R. v. M. (R.W.), 2011 MBCA 74

Citation: R. v. M. (R.W.), 2011 MBCA 74 Date: 20110902 Docket: AR 11-30-07562 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : HER MAJESTY THE QUEEN ) A. Y. Kotler ) for the Applicant (Respondent) Applicant ) ) J. J. Gindin ) for the Respondent - and - ) ) Chambers motion heard: ) June 30, 2011 M. (R.W.) ) ) Decision pronounced: (Accused) (Appellant) Respondent ) September 2, 2011 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(s) (see s. 486.4 of the Criminal Code ).

FREEDMAN J.A. 1 Pursuant to s. 839(1) of the Criminal Code , the Crown seeks leave to appeal a decision of a judge of the Court of Queen’s Bench, sitting as a

summary conviction appeal judge (the appeal judge). A Provincial Court judge (the sentencing judge) had imposed an 18-month jail sentence (and two years’ supervised probation) on the respondent following his guilty plea to a charge of sexual assault. On appeal, the appeal judge substituted a conditional sentence for the jail sentence.

The Crown asserts that he erred in law in so doing. 2 The Crown argues that the appeal judge misunderstood the reasons of the sentencing judge, since he said that she (the sentencing judge) had held that a conditional sentence was not available in this case, when the record discloses that she clearly knew and said that it was available, but chose to impose jail instead. The Crown also argues that the appeal judge erred in not showing deference to the decision of the sentencing judge, and that he misconstrued the test for the imposition of a conditional sentence.

Facts 3 In the early morning of April 23, 2009, the 17-year-old victim was sleeping, fully clothed, at her cousin’s apartment in Brandon. The 26-year-old respondent was there, as he was in a relationship with the cousin and had three children with her. He was highly intoxicated (the victim was sober). She was awakened by the respondent, to find her pants and underwear pulled down and the respondent having intercourse with her. She pushed him away. 4 She disclosed what happened to her family and in due course the respondent was arrested and charged.

He entered a guilty plea to the one charge. 5 A pre-sentence report was largely positive. The respondent had no record, a supportive family and had completed university. He was remorseful and a low risk to reoffend. He had a history of excessive drinking. The Sentencing Hearing 6 When the matter came on for sentencing, the Crown advised the sentencing judge that it had elected to proceed

summarily. The Crown and the respondent presented the sentencing judge with a joint recommendation for an 18-month sentence. The only area of disagreement was where the sentence would be served. The Crown sought a jail sentence, while the respondent sought a conditional sentence to be served in the community. That was the issue between the parties. 7 In its submission the Crown advised that a conditional sentence was available in this situation since it had proceeded summarily. The Crown mentioned the discussions between counsel, which contemplated the respondent’s ability to argue for a conditional sentence.

It then presented its arguments for the imposition of a jail sentence of 18 months’ duration, which it said was the maximum permissible on a

summary conviction offence. 8 The respondent’s counsel then submitted his arguments for an 18-month sentence to be served conditionally in the community, expressly pointing out that a conditional sentence “is available here.” His counsel emphasized the suitability of the respondent, as an individual, for a conditional sentence. He cited a number of sexual assault cases where conditional sentences had been imposed.

His position was that “there are no offences that are excluded from the conditional sentence order regime as long as the prerequisites are met.” The Sentencing Judge’s Reasons 9 Once the sentencing judge decided that the 18-month sentence was within the appropriate range for the offence and the offender, the next question, which, as noted, was the only issue between the Crown and the respondent, was where the sentence would be served. It is clear on the face of the sentencing judge’s reasons that she knew that a conditional sentence was available here. For example: ….

The Crown proceeded summarily and counsel are jointly recommending a sentence of 18 months incarceration. The Crown says that sentence should be served in a custodial setting. Mr. [M.] asks the court to allow him to serve his sentence in the community by way of conditional sentence order. …. . . . . . It is also clear, from the authorities filed, that support can be found generally for both the imposition and the rejection of a conditional sentence order in a case such as this one. ….

Having decided that 18 months is an appropriate sentence, the court is left to determine whether to allow the sentence to be served in the community. I can dispense easily with two of the pre-requisites. First of all, the sentence is more than probation and less than the penitentiary. It is custodial and it is less than two years.

