R. v. Burry, 2022 NLCA 11

Devon Burry (appellant) v. Her Majesty the Queen (respondent) (20/29) Indexed As: R. v. Burry 2022 NLCA 11 7 C.A.N.L.R. 311 Court of Appeal of Newfoundland and Labrador Hoegg, O’Brien and Butler JJ.A. February 17, 2022

Summary: Devon Burry was convicted in Provincial Court of two counts of sexual assault contrary to

section 271 of the Criminal Code and one count of providing alcohol to a minor contrary to

section 76 of the Liquor Control Act . Mr. Burry appealed the

summary convictions to the Supreme Court of Newfoundland and Labrador. A judge, sitting as a

Summary Conviction Appeal Court (“SCAC”) judge, dismissed the appeal. Mr. Burry sought leave pursuant to section 839(1) of the Criminal Code to appeal the SCAC judge’s decision. Held: Leave to appeal dismissed. Butler J.A. (O’Brien J.A. concurring): Two of the three grounds of appeal involved a question of law alone, satisfying the first prong of the test. However, neither of the grounds of appeal had a reasonable possibility of success, nor did they have significance to the administration of justice. As such, the test for leave to appeal pursuant to section 839(1) was not met (paragraphs 6-52).

Hoegg J.A. (concurring in the result): None of the grounds of appeal involved a question of law alone. Mr. Burry was simply requesting this Court to review the trial evidence and the trial judge’s ultimate decision, and come to a different conclusion than that reached by the SCAC judge. The error of law required to vest jurisdiction in this Court was an error of law on the part of the SCAC judge, not the trial judge. As such, leave to appeal was denied (paragraphs 79-96). Cases cited: Butler J.A.: R. v. Newfoundland Recycling Limited , 2009 NLCA 28 , 284 Nfld. & P.E.I.R. 153 R. v. Chaluk , 1998 ABCA 253 R. v.

R.R. , 2008 ONCA 497 R. v. Bouchard , 2011 QCCA 30 R. v. Patel , 2017 BCCA 459 R. v. Petrin , 2013 NWTCA 1 _________________________________ Application for leave to appeal filed, 40249 (June 28, 2022) R. v. Pottie , 2013 NSCA 68

R. v. Winfield, 2009 YKCA 9 R. v. Bray, 2017 SKCA 17 R. v. McCorriston, 2010 MBCA 3 R. v. Sceviour, 2010 NLCA 47, 299 Nfld. & P.E.I.R. 144 R. v. Adams, 2011 NLCA 3, 303 Nfld. & P.E.I.R. 247 R. v. Furlong, 2012 NLCA 29, 323 Nfld. & P.E.I.R. 77 R. v. St. John’s (City), 2017 NLCA 71, 2 C.A.N.L.R. 373 R. v. McLean, 2020 NLCA 39 R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 R. v. Mackenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 R. v. C.D.G. (1995), (NL CA), 128 Nfld. & P.E.I.R. 312 (Nfld. C.A.) R. v. Tatton, 2015 SCC 33, [2015] 2 S.C.R. 574 R. v. Crews, 2015 NLCA 56, 371 Nfld. & P.E.I.R. 153 R. v.

Rhynes, 2004 PESCAD 15 R. v. Croft, 2003 NSCA 109 Theratechnologies Inc. v. 121851 Canada Inc., 2015 SCC 18, [2015] 2 S.C.R. 106 Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, [2015] 3 S.C.R. 801 R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330 (S.C.C.) R. v. Martin and Kennedy, 2021 NLCA 16 Hoegg J.A. (concurring): R. v. Newfoundland Recycling Limited, 2009 NLCA 28, 284 Nfld. & P.E.I.R. 153 R. v. R.R., 2008 ONCA 497 R. v. Pottie, 2013 NSCA 68 R. v. Dickson, 2012 MBCA 2 R. v. Crews, 2015 NLCA 56, 371 Nfld. & P.E.I.R. 153 R. v. Rhynes, 2004 PESCAD 15 R. v. Francis, 2011 NSCA 113 R. v.

C.S.M., 2004 NSCA 60 R. v. Quinlan Brothers Ltd., 2011 NLCA 22, 305 Nfld. & P.E.I.R. 184 R. v. McLean, 2020 NLCA 39 R. v. Ralph, 2008 NLCA 70, 281 Nfld. & P.E.I.R. 324 R. v. Chung, 2020 SCC 8 R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 Statutes considered: Butler J.A.: Criminal Code, sections 254, 258(1)(b), 271, 839

Liquor Control Act , RSNL 1990, c. L-18,

section 76 Canadian Charter of Rights and Freedoms , sections 9 , 10(

b) Occupational Health and Safety Act , RSNL 1990, c. O-3 Highway Traffic Act , RSNL 1990, c. H-3,

section 137 Securities Act , CQLR, c. V-1.1,

section 225.4 Hoegg J.A. (concurring): Criminal Code , sections 271 (b), 676(1) (a), 839 Liquor Control Act , RSNL 1990, c. L-18,

section 76 Fisheries Act , RSC 1985, c. F-14 Counsel: Appearing on his own behalf, the appellant; Arnold Hussey Q.C., for the respondent. The appeal was heard on February 11, 2021 before Hoegg, O’Brien and Butler JJ.A. The following judgment was filed on February 17, 2022 by Butler J.A., (O’Brien J.A. concurring), with separate concurring reasons by Hoegg J.A. ______________________________________________________________ Butler J.A.: INTRODUCTION [ 1 ] Devon Burry was convicted by a Provincial Court Judge of two counts of sexual assault contrary to

section 271 of the Criminal Code and one count of providing alcohol to a minor, contrary to

section 76 of the Liquor Control Act , RSNL 1990, c. L-18 . [ 2 ] Mr. Burry appealed these

summary convictions and a judge of the Supreme Court of Newfoundland and Labrador, sitting as a

Summary Conviction Appeal Court (“SCAC”) judge, dismissed his appeal ( R. v. Burry, 2020 NLSC 40 ). Mr. Burry now appeals the SCAC judge’s decision and seeks costs from the Crown. [ 3 ] Mr. Burry’s appeal to this Court is taken pursuant to section 839(1) of the Criminal Code which establishes a screening mechanism for potential appeals to this Court. It states: … an appeal to the court of appeal … may, with leave of that court or a judge thereof, be taken on any ground that involves a question of law alone… [ 4 ] Mr.

Burry’s factum did not raise the Liquor Control Act conviction and it will not be addressed in this decision. ISSUES [ 5 ] The first issue to be addressed is whether the test for leave has been met. If so, the three reframed grounds of appeal pursued at the hearing will be considered on their merits:

(1) Did the SCAC judge err in law in upholding the trial judge’s conclusion that the evidence supported a finding that no consent was established?

