R. v. Brown, 2011 MBCA 63

Citation: R. v. Brown, 2011 MBCA 63 Date: 20110725 Docket: AR 11-30-07582 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) G. F. Wiebe HER MAJESTY THE QUEEN ) for the Applicant ) (Respondent) Respondent ) A. Y. Kotler ) for the Respondent - and - ) ) Chambers motion heard: MICHAEL BROWN ) July 21, 2011 ) ) Decision pronounced: (Accused)(Appellant) Applicant ) July 25, 2011 BEARD J.A. I. THE ISSUE 1 The accused has applied under s. 839(1) of the Criminal Code for leave to appeal and, if granted, to appeal the decision of a

summary conviction appeal judge dismissing his appeal from the decision of the judicial justice of the peace convicting him of speeding pursuant to s. 95(1) of The Highway Traffic Act , C.C.S.M., c. H60 ( The HTA ). Both the

summary conviction appeal and this request for leave to appeal relate only to conviction and not to sentence. 2 This appeal is unusual in that the accused admitted during his testimony before the judicial justice of the peace that he was driving 87 kilometres per hour in a 60 kilometres per hour zone and that he was speeding, and he has not resiled from that position. Further, in argument at the original trial, his counsel acknowledged that the accused had been speeding and she is not arguing any differently now. II.

THE FACTS 3 The accused, another driver and a police officer in an unmarked vehicle were all stopped at a red light on Grant Avenue, at about 11:00 p.m. The police officer testified that, when the light turned green, the two other vehicles took off at a high rate of speed. He followed and they quickly reached the speed of 110 kilometres per hour before the other driver accelerated ahead of the accused. The officer followed that car, which he clocked at 140 kilometres per hour before he pulled it over.

When the accused caught up, the officer pulled him over as well, and gave both drivers tickets for racing and speeding. 4 The accused denied that he was racing, testifying that he was talking on his cell phone at the red light and that he continued to do so after the light turned green and as he accelerated. When his call ended, he hung up and then noticed that he was going 87 kilometres per hour, whereupon he immediately slowed down. At that time, the car beside him accelerated and the police car, with its lights activated, followed.

The accused testified that he did not notice that the other driver was known to him as someone with whom he went to school and as having just been at the same hockey tryout with him until after the police stopped him. 5 The accused pled not guilty to both charges and, following a trial before a judicial justice of the peace, was convicted of both offences. He appealed his convictions by way of

summary conviction appeal. The

summary conviction appeal judge granted the appeal of the conviction for racing and ordered a new trial on that charge. That charge is not the subject of this appeal. The

summary conviction appeal judge dismissed the appeal from the conviction for speeding and upheld that conviction. It is that decision for which the accused is applying for leave to appeal. III. STANDARD OF REVIEW 6 The standard of review was recently set out by Freedman J.A. of this court in R. v. Oliver , 2011 MBCA 12 as follows (at para. 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 MBCA 95 (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 recent decision 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. 7 If the appeal raises a question of law arising out of the decision of the

summary conviction appeal judge that merits asecond appeal, then the standard of review would be that of correctness. IV.

POSITIONS OF THE PARTIES 8 The accused argued that the question of law to be determined is “whether a conviction appeal flows when anAccused admits to facts which constitute the elements of an offence and a Trial Judge convicts the Accused on much more serious facts,but fails to make credibility findings or give reasons for the findings of fact made.” His position is that this issue has generalsignificance to the administration of justice beyond this particular case. 9 He argued that the judicial justice of the peace convicted him of driving at a speed of over 100 kilometres per hour,while he admitted to driving at a speed of only 87 kilometres per hour.

While acknowledging that his liberty was not at stake, he arguedthat the implications resulting from the conviction were still significant because a finding that he was travelling at 50 or more kilometresover the speed limit will necessarily result in the loss of his licence. 10 The accused argued that the

summary conviction appeal judge erred in law in not applying the same reasoning to thespeeding appeal as he did to the racing appeal, wherein he found that the reasons of the judicial justice of the peace for preferring theevidence of the police officer over that of the accused were deficient and necessitated a new trial.