Based on all of the information before the court, most notably the pre-sentence report and the psychiatric assessment, I am satisfied that the accused[’s] risk can be managed in the community without unduly endangering the public’s safety. 10 She described the “real issue” as whether the imposition of a conditional sentence would be consistent with the fundamental principles of sentencing, and after articulating several concerns she concluded that the relevant factors favoured a sentence of “real jail.” In so doing, she reiterated that the respondent was not a “big risk” to the community.

The Appeal Hearing 11 The respondent argued before the appeal judge that the sentencing judge erred in overemphasizing certain factors and underemphasizing others. He said she erred in concluding that a conditional sentence was not appropriate. He argued that she “gave the impression that it’s a sexual assault, the victim is under 18, there is no other choice she has [than] to impose a real jail sentence,” and that was an error. He also argued that he had told the sentencing judge that she could consider community service work as part of a conditional sentence order.

He stressed that there could be appropriate conditions attached to a probation order to emphasize denunciation and deterrence. 12 The Crown argued before the appeal judge that the sentencing judge’s reasons showed a thorough and careful consideration of all factors. During the Crown’s submission the following exchange occurred: THE COURT: Well but where does it say that because of that [i.e., the nature of the offence] conditional sentences aren’t available? MR. RAINNIE: She doesn’t say that. THE COURT: She does say that.

MR. RAINNIE: She says … THE COURT: She says that’s why she’s composing [ sic ] jail. MR. RAINNIE: She says … THE COURT: She says this is a prime candidate for a conditional sentence. MR. RAINNIE: She says, with all due respect My Lord, on page 5 at line 13 of her reasons for decision, the real issue before this court is whether imposition of a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. THE COURT: Right. MR.

RAINNIE: And then continues indicating, it has also been recognized that there are certain circumstances in which the need for denunciation and or deterrence is so pressing that incarceration would be the only suitable way in which to express society’s condemnation of the conduct. THE COURT: Right. . . . . . MR. RAINNIE: But it is a serious sexual assault. THE COURT: Absolutely. MR. RAINNIE: And uhmm … THE COURT: For which conditional sentences are available. MR. RAINNIE: Well and on the facts of … THE COURT: Are they not? MR. RAINNIE: Conditional sentences are available on the facts of this case.

THE COURT: Right. . . . . .

THE COURT: But I’m saying if you take the facts of this case, a conditional sentence is available. MR. RAINNIE: A conditional sentence is potentially available. THE COURT: It is available, we have facts where conditional sentences in this type of case have been granted. MR. RAINNIE: And there are cases where they have not. THE COURT: Right. MR. RAINNIE: And Your Lordship, unless you can find an error in sentencing principle, that’s substituting … THE COURT: She found on the facts of this case that it’s not available because she did say, this was a prime candidate. MR.

RAINNIE: She said, yes on the facts of this case it was not. THE COURT: So why isn’t it available, why not? MR. RAINNIE: Well she expresses that. THE COURT: Yeah because it’s a sexual assault. MR. RAINNIE: No she doesn’t say that. THE COURT: She does. . . . . . THE COURT: …. I guess the problem I have, I’m sitting here reading her decision and this accused has so many mitigating factors, so many reasons why he’s a prime candidate for conditional sentence and he’s not getting one because of the charge he was charged with. MR.

RAINNIE: I don’t read her decision as saying that it’s a sexual assault and that is a serious offence and therefore he has to serve a real jail sentence. THE COURT: Well then what is she saying? MR. RAINNIE: She is saying that on the facts of this case … THE COURT: For which we know a conditional sentence is available.

MR. RAINNIE: Yes. THE COURT: I am not going to give it because of the facts of this case. MR. RAINNIE: And she says, yes on the facts of this case … THE COURT: Right. MR. RAINNIE: And the need to - if I can just have one moment here. THE COURT: But we’ve got all kinds of cases with worse facts than this where conditional sentences have been granted. So why not for this accused? . . . . . THE COURT: We are dealing with an offence for which a conditional sentence is available, right? MR. RAINNIE: Yes, today we are. . . . . . THE COURT: ….