(2) Did the SCAC judge err in law in finding that the trial judge did not reverse the onus of proof?

(3) Did the SCAC judge err in law in finding that the trial judge correctly treated the offence of sexual assault as a general intent offence? ANALYSIS Leave to Appeal

[ 6 ] In this jurisdiction, the test for leave pursuant to

section 839 is well settled. As the appellant, Mr. Burry must establish ( R. v. Newfoundland Recycling Limited, 2009 NLCA 28 , 284 Nfld. & P.E.I.R. 153 (“ NL Recycling ”), at para. 9 ): (

a) the appeal must “be taken on a ground that involves a question of law alone”, and (

b) the ground(

s) of appeal must be such that: (

i) either the ground of appeal has a “reasonable possibility of success”, or (ii) “the proposed question of law [has significance] to the administration of justice”. [ 7 ] The test that has been adopted by this Court pursuant to

section 839 is not the same as that adopted in other Canadian jurisdictions. Other jurisdictions either declare that leave should be exercised “sparingly” or require a “clear error” before leave is granted ( R. v. Chaluk , 1998 ABCA 253 ; R. v. R.R. , 2008 ONCA 497 ; R. v. Bouchard, 2011 QCCA 30 ; R. v. Patel , 2017 BCCA 459 ; R. v. Petrin , 2013 NWTCA 1 ; R. v. Pottie , 2013 NSCA 68 ; R. v. Winfield , 2009 YKCA 9 ; R. v. Bray , 2017 SKCA 17 ; and R. v.

McCorriston, 2010 MBCA 3 ). [ 8 ] This more stringent approach to granting leave was specifically rejected by this Court in NL Recycling : [7] I would not go so far as Justice Doherty does when he wrote “leave to appeal pursuant to s. 839 should be granted sparingly”. Rather, I would say simply that the intended appellant must meet the appropriate test for leave to be granted. That test should not be unduly stringent. What is Required to Establish any Ground that Involves a Question of Law Alone? [ 9 ] Section 839(1) requires Mr.

Burry to establish that the appeal is taken on a ground that “involves a question of law alone”, as opposed to one that involves a question of fact or mixed fact and law. [ 10 ] My colleague has conducted a merits assessment of the grounds of appeal in her consideration of whether either “involves a question of law alone”.

She suggests that this should be confined to cases where the appellant alleges that the SCAC judge has misstated or misapplied an applicable legal principle in reviewing a trial judge’s decision. [ 11 ] Respectfully, I am of the view that in its determination of whether a ground of appeal “involves a question of law alone”, the Court: - conducts a straight forward characterization of the grounds of appeal; - does not apply an unduly stringent test; and - does not conduct a merits assessment of the grounds of appeal at this stage of the analysis. [ 12 ] This approach is well established in the jurisprudence I reference below. [ 13 ] In NL Recycling, this Court listed the grounds of appeal and identified each as either questions of law or mixed fact and law.

Three grounds were found to involve questions of law, including whether the trial judge applied the proper test for a strict liability offence (para. 15). That was sufficient to satisfy the section 839(1) element. [ 14 ] In R. v. Sceviour , 2010 NLCA 47 , 299 Nfld. & P.E.I.R. 144 , Mr. Sceviour was convicted by a Provincial Court judge of a breach of

section 254 of the Criminal Code , (failure to provide a breath sample when demanded by a police officer). The SCAC judge dismissed Mr. Sceviour’s appeal. On appeal, this Court determined that the legal issue identified related to “the relevance of evidence, being the results of a blood test showing that Mr. Sceviour was sober when he failed to provide a sample of his breath” (para. 7). The first element of the test for leave was addressed with the conclusion that “the ground of appeal involves a question of law alone” (para. 6). [ 15 ] In R. v.

Adams , 2011 NLCA 3 , 303 Nfld. & P.E.I.R. 247 , on a charge of operating a motor vehicle while impaired ( section 258(1) (b)), the trial judge rejected Mr. Adams’ submission of arbitrary detention in violation of

section 9 of the Charter and admitted evidence of the breathalyzer readings. The SCAC judge excluded the breathalyzer evidence and reversed the conviction. On appeal, this Court took the same approach to this element of the NL Recycling test finding that the “appeal raises questions of law regarding the correct principles to be applied in the circumstances” (para. 8). [ 16 ] In R. v. Furlong , 2012 NLCA 29 , 323 Nfld. & P.E.I.R. 77 , the Provincial Court judge found a breach of Ms. Furlong’s right to counsel as guaranteed by

section 10(

b) of the Charter , excluded the breathalyzer certificate and dismissed the charges. On appeal, the SCAC judge agreed with the trial judge that the lack of evidence respecting legal aid information meant that Ms. Furlong’s Charter right to counsel was breached; he dismissed the appeal. On further appeal this Court cited NL Recycling for the leave test and determined that the “appeal involves questions of law concerning who bears the burden of establishing the breach of a Charter right and how such a breach is to be proved” (para. 16). [ 17 ] In R. v. St.

John’s (City) , 2017 NLCA 71 , 2 C.A.N.L.R. 373 , the City was convicted of several offences under the Occupational Health and Safety Act, RSNL 1990, c. O-3 . The SCAC judge concluded that the trial judge had erred in his analysis of the elements of the offences and remitted the matter for a new trial.

On appeal, relative to the section 839(1) element, this Court characterized the issues on appeal and cross-appeal as “whether, after finding the trial judge had erred in his analysis of the actus reus of the offences, the appellate judge erred by remitting the matter for a new trial …” and “whether the appellate judge erred by failing to address the City’s defence of due diligence which had been rejected by the trial judge” (paras. 7 and 8). [ 18 ] Paragraph 10 was dedicated to the section 839(1) element. The Court held:

[10] I am satisfied that the second preliminary issue regarding a “new issue” and the issues on appeal and cross-appeal, set out above,raise questions of law. They require this Court to determine and assess the principles of law that may apply and they raise questions as towhether relevant factors were taken into account by the appellate and trial judges. … [19] An example of a case not meeting the section 839(1) element, because it did not involve a question of law alone, is R. v. McLean,2020 NLCA 39. Ms. McLean was convicted of failing to stop her vehicle for a school bus as required by

section 137 of the HighwayTraffic Act, RSNL 1990, c. H-3. The trial judge had found that she had driven past a school bus; she asserted that she did not (para. 6). The appeal to the SCAC was dismissed. On appeal this Court explained that Ms.