If he had applied that same reasoning,the accused argued, he would have granted the appeal on the speeding charge and overturned that conviction in the same way as he didon the racing charge. 11 The crown’s position is a follows: - that the actual speed at which the accused was travelling is not an element of the offence of speeding, as long as the crown canprove that the accused was exceeding the speed limit; therefore, by admitting that he was speeding, the accused has admitted to all of theessential elements of the offence, so there was no basis for an acquittal; and - the actual rate of speed is a factor that is relevant to sentencing, but the accused has not appealed his sentence, so, given theaccused’s admission that he was speeding, the rate of speed is not relevant to this appeal, which is from conviction only.

IV. THE LAW 12 Section 95(1) of The HTA states as follows: Speed limit in particular cases 95(1) Subject to subsections 98(1) to (5), no person shall drive a vehicle at a rate of speed greater than (a) 50 kilometres an hour within any restricted speed area if it and the maximum speed permissible therein are designated by signserected as herein required; or (

b) the maximum speed permissible at any other place as designated by signs erected as herein required or authorized; or

(c) 90 kilometres per hour in all places not mentioned in clauses (

a) or (b). 13 This offence section, by its wording, does not require proof of any particular rate of speed, only proof that the speed exceeded that permitted by law. 14 The issue of whether the actual speed is an essential element of the offence of speeding was recently considered by the Ontario Court of Appeal in York (Regional Municipality) v. Winlow , 2009 ONCA 643 , 265 O.A.C. 326 . The relevant legislation, being s. 128(1) of The Highway Traffic Act , R.S.O. 1990, c. H-8, states as follows: Rate of Speed 128(1) No person shall drive a motor vehicle at a rate of speed greater than, . . . . . (

d) the rate of speed prescribed for motor vehicles on a highway in accordance with subsection … 7; . . . . . 15 After stating that the first issue to be decided in the appeal was whether the particular rate of speed was an essential element of the offence of speeding, Laskin J.A., for the court, stated as follows ( Winlow at paras. 25-26 ): There appears to be a small debate among the justices of the peace and the Ontario Court of Justice judges over whether the particular rate of speed at which a defendant is charged with driving is an essential element of the offence of speeding or a particular relevant only to penalty.

In the vast majority of cases, justices of the peace and Ontario Court of Justice judges have concluded that the offence is speeding contrary to s. 128(1) of the HTA , and that the actual rate of speed matters only on penalty. A few cases, however – see, for example, R. v. Ali , [1993] O.J. No. 4675 (Ct. J.) – suggest that the particular rate of speed is an essential element of the offence and thus, if the certificate is amended, the defendant is facing a different offence. I agree with the majority.

The offence provision for speeding is s. 128(1) of the HTA : “no person shall drive a motor vehicle at a rate of speed greater than” the statutorily prescribed rate. The actual rate of speed is a particular relevant to penalty under s. 128(14) of the HTA , because the amount of the fine increases as the rate of speed over the speed limit increases. Thus, to obtain a higher fine in a case such as the present one, the prosecutor must seek an amendment, and the court must make a finding of fact on the actual rate of speed.

That fact must be proved beyond a reasonable doubt. 16 Thus, I am satisfied that the actual rate of speed of the vehicle is not an element of the offence of speeding under s. 95(1) of The HTA . While the crown must prove that the accused was exceeding the legal limit in order to obtain a conviction for speeding, the crown does not have to prove the actual rate of speed. The actual rate of speed may be a factor in sentencing and other penalties, but it is not relevant to the conviction. V.

DECISION 17 Given the accused’s admission that he was driving 87 kilometres per hour and that he was speeding, and given his lawyer’s acknowledgement in that regard, there is no merit to the appeal from the conviction for speeding, which is the only issue before the court. As a result, I can see no arguable case of substance warranting the attention of the full court. 18 The application for leave is, therefore, denied. J.A.