R. v. McLean, 2020 NLCA 39

Kaitlyn McLean (applicant/appellant) v. Her Majesty the Queen (respondent) (19/66) Indexed As: R. v. McLean 2020 NLCA 39 6 C.A.N.L.R. 121 Court of Appeal of Newfoundland and Labrador Welsh J.A. December 1, 2020

Summary: Ms. McLean required leave to appeal the

summary conviction appeal court’s dismissal of her appeal against conviction for failing to stop her vehicle for a school bus as required by

section 137 of the Highway Traffic Act . The Crown applied to have Ms. McLean’s notice of appeal struck on the basis that she failed to file her factum as directed by the Court (paragraph 2). It was more appropriate to deal with the matter by addressing the question of leave to appeal (paragraph 3). Held: Application dismissed. Leave to appeal denied. Welsh J.A.: In the case of an offence under provincial legislation, procedural provisions of the Criminal Code apply (

section 6 of the Provincial Offences Act ) (paragraph 4).

Section 839 of the Criminal Code requires leave of the court to appeal against a decision of the

summary conviction appeal court. The relevant test is set out in R. v. Kennedy , 2020 NLCA 11 (paragraph 5 ). Ms. McLean’s appeal did not raise a question of law. The

summary conviction appeal judge made findings of fact based on the evidence, and gave reasons for his conclusions (paragraphs 6-8). The requirements for leave to appeal were not satisfied. Ms. McLean did not raise a question of law. Further, the appeal had no possibility of success. Finally, the appeal did not raise a question of law having significance to the administration of justice (paragraph 9). Cases cited: R. v. Kennedy , 2020 NLCA 11 . Statutes considered: Highway Traffic Act , RSNL 1990, c. H-3 ,

section 137 Provincial Offences Act , SNL 1995, c. P-31.1,

section 6 Criminal Code ,

section 839 Rules considered: Court of Appeal Criminal Appeal Rules (2002) , rule 10. Counsel:

Counsel: Appearing on her own behalf, the appellant; Dana E. Sullivan, for the respondent. The application was heard on December 1, 2020, with a decision given orally by Welsh J.A. The following memorandum of disposition was filed on December 1, 2020 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] Kaitlyn McLean was convicted, on

summary conviction, of failing to stop her vehicle for a school bus as required in accordance with

section 137 of the Highway Traffic Act , RSNL 1990, c. H-3 . Her appeal to the

summary conviction appeal court was dismissed. An appeal of that decision to this Court requires leave. At the hearing, I denied leave to appeal. An explanation of my reasons follows. [ 2 ] The Crown applied to have Ms. McLean’s notice of appeal struck on the basis that she failed to file her factum by November 20, 2020, as directed by this Court. Rule 10 of the Court of Appeal Criminal Appeal Rules (2002) provides for striking out a notice of appeal:

(1) Subject to Rule 10(3), non-compliance with these Rules does not render a proceeding void, but where non-compliance occurs, the Court may give any direction or make any order it considers appropriate to give effect to the intent of these Rules.

(2) Where a party to an appeal or counsel fails to perfect the appeal ..., or a party ... otherwise fails to comply with these Rules, the Court, on application ..., may (

a) strike out the appeal; ... [ 3 ] I did not strike out the appeal on the basis that Ms. McLean failed to file written submissions by November 20, 2020. Rather, having read the record and carefully considered the circumstances, I was satisfied that it would be most appropriate to deal with the matter by addressing the question of leave to appeal. I heard submissions from Ms. McLean and counsel for the Crown and was satisfied that proceeding with the question of leave would not prejudice either party. Ms.

McLean had been given a date by which to file her factum, had taken advantage of the Court’s free legal assistance clinic and chosen to proceed without counsel, and had made submissions on her own behalf in the

summary conviction appeal court. She had the same opportunity in this Court. [ 4 ] I proceeded in this manner on the basis that leave to appeal is required in this case because it is an appeal from the

summary conviction appeal court. The governing legislation is found in

section 6 of the Provincial Offences Act , SNL 1995, c. P-31.1 , and

section 839 of the Criminal Code .