McLean’s grounds of appeal did not raise a question oflaw because “her only challenge to the trial judge’s decision amounted to challenging his findings of fact” (para. 8). [20] These authorities also confirm that the merits assessment is reserved for the second step of the well-established test in thisjurisdiction, set out in NL Recycling, where the Court considers whether there is a reasonable possibility of success.

Consistent with thetest not being “unduly stringent”, the jurisprudence confirms that the legal issue identified may be related to “the relevance of theevidence” (Sceviour), concerns over “who bears the burden of establishing the breach of a Charter right” (Furlong) or “suggested failureto address a defence of due diligence” (St. John’s (City)). Is this Appeal taken on a Ground that Involves a Question of Law Alone? [21] My assessment is guided by R. v.

Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20: … this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law: see R. v. Araujo,2000 SCC 65, [2000] 2 S.C.R. 992 (S.C.C.), at para. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 (S.C.C.), at para. 23. … [22] See also R. v.

Mackenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 54. [23] As will become apparent, I find the logic of this equally applicable to two of the reframed grounds of appeal. [24] In order to determine whether the appeal in this case has been taken on a ground that involves a question of law alone, it isnecessary to consider each of the three reframed grounds of appeal stated earlier herein.

(1) Did the SCAC judge err in law in upholding the trial judge’s conclusion that the evidence supported a finding that noconsent was established? [25] On the first ground of appeal, Mr. Burry challenges the SCAC judge’s conclusion that the trial judge did not err in finding thatthe evidence supported that no consent was established. This raises “questions of fact or mixed law and fact” because “the appellantseeks to have this Court review the evidence and make findings different from those of the trial judge. That is not our role” (NLRecycling, at para. 12). Therefore, this does not raise a question of law alone.

(2) Did the SCAC judge err in law in finding that the trial judge did not reverse the onus of proof? [26] On the second ground of appeal, at paras. 47-54 of his decision, the SCAC judge addressed whether the trial judge hadeffectively reversed the onus of proof and required Mr. Burry to establish consent.

He found no error. [27] These paragraphs of the SCAC judge’s reasons reflect the statement of legal standards (the onus of proof, the presumption ofinnocence, proof beyond a reasonable doubt and the mens rea element of the offence) and how the trial judge had applied them to thefacts of the case (Shepherd, at para. 20). [28] Mr. Burry alleges error in how the SCAC judge applied the law in concluding, as he did, that the trial judge had not erred. “[W]hether the trial judge applied the proper test” (in that case for a strict liability offence), raises an issue of law (NL Recycling, at para.15).

Specifically, “shifting the onus of proof to the accused … is a clear error of law” (R. v. C.D.G. (1995), (NLCA), 128 Nfld. & P.E.I.R. 312, at para. 78 (Nfld. C.A.)). [29] Therefore, this ground of appeal involves a question of law alone.

(3) Did the SCAC judge err in law in finding that the trial judge correctly treated the offence of sexual assault as a generalintent offence? [30] On the third ground of appeal, Mr.

Burry asserts that the SCAC judge erred in finding that the trial judge correctly treated theoffence of sexual assault as a general intent offence. [31] Once again, paragraphs 55-61 of the SCAC judge’s decision (cited later herein) reflect the SCAC judge’s statement of legalstandards respecting what the Crown was required to establish for the general intent offence of sexual assault and how the trial judgeapplied them to the facts of the case (Shepherd, at para. 20). The characterization of a charge as a specific or general intent offence is aquestion of law that is not fact-driven (R. v.

Tatton, 2015 SCC 33, [2015] 2 S.C.R. 574, at para. 14). The elements of an offence and theprinciples applicable thereto are questions of law. [32] I conclude that this ground of appeal also involves a question of law alone. Conclusion on Whether the Appeal Involves a Question of Law Alone [33] The second and third grounds of appeal asserted by Mr. Burry involve the application of legal standards to the facts of the case(Shepherd, at para 20).

These grounds are also akin to grounds of appeal which this court has accepted involve a question of law alonei.e. whether the trial judge applied the proper test for a strict liability offence (NL Recycling, at para. 15) or who bears the burden ofestablishing a breach of a Charter right (Furlong, at para. 16).

[34] Having met the first element of the NL Recycling test for leave (in that two of the three grounds of appeal involve a question oflaw alone), I turn to the other elements required for leave. That is, the appellant must establish that the grounds of appeal have areasonable possibility of success or that the question of law raised has significance to the administration of justice. For the reasons thatfollow, I would conclude that the appellant does not meet either of these requirements. Do the Grounds of Appeal have a Reasonable Possibility of Success? [35] “The error of law required to vest jurisdiction” in this Court “is an error of law on the part of the

Summary Conviction AppealCourt judge, not the trial judge” (R. v. Crews, 2015 NLCA 56, 371 Nfld. & P.E.I.R. 153, at para. 4, citing R. v. Rhynes, 2004 PESCAD15, at para. 21, and R. v. Croft, 2003 NSCA 109, at para. 8). [36] The Supreme Court of Canada has not commented on the “reasonable possibility of success” standard as a criterion in the test forleave to appeal under

section 839. However, the Supreme Court has addressed the term “reasonable possibility of success” on otheroccasions, in the context of a threshold requirement or screening mechanism for leave. [37] In Theratechnologies Inc. v. 121851 Canada Inc., 2015 SCC 18, [2015] 2 S.C.R. 106, the Court addressed the meaning of theterm utilized in

section 225.4 of Quebec’s Securities Act, CQLR, c. V-1.1. The Court explained that “a case with a reasonable possibilityof success requires the claimant to offer both a plausible analysis of the applicable legislative provisions, and some credible evidence insupport of the claim” (para. 39). [38] To similar effect, in Canadian Imperial Bank of Commerce v.

Green, 2015 SCC 60, [2015] 3 S.C.R. 801, the Court held that“reasonable possibility of success” equated to a reasonable or realistic chance that the appeal will succeed and the requirement thatclaimants offer both a plausible analysis of the applicable legislative provisions and some credible evidence in support of the claim (para.121). [39] With this guidance I conclude that the “reasonable possibility of success” element requires this Court to undertake a reasonedconsideration of the SCAC judge’s decision respecting each of the three reframed grounds of appeal to determine if Mr.