But here I have a case where, I don’t know, who, tell me someone, tell me someone who would be a better candidate for a conditional sentence than this accused. We have a psychiatrist saying he’s a low risk to reoffend. We have probation saying he’s a low risk to reoffend. We have no question he’s remorseful. We have someone who wishes to meet with the victim if she wants to meet because he’s prepared to apologize to her. He has worked hard through his life to be a law abiding citizen and has done momentous things. Like I don’t know who else there is who would qualify for a conditional sentence.

The only reason he’s not getting one is the judge said this is not an appropriate case, based on the facts. The Appeal Judge’s Reasons 13 A few minutes after hearing the submissions the appeal judge gave his decision, the pertinent parts of which are: This is an appeal from a very competent provincial judge in this area … who upon a guilty plea from this accused complied with a request for an 18 month sentence but then found that a conditional sentence was not appropriate . … [T]he learned provincial judge did in fact give a well written decision denying a conditional sentence.

Sentencing is a discretionary order[;] a court should be very slow to intervene in a discretionary order. …. After considering the availability of a conditional sentence and the fact that this accused me[t] the first two criteria, firstly that a conditional sentence was available and that he would be a prime candidate. The learned provincial judge then went on to find that, based on the facts of the sexual assault, that it would be inappropriate to impose a conditional sentence and could not give the necessary emphasis to reinforce deterrence and denunciation with a conditional sentence. …. ….

There is no question that this is a serious sexual assault. …. I am mindful, as the Supreme Court has said that it is not the task of the [appellate] court to substitute its opinion as to an appropriate sentence to be assessed. Absent [an] error in principle [failure] to consider a relevant factor or an overemphasis of the appropriate factors. An [appellate] court should only intervene to vary a sentence imposed at trial if the sentence is [demonstrably] unfit.

… I find that she erred . Her decision is that based on the facts of the sexual assault on a sleeping victim, a conditional sentence , according to her, is not available and that is an error. …. But the law is clear and can’t be stated more times than it has been already. A conditional sentence is in fact a sentence of jail and it does in fact carry with it denunciation and deterrence. An issue that I think that was underemphasized and under considered is this particular accused. … I’ve had very few accused appear in front of me that are more likely and appropriate candidates for a conditional sentence . ….

The particular circumstances of this accused and the rehabilitation of this accused did not receive the appropriate emphasis in this particular sentence. And I am also not convinced that the sentencing principle that jail is a matter of last resort, receive[d] the appropriate consideration. [underlining added] Submissions on this Application 14 The Crown said that it was clear during the oral argument before the appeal judge that he believed the sentencing judge had said that a conditional sentence was not available for an offence such as the one before her (see para. 12 above).

It said that he suggested that where an offender was a good candidate for a conditional sentence, it was wrong not to impose one on the basis of the particular offence ( ibid .). It also said that the appeal judge seemed to think that so long as there was a worse offence for which a conditional sentence had been imposed, all other good candidates for such a sentence were entitled to receive them. 15 The Crown said that three questions of law alone were raised by this application, namely: 1.

Did the appeal judge err in finding that the sentencing judge had held that a conditional sentence was not available in the circumstances of this case? 2. Did the appeal judge err in failing to defer to the sentencing judge’s conclusion that a conditional sentence was not appropriate in the circumstances of this case? 3.

Did the appeal judge err in misconstruing the test for imposition of a conditional sentence? 16 The Crown said that the record disclosed that the appeal judge was plainly wrong in finding that the sentencing judge failed to appreciate that a conditional sentence was available, in suggesting that she had not taken into account the respondent’s prospects for rehabilitation, and in finding that she had failed to consider the principle that jail was a last resort.

He had badly mischaracterized her reasons, and based his decision on things she had not said, contrary to the direction from the Supreme Court of Canada in R. v. O’Brien , 2011 SCC 29 at para. 17 . He should not have disregarded her reasoning simply because he disagreed with her conclusion. 17 Moreover, his reasons demonstrated a failure on his part to give full consideration not only to the circumstances of the offender, but also to the facts of the offence, which were very serious, even if not the most egregious (see R. v. Proulx , 2000 SCC 5 at para. 83 , [2000] 1 S.C.R. 61). See also R. v.