Section 6 of the Provincial Offences Act provides: Except where and to the extent that it is otherwise specifically enacted, the provisions of the Criminal Code respecting

summary convictions and the proceedings relating to them apply, with the necessary changes, in respect of offences and orders and proceedings relating to the offences and orders made or to be made under this Act. [ 5 ]

Section 839 of the Criminal Code deals with appeals from the

summary conviction appeal court, and specifically requires leave in order to proceed with an appeal in this Court. Leave may be given by the court “or a judge thereof”. The test to be applied in determining whether leave should be granted is discussed in Kennedy v. R. , 2020 NLCA 11 : [5] Leave to appeal is required where a decision of a

summary conviction appeal court is at issue (

section 839 of the Criminal Code ). The applicable test is set out in Newfoundland Recycling Ltd. v. Newfoundland and Labrador (Attorney General) , 2009 NLCA 28 , 284 Nfld. & P.E.I.R. 153 : [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 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”. [ 6 ] Ms. McLean’s appeal does not satisfy any of these requirements. First, her submissions do not raise a question of law. Her

position is simply that she did not drive past a school bus in contravention of

section 137 of the Highway Traffic Act . In his oral decision, the

summary conviction appeal judge carefully explained that the trial judge, having heard all the witnesses, made findings of fact regarding what had happened. The trial judge clearly stated, with reasons, that he believed the testimony of the bus driver and did not accept Ms. McLean’s evidence. The

summary conviction appeal judge quoted from and referred to the transcript at trial in which the trial judge explained: So, when I look back at the evidence here now, and that we’re looking back at the day in question, I have to take into account the testimony of Mr. Legge who was the school bus driver, as well as Ms. Reid who was a passenger [in your car], and you, Ms. McLean, who was the driver of the car. Constable Thorne carried out his duty in accordance with the law and if there are reasonable and probable grounds, ... it’s his duty or certainly his option to lay a charge or issue the ticket.

He just followed along in the investigation. So, when I look at what Mr. Legge had to say about what happened that day, you know, he indicated to me that he was very deliberate about what he does; he’s the school bus driver; he’s concerned about the children; he checked his bus over; everything was working fine; that he had come to a stop; there were vehicles stopped in the approaching four – the four lane highway there, or four lane roadway; vehicles approaching had stopped and the car stopped behind him some distance back.

And that gave enough time for the vehicle you were driving and enough room for it to change lanes, pass on the inside, then pull out and pass the school bus. So if all the other vehicles were stopped, and he says he had his sign out and the lights were flashing, and that you had to pass, indeed, had to, really, your vehicle had to go underneath the stop sign that he had out and that the children had already gotten off the bus and were walking in front of it. He sounded his horn, as did other vehicles that were there that day. And I accept his testimony on that point because he’s being very deliberate about this.

You were operating your vehicle, and Ms. Reid was in with you, and you were heading to get ice cream. And I’ve come to the conclusion that you ... just didn’t see it there that day and you didn’t notice it. ... and I find, based on the evidence, that you didn’t, that you weren’t careful enough in watching out there, being on alert for the flashing lights ... which he says were in working order, and the stop sign. So because of all this, I have no choice but to find you guilty as charged. ... [ 7 ] The

summary conviction appeal judge explained that “what [the trial] judge found as a fact was that traffic had stopped all around his bus to allow the children to alight and cross the street, and that you [Ms. McLean] didn’t [stop]”. In response to Ms. McLean’s question, the judge said: It is not a question of two [witnesses] versus one. It is a question of who the judge believes and in this case the judge did not believe you or your witness. [ 8 ] The judge emphasized that Ms. McLean had to show that the trial judge had made a mistake in law.

He found that she did not satisfy that requirement because her only challenge to the trial judge’s decision amounted to challenging his findings of fact. [ 9 ] A review of the record and the submissions of Ms. McLean and Crown counsel leads to the conclusion that none of the requirements for leave to appeal is met in this case. Ms. McLean’s appeal does not raise a question of law. On that basis alone, leave to appeal would be denied.

Further the appeal has no reasonable possibility of success; neither does it raise a question of law that has significance to the administration of justice. [ 10 ] In the result, at the hearing, I refused to grant the leave required to permit Ms. McLean to proceed with the appeal. Application dismissed. Leave to appeal denied.