by counsel before this court.

[12]

Many
    of the grounds of appeal raised before this court are the same grounds he
    raised before the summary conviction appeal court.  They include:

-

his
    several arguments in relation to the competence of counsel;

-

the
    fact his former wife was disbelieved in other unrelated judicial proceedings
    and accordingly, ought to have been disbelieved at his trial;

-

failure
    of the trial judge to consider and give weight to a contact sheet of photographs
    of the complainant.

[13]

In
    addition to these grounds, he argues:

-

that
    the trial judge erred in not recognizing that the charge of assault was wrong
    in law and the complainant, both at trial and on sentence was attempting to
    invite a physical confrontation and therefore he, the appellant, was not guilty
    of any assault;

-

that
    his trial was time limited to one day;

-

the
    trial judge may have been biased

-

that
    his submissions rather than those of his former counsel should be considered in
    relation to his appeal.

[14]

As
    to his sentence appeal, I would summarize the grounds as follows:

-

the
    trial judge proceeded with his sentencing hearing without having read the
    pre-sentence report  but that a light reading of that report (during the
    sentencing hearing) resulted in his sentence being reduced from nine months
    incarceration to four months of house arrest.  Had the trial judge read it more
    closely, he argues, it may have resulted in a suspended sentence or his
    conviction being overturned;

-

that
    the terms of his conditional sentence frustrated the trial judges intention
    that the sentence not interfere with the appellants work;

-

the
    trial judge was biased against him because he did not have a lawyer.

[15]

None
    of the grounds raised amount to an error in law alone.  At best they concern
    issues of mixed fact and law in areas of law that are well-settled.  Counsel
    did not press the conviction appeal.  He emphasized the sentence appeal and
    candidly stated that he thought it to be the strongest aspect of the proposed
    appeal.

[16]

The
    appellant was given a very full and thorough hearing by the summary conviction
    appeal judge on both his conviction and sentence appeals.  She dealt with each
    of his arguments in turn and gave careful reasons for rejecting them.

[17]

In
    my view, the appellant cannot meet the test for leave to appeal to this court. 
    None of the issues he raises amount to a question of law alone, none have
    significance beyond his own case and in any event are without merit.

[18]

I
    would deny leave to appeal and having done so, his bail application accordingly
    fails.

[19]

His
    counsel argues that I should not consider his application for bail and the
    leave application at the same time.  He says it is unfair to his client to do
    so because the test to be admitted to bail pending an application for leave to
    appeal is less onerous than the test for leave to appeal.  He says he needs
    only to show his appeal is arguable on a bail application and need not meet the
    heavier burden required on an application for leave to appeal to this court.  I
    do not agree.  Under s. 679(3)(a) of the
Criminal Code
, the appellant
    must establish firstly that the appeal or application for leave to appeal is
    not frivolous.  To do so the appellant must establish that his appeal meets the
    requirements of s. 839(1) as interpreted by
R. v. R.(R.)
, supra.  For
    the reasons set out above the appellant, here, fails to meet that test. 
    Accordingly his application for bail cannot succeed.  Admitting someone to bail
    pending an application for leave to appeal that is doomed to fail would be an
    affront to the administration of justice.

[20]

On
    the particular facts of this case, it was appropriate to bring the leave
    application at the same time as the bail application.  It may not always be so,
    but where it can be done, it is the preferable procedure.

[21]

For
    these reasons, the application for bail pending appeal is dismissed and the
    application for leave to appeal to this court is dismissed.

J. MacFarland J.A.


