



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McLean, 2016 ONCA 38

DATE: 20160115

DOCKET: C59407

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mitchell McLean

Appellant

Giuseppe Cipriano, for the appellant

John McInnes, for the respondent

Heard: January 13, 2016

On appeal from the decision of the Summary Conviction
    Appeal Court dated August 27, 2014 by Justice Martin S. James of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on October
    1, 2013 by Justice Grant Radley-Walters of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted under s. 249.1(1) of the
Criminal Code
, R.S.C. 1985, c. C-46,
for failing to
    stop a vehicle while being pursued by police. His summary conviction appeal was
    dismissed and he now seeks leave to appeal to this Court on two questions of
    law: Did the summary conviction appeal judge err in holding that:

1. the offence of failure to stop while being pursued by police
    can be widened to include any momentary movement from police; and

2. evidence of flight on foot constitutes vehicular flight.

[2]

With respect to the first proposed question of law, there is an obstacle
    in that it assumes facts that are contrary to the findings of the trial judge,
    findings which were upheld at the summary conviction appeal and are not
    challenged here. The appellant did not call any evidence at trial and the Crowns
    evidence was uncontroverted.

[3]

The appellant misstates the record to the extent that he characterizes
    the vehicular stop as a momentary delay in compliance, rather than the
    conclusion of a course of deliberate evasion of a police pursuit.

[4]

With respect to the second proposed question of law, neither the trial
    judge nor the summary conviction appeal judge found the appellants subsequent
    flight on foot to have been an element of the offence. Rather, as the summary
    conviction appeal judge held, the attempt to flee on foot is probative of the
mens
    rea
element required to prove the offence for which the appellant was
    convicted. That is, the further flight into a remote ravine in the early
    morning, while being pursued by police shouting stop, police, is some
    evidence that moments before, when he manoeuvered his vehicle away from the
    police, it was with the intention to evade the police.

[5]

The proposed question is thus not arguable.

[6]

Additionally, as the summary conviction appeal judge noted, the elements
    of s. 249.1 are well settled in
R. v. Kulchisky
,
2007 ABCA 110, [2007] A.J. No. 323, at
    para. 4, and the proposed appeal has no general significance to the
    administration of justice beyond the facts of this case: see
R. v R. R.
,
    2008 ONCA 497, 90 O.R. (3d) 641, at para 32.

[7]

Leave to appeal is refused.

J.C. MacPherson J.A.

David Watt J.A.

B.W. Miller J.A.


