R. v. Smith, 2012 NLCA 54

Date: 20120816 Docket: 12/53 Citation: R. v. Smith , 2012 NLCA 54 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: GREGORY BROCK SMITH APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Harrington J.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (General), 201101G5104 Applications Heard: August 15, 2012 Decision Rendered: August 16, 2012 Reasons for Decision by Harrington J.A. Counsel for the Appellant: Self-represented Counsel for the Respondent: Stephen Dawson Harrington J.A.:

[ 1 ] This appeal arises from a decision of the

summary conviction appeal court upholding one of two convictions by the Provincial Court of the appellant under

section 264.1(1) (

a) of the Criminal Code for uttering threats to kill his brother in a telephone conversation with his mother while he was incarcerated at Her Majesty’s Penitentiary. The appellant makes two applications, the first to extend the time for the filing of an application for leave to appeal and the second seeking leave to appeal. At the hearing, Crown counsel did not oppose the granting of an extension of time for filing the notice of appeal.

In the circumstances, the time for filing is extended to the date on which the appellant deposited his application for leave to appeal in the Registry. [ 2 ] The grounds of appeal focus on the credibility of the appellant’s mother, who testified at trial that on two occasions during telephone conversations initiated by her son from Her Majesty’s Penitentiary, he made statements confirming his intent to kill or inflict bodily harm on his brother when he was released from custody.

His motive was said to be previous false statements by his brother which contributed to his incarceration. [ 3 ] The Crown submits that all of the grounds of appeal relate to issues of credibility which were decided by the trial judge and do not relate to questions of law. The challenge to the credibility of the appellant’s mother is based on (

i) her alleged impaired hearing which requires the use of hearing aids; (ii) her treatment for depression with heavy medication (which was not addressed at trial by the defence); (iii) his belief that phone calls at the penitentiary are recorded and the fact that no recordings of the phone calls were tendered at trial; (iv) the time delay in his mother’s reporting of the phone calls to the police after they occurred; and (

v) his testimony at trial denying the making of threats which he believes ought to have been accepted over that of his mother. [ 4 ] Crown counsel submits that the finding by the trial judge that the mother’s testimony was credible and reliable was upheld by the

summary conviction appeal court justice. He affirmed the appellant’s conviction on Count #1 having been satisfied that the following words were spoken to his mother by telephone: Mother: “You’re telling your mother you’re gonna kill your little brother”. Appellant: “Yes I am”. [ 5 ] The

summary conviction appeal court entered an acquittal with respect to Count #2 on the basis that the actual words which he accepted as having been spoken by the appellant to his mother carried “such a degree of ambivalence” as to raise reasonable doubt on an objective basis as to whether an intention to inflict harm was actually formed by the appellant. In that respect, the

summary conviction appeal justice made no adverse finding that questioned the credibility of the appellant’s mother as to the actual words spoken by her son on both occasions. [ 6 ] The right of appeal from a decision of the

summary conviction appeal court is discussed by Welsh J.A. in R. v. Mahoney , 2011 NLCA 71 , at para. 5 as follows: …

Section 839 of the Criminal Code applies to appeals to this Court. That

section requires two conditions to be satisfied: first, leave of the Court must be obtained; and, second, the appeal is restricted to “any ground that involves a question of law alone”. In determining whether leave to appeal should be granted, the test to be applied is set out in R. v. Newfoundland Recycling Ltd. , 2009 NLCA 28 , 284 Nfld. & P.E.I.R. 153: [9] [T]hus, 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”. [ 7 ] The record of the trial clearly indicates that the appellant’s mother was found to be credible and her evidence to be sound and reliable. This was affirmed by the

summary conviction appeal court to the extent that her evidence was such that it was capable of establishing the required elements of a charge of uttering of threats on Count #1 of the Information. [ 8 ] Essentially, the appellant is asking this Court to reconsider factual matters, relating to his mother and the circumstances of her telephone conversation with the appellant thus re-weighing her credibility. He seeks a different conclusion than those reached by the trial judge and the

summary conviction appeal court judge by deciding that, in law, the elements of the offence were not established regarding Count #1 of the Information. Subsection 839(1) of the Criminal Code limits further appeal to this Court from the

summary conviction appeal court to questions of law alone. It is patently obvious that the appellant’s proposed appeal does not raise a question of law alone. [ 9 ] As a matter of procedure, Crown counsel inquired as to whether it was necessary for a three judge panel of this Court to consider the application for leave to appeal by the appellant. The issue is specifically addressed in section 839(1) of the Criminal Code which provides: … an appeal to the court of appeal, as defined by

section 673 may, with leave of that court or a judge thereof, be taken on any ground that involves a question of law … . The current application for leave to appeal may be heard by a single judge of this Court. [ 10 ] In

summary, I find that the notice of appeal does not set out grounds that relate to a question of law alone. In that circumstance

it is not necessary to consider whether the appeal would have a reasonable possibility of success. The extension of time for filing is granted and the application for leave to appeal is denied. _________________________ M.F. Harrington J.A.