R. v. Oliver, 2011 MBCA 12

Citation: R. v. Oliver, 2011 MBCA 12 Date: 20110203 Docket: AR 10-30-07456 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: ) B. OliverHER MAJESTY THE QUEEN ) on his own behalf ) (Respondent) Respondent ) C. A. Vanderhooft ) for the Respondent- and - ) ) Chambers motions heard:BRYAN OLIVER ) January 20, 2011 ) ) Decision pronounced: (Accused) (Appellant) Applicant ) February 3, 2011 FREEDMAN J.A. 1 The applicant seeks leave to appeal a decision of a

summary conviction appeal judge who dismissed an appeal of adecision by a justice of the peace convicting the applicant of The Highway Traffic Act, C.C.S.M., c. H60 (the HTA) offence of failing towear a seat belt while driving (s. 186(3)). 2 The justice of the peace had rejected the applicant’s argument that the exemption in s. 186(5)(

d) was applicable: Wearing seat belts not required 186(5) Subsections (3) and (4) do not apply to a person . . . . . (

d) while he is engaged in work which requires him to alight from and re-enter the motor vehicle at frequent intervals and who whileengaged in the work does not drive at a speed exceeding 40 kilometres per hour; …. 3 The justice of the peace accepted the evidence of the RCMP constable that the applicant was travelling at highway speeds,in excess of 40 kilometres per hour.

There was no dispute that the applicant was not wearing his seat belt. 4 On appeal, the judge found no reason on the record to disturb the finding of the justice of the peace. 5 The scope for leave being granted is narrow, as the policy of the law is to discourage second-level appeals. See R. v. Denys(C.D.), 2009 MBCA 39, 240 Man.R. (2d) 13; R. v. R. (R. ), 2008 ONCA 497, 234 C.C.C. (3d) 463; and R. v. Wright (K.S.), 2010 MBCA95 (at paras. 2-3): The test to be met when seeking leave to appeal from a

summary conviction appeal is a stringent one as set out by Steel J.A. in the recentdecision of R. v. McCorriston (G.J.), 2010 MBCA 3, 251 Man.R. (2d) 106. She wrote (at para. 16): The criteria to be met before leave to appeal is granted are well settled and set out in s. 839 of the Criminal Code and in the cases of R.v. Schalla (K.T.) (2007), 2007 MBCA 104 , 220 Man.R. (2d) 69; 407 W.A.C. 69; 2007 MBCA 104, at para. 1, and R. v.Langlois (D.J.) (2008), 2008 MBCA 72 , 228 Man.R. (2d) 256; 427 W.A.C. 256; 2008 MBCA 72. They are as follows:

(1) Any ground of appeal must involve a question of law alone.

(2) Even if a question of law does arise, leave should only be granted if the matter raises an arguable case of substance.

(3) The arguable case must be of sufficient importance to merit the attention of the full court. Since the case has already been reviewedby a judge of the Court of Queen's Bench, which is the primary appellate court to review such matters, there should be a compellingreason to allow this second level of appeal. One compelling reason would be that the issue raises matters that are of significance to theadministration of justice or the development of the law beyond this case. See R. v. Denys (C.D.) (2009), 2009 MBCA 39 , 240Man.R. (2d) 13; 456 W.A.C. 13; 2009 MBCA 39.

The test for leave to be granted was also considered by Doherty J.A. in R. v. R. (R.), 2008 ONCA 497, 234 C.C.C. (3d) 463, where hewrote (at para. 24): In addressing the scope of appellate review contemplated by s. 839(1), three aspects of that provision deserve emphasis. First, the appealis not a second appeal from the trial decision; rather, it is an appeal from the decision of the Superior Court judge. Second, the appeal islimited to questions of law alone.

Like the Supreme Court of Canada on indictable appeals brought under the Criminal Code provisions,this court cannot revisit factual findings or correct errors of mixed fact and law. Third, even if the applicant raises a question of lawarising out of the decision of the Superior Court judge, the applicant must still convince this court (or a judge of this court) that leave toappeal should be granted on that question of law. Not all questions of law merit a second appeal. 6 A review of the evidence satisfies me that there is no compelling reason to allow a second-level appeal.

There wasevidence showing the speed of the applicant, taking him outside the statutory exemption. The justice of the peace was, as the judgefound, entitled to accept the evidence. On that basis, I can see no arguable case of substance warranting the attention of the full court. 7 The application for leave is denied. J.A.