Burry hasprovided some credible basis for his grounds of appeal and thereby established a realistic chance that his appeal will succeed. (

i) Did the SCAC judge err in law in upholding the trial judge’s conclusion that the evidence supported a finding that no consentwas established? [40] As noted above, I have concluded that this ground of appeal does not involve a question of law alone, and leave would be deniedon that basis. (ii) Did the SCAC judge err in law in finding that the trial judge did not reverse the onus of proof? [41] The SCAC judge acknowledged that the Crown was required to prove beyond a reasonable doubt that the accused committed theact (actus reus) and had the necessary mental element (mens rea); he outlined the necessary elements of both the actus reus and the mensrea of sexual assault and correctly referenced R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330 (S.C.C.), throughout (SCACjudge’s reasons, at paras. 39-42). [42] The SCAC judge addressed the role that consent plays in the sexual assault analysis and recognized that it is treated differently atthe actus reus and mens rea stages of the analysis: [39] A conviction for sexual assault requires that the Crown prove beyond a reasonable doubt that the accused committed the actusreus (conduct element) and had the necessary mens rea (mental element).

Major, J. for the Supreme Court of Canada in Ewanchuk (atpara. 23) set out: A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reusand that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching.

The mens rea is the intention to touch,knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched. [40] The crime of sexual assault is committed (at para. 24) when “the sexual integrity of the victim is violated.” The Trial Judgeindicated (at page 351) in his reasons: [The complainant] had not characterized the grabbing of her “boobs” as meaning what sheunderstood to be “a sexual assault.” The Trial Judge was correct in stating, “[t]hat is not a requirement.” The complainant’s evidenceand that of the witness, R.W., established there was a violation of her “sexual integrity.” [43] The SCAC judge addressed the trial judge’s consideration of the burden of proof at paras. 47-54 of his decision: [47] The Trial Judge was very clear in his reasons that the Crown has the onus to prove the offences charged (at page 347 of thetranscript): “Any person charged with a criminal offence is presumed to be innocent until the Crown has proven beyond a reasonabledoubt that he or she has committed the offence with which that person is charged.

The onus of proof is always on the Crown.” [48] He cited case law on the meaning of “proof beyond a reasonable doubt.” He also referred to (at pages 347-348) and quotedparagraphs 26 to 28 of R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742, that it is not simply a matter of believing the Crownevidence or the Defence evidence. In terms of credibility, he referred (at page 349) to the case of Faryna v. Chorny, (BC CA), 1951 CarswellBC 133, [1952] 4 W.W.R. 171 (C.A.), paragraph 10. [49] Mr.

Burry refers to a comment from the Trial Judge that he submits the Trial Judge erred in law because he reversed the onusrequiring the accused to show there was consent given. Further, he states the Trial Judge erroneously switched the focus from “thesubjective” state of mind of the complainant to that of the accused. [50] The impugned statement from the Trial Judge (at page 351 of the transcript) that Mr. Burry takes issue with is: “It is the subjective

intent of the accused that is key and what must be proven beyond a reasonable doubt .” [51] I reject Mr. Burry’s position that the Trial Judge reversed the onus and relied on the accused’s state of mind to prove the complainant’s lack of consent. I find the Trial Judge was focusing on the mens rea element of the offence when he made the impugned comment, and addressing the possible defence of communicated consent. This is apparent from his following comments: “While she was friendly with Mr. Burry, she clearly maintained that this was purely platonic even though she was aware he felt differently about her.

This in no way could be characterized as leading him on.” [52] Mr. Burry submits he did not argue the defence of communicated consent at trial, and is not relying on the defence in his appeal, so there was no need for the Trial Judge to deal with the accused’s “subjective intent.” An analysis of the accused’s mental state is an essential component of sexual assault. The trial had to be satisfied on both elements of the mens rea , (

i) the intention to touch, and (ii) lack of communicated consent.

On the second element of mens rea , even where the defence of communicated consent is not raised by the accused, “the accused is entitled to have all available defences founded on a proper basis considered by the court, whether he raises them or not” Ewanchuk , paragraph 55 . [53] Ewanchuk (at paras. 47 and 49 ) and Barton (at para. 90) confirm the focus at the mens rea stage “shifts to the mental state of the accused.” In the context of mens rea , “consent” means the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with Mr.

Burry. “A belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence:” ( Ewanchuk at para. 51 ). To that I include “submissiveness” and “acquiescence.” Mr. Burry was “testing the waters” with the complainant, and once she said “No” he required an unequivocal “Yes” by either her spoken word or her conduct ( Ewanchuk at para. 51 ).

The Trial Judge was left with no reasonable doubt on the mens rea ; neither am I. [54] The Trial Judge could have more clearly expressed himself on the role of the mental state of the accused for the purposes of the mens rea of the offence. That does not detract from his finding on lack of consent on the complainant’s part.

The basis for the sexual assault convictions was established on the evidence beyond a reasonable doubt on each element of the offence. (Emphasis in original.) [ 44 ] The SCAC judge correctly stated and applied the legal principles applicable to the establishment of proof beyond a reasonable doubt. He addressed Mr. Burry’s assertion that the trial judge had effectively required Mr. Burry to show there was no consent given. No error is reflected in the SCAC judge’s review of the trial judge’s application of the legal standards to the facts of the case on this ground of appeal. Mr.

Burry has therefore not established a reasonable possibility of success on this ground of appeal. (iii) Did the SCAC judge err in law in finding that the trial judge correctly treated the sexual assault as a general intent offence? [ 45 ] On this issue the SCAC judge wrote: 3. Did the Trial Judge treat the crime of sexual assault as a specific intent offence as opposed to a general intent offence? [55] The court in Ewanchuk under the mens rea analysis pointed out (at para. 41): “Sexual assault is a crime of general intent.

Therefore, the Crown need only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement.” [56] Mr. Burry states the Trial Judge is treating the crime of sexual assault as if it were the same as sexual interference under

section 151 of the Criminal Code to a person under the age of 16 years, which is a crime of specific intent. As Ewanchuk establishes , the Crown need only prove that the accused intended to touch the complainant in order to satisfy the mens rea requirement. The Trial Judge found the Crown had proven the mens rea beyond a reasonable doubt in that Mr. Burry had intended to touch the complainant knowing of a lack of consent on her part. [57] I find on the whole of the evidence considered by the Trial Judge and his reasoning in convicting Mr. Burry, he did so on the basis of a general intent offence. In the Trial Judge’s

summary of Mr. Burry’s evidence (at page 345 of the transcript) regarding the December 2016 Incident: “He had a good recall of the drive, but mentioned nothing of the touching, either to deny it happened or to confirm it happened . Given the level of detail in Mr. Burry’s testimony, I found that an odd omission.” [Emphasis mine] [58] As for the May 2017 Incident, Mr. Burry had denied in his evidence it happening, but the Trial Judge rejected his evidence and found sexual touching had occurred based on the complainant’s evidence and that of the witness, R.

W. [59] In the Trial Judge’s analysis and overall assessment of the evidence he made the following observations (at page 353 of the transcript): “Mr. Burry’s evidence was self-congratulatory and largely lacked credibility. I have, as such, rejected his testimony, where it is at odds with the evidence I do accept, and it has not raised a reasonable doubt.” [60] Later (at page 354 of the transcript), the Trial Judge concluded: “I have accepted [the complainant’s] evidence in terms of the sexual touching and rejected Mr. Burry’s evidence. She provided no consent, quite the contrary and he sought none .

Having reviewed the evidence on the whole, I am satisfied that the Crown has proven both

section 271 charges beyond a reasonable doubt.” [61] The complainant in her mind, and she was clear in her evidence on this, did not want the sexual touching to take place, and I find no reason to disturb the Trial Judge’s conclusion on the basis of any of the three grounds set out in section 681(1) (

a) of the Criminal Code . (Emphasis in original.) [ 46 ] The SCAC judge made a thorough review of the trial judge’s reasons, the testimony provided by Mr. Burry respecting the

December 2016 and May 2017 incidents, and the trial judge’s characterization of Mr. Burry’s evidence (which he found not to be credible). [ 47 ] The SCAC judge referenced the conclusions drawn by the trial judge based upon the complainant’s evidence and concluded that the trial judge had appropriately treated the offence as a general intent offence (SCAC judge’s reasons, at para. 57). [ 48 ] Again, the SCAC judge’s assessment of the trial judge’s decision on this issue was based upon correct legal principles applied to the facts of the case. No credible basis is provided for this ground of appeal and Mr.

Burry has therefore not established a reasonable possibility of its success. Conclusion on Reasonable Possibility of Success [ 49 ] In

summary, neither of the relevant grounds of appeal meet the requirement that they have a reasonable possibility of success. Does the Question of Law Raised have Significance to the Administration of Justice? [ 50 ] Notwithstanding my conclusion on the appellant’s failure to establish a reasonable possibility of success on any ground of appeal, leave may still be granted if a proposed question of law raised has significance to the administration of justice. [ 51 ] The components of the offence of sexual assault, the role of consent, related credibility assessments, and the applicable onus of proof raised by Mr.

Burry address well-settled areas of the law. They are naturally of tremendous importance to Mr. Burry but they do not have implications beyond this specific case. This is not a case of a decision which establishes a standard or principle that could be of general application to other cases. [ 52 ] The grounds of appeal do not therefore raise a question of law of significance to the administration of justice ( R. v. Martin and Kennedy , 2021 NLCA 16 , at para. 8 ).

SUMMARY [ 53 ] Applying the NL Recycling test for leave to appeal under

section 839 of the Criminal Code , while Mr. Burry’s appeal was taken on two grounds that involve a question of law alone, I conclude that neither of these grounds of appeal have a reasonable possibility of success or significance to the administration of justice. The test for leave in NL Recycling has therefore not been met. [ 54 ] I would therefore deny leave to appeal pursuant to section 839(1) of the Criminal Code and dismiss his claim for costs. Hoegg J.A. (concurring in the result): INTRODUCTION [ 55 ] Devon Burry was convicted by a Provincial Court Judge of two counts of sexual assault contrary to

section 271 (

b) of the Criminal Code and one count of providing alcohol to a minor contrary to

section 76 of the Liquor Control Act . [ 56 ] Mr. Burry appealed these

summary convictions to the

Summary Conviction Appeal Court (“SCAC”) and the SCAC Judge dismissed his appeal ( R. v. Burry , 2020 NLSC 40 ). Mr. Burry seeks leave to appeal the SCAC Judge’s decision to this Court. The question of leave was heard together with Mr. Burry’s appeal. LEAVE TO APPEAL: THE LAW [ 57 ] Mr. Burry’s appeal is taken pursuant to section 839(1) of the Criminal Code . Section 839(1) governs appeals related to

summary conviction offences which have already been through an appeal to the SCAC under sections 830 and 834 of the Code . [ 58 ] Section 839(1) reads: … an appeal to the court of appeal… may, with leave of that court or a judge thereof, be taken on any ground that involves a question of law alone… Mr.

Burry must therefore obtain the leave of this Court to appeal the SCAC Judge’s decision. [ 59 ] The statutory jurisdiction of the Court of Appeal to hear a section 839(1) appeal is grounded in the involvement of a question of law alone, and the Court has no jurisdiction to go beyond questions of law into questions of fact or mixed fact and law ( NL Recycling , at paras. 4 and 13).

Moreover, s. 839(1) is discretionary, meaning that an appellate court has the discretion to deny leave to appeal even when a question of law is involved ( NL Recycling , at para. 4). [ 60 ] The reason why the granting of leave is discretionary, even when a question of law alone is involved, was explained in R.R. , at para. 26 , wherein Doherty J.A. said “There is no sensible criminal law policy that would justify more extensive rights of appeal in relatively minor criminal matters than those available in the most serious criminal cases.” Justice Doherty addressed the scope of a section 839(1) appeal by emphasizing three points:

[24] …First, the appeal is not a second appeal from the trial decision; rather, it is an appeal from the decision of a Superior Court judge [the SCAC judge]. Second, the appeal is limited to questions of law alone. Like the Supreme Court of Canada on indictable appeals … this Court cannot revisit factual findings or correct errors of mixed fact and law. Third, even if the applicant raises a question of law arising out of the decision of the Superior Court judge [the SCAC judge] the applicant must still convince [the court] that leave to appeal should be granted on that question of law.

Not all questions of law merit a second appeal. [ 61 ] See also Pottie , where the Nova Scotia Court of Appeal put it this way: [20] …When a

summary conviction matter is granted a second appeal to a provincial appellate court, it becomes the third court involved in the proceedings. If leave to the provincial appellate courts is not granted selectively, [parties to]

summary matters would essentially have more appeal rights than [parties to] some of the most serious criminal cases at the Supreme Court of Canada… ( See also R. v. Dickson , 2012 MBCA 2 , at para. 14 .) [ 62 ] In R.R. , the Court determined that, once jurisdiction was established, leave to appeal under section 839(1) of the Code should be granted sparingly. In NL Recycling , Rowe J.A. considered the Ontario approach in R.R. saying: [7] I would not go so far as Justice Doherty does when he wrote "leave to appeal pursuant to s. 839 should be granted sparingly".

Rather, I would say simply that the intended appellant must meet the appropriate test for leave to be granted. That test should not be unduly stringent. Rowe then set out the appropriate test for determining which

summary conviction appeals that involve questions of law alone ought to merit a second appeal: [9] Thus, to obtain leave to appeal pursuant to s. 839(1): (

a) the appeal must “be taken on a ground that involves a question of law alone”, and (

b) the grounds of appeal must be such that: (

i) either the ground of appeal has a “reasonable possibility of success”, or (ii) “the proposed question of law [has significance] to the administration of justice”. [ 63 ] The nature of the question of law alone that must be involved in order for leave to be granted pursuant to section 839(1) was considered by this Court in Crews . In Crews , at paras. 3-4 , Rowe J.A. explained, by quoting from R. v. Rhynes , at para. 21 , that the question of law alone in section 839(1) is one that raises legal error on the part of the SCAC judge: [21] The error in law required to vest jurisdiction in the [Court of Appeal] is an error of law on the part of the

Summary Conviction Appeal Court judge, not the trial judge. … [ 64 ] In Crews , the proposed question of law was that the SCAC judge had not properly dealt with an allegation that certain evidence had been improperly admitted by the trial judge. The Court determined that no question of law was involved because the SCAC judge had made no error in his handling of the

summary conviction appeal, and denied leave without going on to consider the likelihood of the appeal’s success or its significance to the administration of justice. However, the Court had given oral judgment directly after the hearing to the effect that none of the criteria for leave was met, and repeated that conclusion in its written decision. [ 65 ] In R. v. Francis , 2011 NSCA 113 , Fichaud J.A. explained the required question of law by quoting the following from R. v. C.S.M. , 2004 NSCA 60 : [26] Under s. 839(1), the issue is whether the SCAC judge has erred in “law alone”.

The Court of Appeal is considering an appeal from the SCAC, not a de novo appeal from the trial court. This Court must determine whether the SCAC erred in law in the statement or application of the principles governing the review by the SCAC of the trial verdict… [ 66 ] In R. v. Quinlan Brothers Ltd. , 2011 NLCA 22 , 305 Nfld. & P.E.I.R. 184 , Mercer J.A. found that no question of law was involved in that appeal to this Court. Quinlan Brothers had sought leave to appeal its conviction under the Fisheries Act , RSC 1985, c. F-14 , on the basis that the courts below had rejected its due diligence defence.

In denying leave, this Court stated: [10] There was no contention, nor any basis for such contention, that either the trial judge or the

Summary Conviction Appeal Court judge misstated the law pertaining to the defence of due diligence. The submissions centered on whether the appellant exercised reasonable care, i.e., due diligence – in the circumstances.

That is a matter of mixed fact and law and leave to appeal should therefore be denied. … [ 67 ] The Court went on to reject the second argument for leave which concerned the relevance of the roles of other parties to the appellant’s actions, saying that the roles of other parties did not detract from the appellant’s obligations and accordingly did not raise a question of law respecting application of the legal principles of due diligence (para. 14), and denied leave, saying: [15] This appeal involved a question of mixed fact and law for which an appeal does not lie to this Court. … The Court also found that even if the threshold requirement of the involvement of a question of law alone had been established, the appellant had failed to establish either that the ground of appeal had a reasonable possibility of success or that the proposed question of law had significance to the administration of justice. [ 68 ] In NL Recycling , whether the appeal involved a question of law was addressed.

Nine grounds of appeal were alleged, of which six were dismissed as not involving errors of law. Rowe J.A. noted that these six grounds of appeal did not raise questions of law despite

assertions that they did: [12] Notwithstanding that all nine grounds of appeal are stated to be questions of law, grounds (iii) to (viii) are questions of facts or mixed law and fact, wherein counsel for the appellant seeks to have this Court review the evidence and make findings different from those of the trial judge. … Justice Rowe went on to state that it is not the role of this Court to hear

section 839 appeals in such circumstances. [ 69 ] The Court said that the remaining grounds involved two questions of law: (1) whether the test for strict liability was properly applied, and (2) how words in a regulation were to be interpreted. These grounds of appeal alleged error in how the SCAC judge applied the law and how he interpreted a statutory provision. These two questions are clear questions of law. The Court went on to rule that the SCAC judge’s decision respecting the application of the test for strict liability was clear and persuasive so there was no reasonable possibility of success on the grounds involving strict liability, and because the factual basis for

interpretation of the words in the regulations was indisputable, there was no reasonable possibility of success on the grounds involving that issue ( NL Recycling , at paras. 12-14). [ 70 ] In McLean , the appeal was based on factual error alleged to have been made by the trial judge, and which the SCAC judge had addressed in his review of the trial judge’s decision. In denying leave to appeal, Welsh J.A. stated: [9] … Ms. McLean’s appeal does not raise a question of law. On that basis alone, leave to appeal would be denied… See also R. v.

Ralph , 2008 NLCA 70 , 281 Nfld. & P.E.I.R. 324 , where one of the grounds on appeal was whether the appellant had established due diligence in insuring that a reasonable process existed for the reporting of landed and purchased snow crab. This Court denied leave on this ground of appeal on the basis that the question was one of mixed fact and law, and not one of law alone (para. 16). [ 71 ] The requirement to establish that an appeal raises a question of law alone is not unique to s. 839 appeals from a SCAC to a provincial court of appeal.

That is the requirement that the Crown must meet in order to appeal an acquittal to a court of appeal under s. 676(1)(

a) of the Code . [ 72 ] That requirement was recently addressed by the Supreme Court of Canada in R. v. Chung , 2020 SCC 8 , which involved a Crown appeal of an accused’s acquittal of a charge of dangerous driving causing death. At paragraphs 10-11 of Chung , the Court explains: 10 Under s. 676(1)(a) , the Crown can only appeal an acquittal on a "question of law alone". An appealable error must be traced to a question of law, rather than a question about how to weigh evidence and assess whether it meets the standard of proof ( R. v. H. (J.M.) , 2011 SCC 45 , [2011] 3 S.C.R. 197 (S.C.C.) , at paras. 25-27 ; R. v.

George , 2017 SCC 38 , [2017] 1 S.C.R. 1021 (S.C.C.) , at paras. 15-17 ). … 11 Errors of law arise, for example, where "the legal effect of findings of fact or of undisputed facts raises a question of law" and where there is "an assessment of the evidence based on a wrong legal principle" ( H. (J.M.) , at paras. 28-30 ).

These two types of errors are somewhat similar; they both address errors where the trial judge's application of the legal principles to the evidence demonstrates an erroneous understanding of the law, either because the trial judge finds all the facts necessary to meet the test but errs in law in its application, or assesses the evidence in a way that otherwise indicates a misapprehension of the law. [ 73 ] My colleague relies on Shepherd , which succinctly states that the application of a legal standard to the facts of the case is a question of law.

I agree that Shepherd pertains, and I would say that it is how that standard is applied that raises a question of law alone. [ 74 ] All criminal cases involve the application of legal principles and it would be expected that any appeal to the SCAC, including appeals based on questions of fact and questions of mixed fact and law, would involve the application of legal principles. It is when a SCAC judge has applied the wrong law or misapplied the right law in reviewing a trial judge’s decision that a question of law alone is involved in a section 839(1) appeal.

Such legal error would typically be raised by an appellant’s allegation that the SCAC judge misstated or misapplied the law respecting the issues raised in the grounds of appeal, although such misstatement or misapplication could also be apparent even if the appellant does not raise them. Without the requirement for such legal error on the part of the SCAC judge to be alleged or apparent in an appeal to this Court, this Court would be conducting a second review of the trial judge’s decision like that which the SCAC judge already carried out.

This is not our criminal law process. [ 75 ] Stating or alleging in a leave application or an appeal that an error of law was made, or that the SCAC judge erred as alleged, does not mean that a question of law alone is involved. In particular, asserting in an appeal that a SCAC judge erred in law because he or she upheld the trial judge does not mean that a question of law alone is involved.

Such an assertion could, in reality, be based on an error of fact or an error of mixed fact and law like in Quinlan Brothers and Ralph , and some issues in NL Recycling , or it could simply be a request for this Court to engage in a second review of the trial judge’s decision like that which was carried out by the SCAC ( NL Recycling , at para. 12). A question of law alone is also not involved by asserting a theoretical question of law that has no relationship to the case at hand.

Any question of law that is asserted to be involved in a given appeal must relate to the live issues and factual context of the case under appeal. This is a matter of logic. [ 76 ] In

summary, when leave is sought to appeal the decision of a SCAC judge pursuant to section 839(1), the question for the Court is whether a question of law alone is raised in the SCAC judge’s review of the trial judge’s decision . No question of law alone is involved if the appellant is alleging errors of fact or errors of mixed fact and law, or if the appellant is seeking to have this Court conduct a second review of the trial proceedings with a view to making findings different from those of the trial judge.

Neither is a question of law involved if the appellant argues a theoretical question of law that has no relationship to the case under appeal. [ 77 ] If a leave to appeal application to this Court alleges misstatement or misapplication of the law on the part of the SCAC judge in reviewing the trial judge’s decision, or other legal error, such as jurisdictional error, is raised or identified by the Court, then a question of law alone can be said to be involved and the Court must go on to consider whether the appeal has a reasonable possibility of success or has significance to the administration of justice.

Unless legal error in the SCAC judge’s review of the trial judge’s decision is raised in

the appeal, there is no question of law alone involved, and this Court would not have the jurisdiction to hear the appeal. THIS CASE [ 78 ] The Crown argues that leave to appeal should not be granted to Mr. Burry because his grounds of appeal do not raise a question of law alone. The Crown maintains that Mr. Burry’s grounds of appeal relate to questions of fact or questions of mixed fact and law, and that Mr. Burry’s grounds of appeal are based on his disagreement with the SCAC Judge’s conclusions. The Crown points out that for the most part Mr.

Burry made the very same arguments before the SCAC, which the SCAC Judge rejected. The Crown submits that even if Mr. Burry’s appeal raised a question of law, this Court should deny leave because the appeal has no reasonable possibility of success nor significance to the administration of justice. ANALYSIS [ 79 ] For the reasons that follow, I would deny leave to appeal on the basis that no question of law is involved in Mr. Burry’s appeal. [ 80 ] Mr.

Burry characterized each of his grounds of appeal as legal error on the part of the SCAC Judge, saying that the SCAC Judge erred in law by upholding the trial judge respecting each of the issues he raised in his appeal. Mr. Burry does not allege that the SCAC Judge made any incorrect statement of the law or that he incorrectly applied any principle of law relevant to the issues he raised in the SCAC. He simply disagrees with the SCAC Judge’s conclusions that the trial judge had not erred as Mr. Burry alleged. Moreover, Mr.

Burry stated in his factum that the arguments he was making to this Court are the same ones he made to the SCAC Judge. [ 81 ] Mr. Burry argued three grounds of appeal: (1) the SCAC Judge erred in law in upholding the trial judge’s conclusion that the complainant did not consent to the assault; (2) the SCAC Judge erred in law in concluding that the trial judge did not reverse the onus of proof; and (3) the SCAC Judge erred in law in concluding that the trial judge correctly treated the offence of sexual assault as a general intent offence. [ 82 ] Mr.

Burry’s appeal focused primarily on the trial judge’s conclusion that the complainant did not consent to his sexual assaults. Mr. Burry also argued that the trial judge reversed the onus of proof, and that he treated sexual assault as a specific intent offence. These three issues are the very same issues Mr. Burry raised and argued in his appeal to the SCAC, and which the SCAC Judge considered and rejected in his review of the trial judge’s decision. Nowhere in Mr. Burry’s appeal to this Court does he allege that the SCAC judge misstated or misapplied the law respecting his handling of these issues. Mr.

Burry simply asserts that the SCAC Judge erred by agreeing with the trial judge. Nevertheless, to ensure that there is no question of law alone raised in Mr. Burry’s appeal which he has been unable to articulate, I have reviewed the SCAC Judge’s decision and Mr. Burry’s written and oral submissions. The SCAC Judge’s Review of the Trial Judge’s Decision [ 83 ] The SCAC Judge began his review of the trial judge’s decision by describing the powers he had as a SCAC Judge, and the standard of appellate review that governed his task.

He then stated the law regarding a trial judge’s obligation to give sufficient reasons for decision and the law respecting the finding of facts, drawing factual inferences, and assessing credibility. Mr. Burry does not allege, and I do not see, any question of law alone raised in the SCAC Judge’s statement of these governing principles. The Consent Issue [ 84 ] The SCAC Judge then turned to Mr. Burry’s main argument, which was his contention that the trial judge had erred in determining that the complainant had not consented to the assaults.

Determination of whether a complainant in a sexual assault case consented is a question of mixed fact and law. [ 85 ] Mr. Burry had argued at trial that the complainant had acquiesced in his assaults, essentially by not complaining to the police until a subsequent alarming event caused her to do so, and that her acquiescence constituted consent. He made the same argument to the SCAC. The SCAC Judge considered the argument, reviewed the trial evidence, and determined that the trial judge’s conclusion that the complainant did not consent was reasonable and supported by the evidence.

In so doing, the SCAC Judge cited the law respecting consent in sexual assault and explained, in detail, why he was unable to disturb the trial judge’s conclusion that the complainant did not consent. [ 86 ] Mr. Burry’s appeal to this Court is a re-argument of his view of the trial evidence and that the trial judge’s determination that the complainant did not consent was wrong. Mr. Burry points to no part of the SCAC Judge’s decision which could be said to show misstatement or misapplication of the law respecting consent in sexual assault, and no such misstatement or misapplication is otherwise apparent.

Like the appellant in NL Recycling , Mr. Burry takes issue with the conclusions arrived at by the SCAC Judge after his consideration of the evidence. These conclusions are based on a mix of fact and law. [ 87 ] Mr. Burry’s appeal to the SCAC respecting consent involved mixed fact and law and his re-argument on appeal to this Court remains a question of mixed fact and law. Whether the complainant consented does not become a question of law alone because Mr. Burry characterized it as such in his appeal to this Court. Mr.

Burry is simply requesting that this Court review the trial evidence again and substitute a different conclusion from that of the SCAC Judge. I see no question of law alone raised in this ground of appeal. The Onus of Proof Issue [ 88 ] Mr. Burry also argues that the SCAC Judge erred by failing to find that the trial judge erred in shifting the onus of proof from the Crown to him. Mr. Burry’s argument to the SCAC Judge was that the trial judge erred by addressing his (Mr. Burry’

s) subjective intent, and that this somehow shifted the onus to prove the offence from the Crown to him to disprove it. The SCAC Judge considered Mr.

Burry’s argument in his review of the trial decision, and explained to Mr. Burry that the Crown was required to prove beyond a reasonable doubt that he committed the actus reus of the offence and also that he had the intent ( mens rea ) to do so. The SCAC Judge determined that the trial judge properly considered Mr. Burry’s subjective intent in the context of determining whether the Crown established that Mr. Burry had the requisite mens rea to prove the offence of sexual assault, and that there was nothing to suggest that onus of proof was engaged.

The SCAC Judge’s conclusion was arrived at by his considering whether the facts and the record supported Mr. Burry’s allegation that the trial judge had shifted the onus of proof. [ 89 ] Insofar as the SCAC Judge’s conclusion could be said to involve application of the law respecting onus of proof to Mr. Burry’s case, his conclusion is based on mixed fact and law. Mr. Burry’s disagreement with that conclusion remains a question of mixed fact and law in his appeal to this Court. He is requesting this Court to reconsider the trial evidence like the SCAC Judge already did and come to a different conclusion. Mr.

Burry’s request respecting onus of proof is no different than his request respecting the consent issue; he disagreed with the SCAC Judge’s assessment that the complainant did not consent, so he appealed. The SCAC Judge’s conclusion respecting consent was based on mixed fact and law, and his conclusion respecting burden of proof was also based on mixed fact and law. There is no question of law alone respecting either issue, and no question of law alone respecting onus of proof. Mr.

Burry’s appeal to the SCAC did not involve the application of a wrong legal principle or a failure to apply the correct law ( Chung ) nor misapplication of the law ( Shepherd) , and his same argument in this Court does not either. Not only does Mr. Burry not raise a question of law, but his argument respecting onus of proof does not relate to the live issues in the case or its factual context. It appears as though Mr. Burry misunderstands both mens rea and burden of proof, and that he has raised burden of proof as a theoretical legal issue despite it having no meaningful relevance to his case.

His misunderstanding does not convert the SCAC Judge’s conclusion into a question of law alone on a

section 839 appeal to this Court. Specific and General Intent [ 90 ] Mr. Burry argued at the SCAC that the trial judge erred by treating sexual assault as a crime of specific intent, and he argues in this Court that the SCAC Judge erred by agreeing that the trial judge did not do so. Mr. Burry does not argue how sexual assault being treated as a specific intent offence would matter to his case. [ 91 ] Sexual assault is a crime of general intent; it does not require a specific result, like harm or injury, to be intended in order for a conviction to obtain. Mr.

Burry does not point to any part of the trial judge’s decision that could possibly form the basis for his argument to the SCAC. Nevertheless, the SCAC Judge considered the argument and painstakingly reviewed the record so as to be sure. He explained to Mr. Burry that the trial judge properly treated the offence of sexual assault as a crime of general intent throughout the trial and in his decision. [ 92 ] Mr.

Burry does not allege any misstatement or misapplication of the law respecting crimes of specific and general intent by the SCAC Judge, and no such error is apparent in the SCAC Judge’s treatment of the issue ( Chung and Shepherd ). The Judge’s conclusion that the Judge did not treat sexual assault as a crime of specific intent was based on a factual search through the record and the trial judge’s decision to see if Mr. Burry’s argument had a basis, because Mr. Burry did not point to anything in the trial judge’s handling of the trial or his decision to support such an assertion.

In this regard, the SCAC Judge’s conclusion that the trial judge treated the offence as a crime of general intent could be considered a factual conclusion. Given that the SCAC Judge arguably applied the law respecting specific and general intent to the judgment as a whole in his search for a basis for Mr. Burry’s argument, it could also be considered a conclusion based on mixed fact and law. Mr. Burry’s disagreement with the SCAC Judge’s conclusion does not convert the issue into a question of law alone for the purposes of

section 839 in this Court. Moreover, and again, Mr. Burry is asserting a legal principle that he does not understand and that bears no relationship to his case. His misunderstanding does not become a question of law alone because the SCAC Judge dealt with it by explaining the law to him and that the trial judge did not do as Mr. Burry alleged. In my view, no question of law alone respecting specific and general intent is involved in Mr.

Burry’s appeal. [ 93 ] The SCAC Judge concluded his review of the trial judge’s decision, saying: [71] The Trial Judge made no reversible error on any of the grounds raised, or otherwise that I could find after a thorough review of the trial transcript and fully considering written and oral submissions. [ 94 ] In

summary, after reviewing Mr. Burry’s written and oral submissions to this Court, as well as the SCAC Judge’s careful and thorough decision, I see no question of law alone involved in his appeal that could support this Court’s jurisdiction to grant leave to appeal. Mr. Burry is simply requesting this Court to review the trial evidence and the trial judge’s decision, like the SCAC Judge already did, and come to a different conclusion. That is not this Court’s role. [ 95 ] While I do not see that this Court has jurisdiction to proceed to consider whether Mr.

Burry’s appeal has significance to the administration of justice or a reasonable possibility of success, I agree with my colleague that if Mr. Burry’s appeal had raised a question of law alone, his leave application would fail on these bases. [ 96 ] In the result, I would not grant leave to appeal, and I would dismiss Mr. Burry’s appeal. In this circumstance, there would be no basis on which to address Mr. Burry’s submission that he be awarded costs against the Crown. Leave to appeal dismissed.