Wells , 2000 SCC 10 , [2000] 1 S.C.R. 207, where, on facts similar to the present case, although somewhat less serious, the Supreme Court sustained the imposition of a real jail sentence, concluding that where denunciation and deterrence are paramount, a conditional sentence may be insufficient even where the offender is a good candidate for rehabilitation. 18 In other words, said the Crown, the charge under consideration, and the facts of the offence, were sufficient to warrant the imposition of a jail sentence, and the appeal judge erred in concluding otherwise.

His failure to defer to the sentencing judge’s analysis contravened the applicable principles (see, e.g., R. v. L.M. , 2008 SCC 31 at para. 15 , [2008] 2 S.C.R. 163 ) . The fact that he would have placed more emphasis than the sentencing judge appeared to have done on prospects for rehabilitation was not a legitimate basis for intervention. 19 The Crown concluded its written submission on this application as follows: Provincial Court Judges like the Learned Sentencing Judge hear the overwhelming majority of guilty pleas like this one, particularly in small or rural communities.

It is important that they receive the deference necessary to carry out their function. Alternatively, if the Learned [Appeal] Judge was correct, it is important they receive direction as to how to properly exercise their discretion. This Honourable Court should grant leave. 20 The respondent argued that insufficient grounds had been advanced by the Crown to warrant a second-level appeal, and he relied on the decision of the Ontario Court of Appeal in R. v. R. (R.) , 2008 ONCA 497 , 90 O.R. (3d) 641, and on decisions of this court to the same effect (see, e.g., R. v.

Merasty (K.) , 2010 MBCA 50 , 258 Man.R. (2d) 1; R. v. Oliver , 2011 MBCA 12 ; and R. v. Denys (C.D.) , 2009 MBCA 39 , 240 Man.R. (2d) 13). These cases showed, he said, that a second appeal is to be limited to cases where the applicant demonstrates an exceptional circumstance justifying a further appeal, or that the questions of law raised have not been decided by an appeal court, and this is not such a case. 21 In any case, he argued, no error in law was made by the appeal judge. He was well aware of the need to show deference and of the limited scope for appellate intervention.

Deference was not required, however, since the sentencing judge herself had erred since she refused to impose a conditional sentence based solely on the nature of the offence, even though all prerequisites necessary for a conditional sentence had been satisfied. 22 The appeal judge recognized, said the respondent, that the reasoning underlying the sentencing judge’s decision was

flawed, since it was based on the premise that denunciation and deterrence could not be achieved except by a real jail term. That was alegal error, as Proulx and other cases have clearly explained. Analysis and Decision 1. Standard of Review 23 In R. v. McCorriston (G.J.), 2010 MBCA 3, 251 Man.R. (2d) 106, my colleague Steel J.A. set out succinctly the standard ofreview to be applied in a case like this (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; 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. 24 This last criterion was explained in detail by Doherty J.A. in R. (R.) (at paras. 20, 24-27): In indictable proceedings, access to the second level of appeal, the Supreme Court of Canada, is very limited. Most appeals to theSupreme Court of Canada in indictable proceedings are governed by ss. 691-93 of the Criminal Code. Except in very limitedcircumstances (where a judge of the Court of Appeal has dissented on a question of law), leave to appeal must be obtained from theSupreme Court.

As well, that court’s jurisdiction is limited to questions of law. The Criminal Code does not set out the criteriagoverning the granting of leave to appeal. In practice, the court grants leave only where the proposed questions of law have a significantpotential impact on the administration of justice beyond the specifics of the case. …. 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. These three features of s. 839, all of which are found in the corresponding

section dealing with leave to appeal to the Supreme Court ofCanada in indictable matters, make it clear to me that a second appeal in

summary conviction proceedings should be the exception andnot the rule. There is no sensible criminal law policy that would justify more extensive rights of appeal in relatively minor criminal matters than thoseavailable in the most serious criminal cases. As the relevant provisions of the Criminal Code indicate, this court’s role in the appellateprocess in

summary conviction proceedings is similar to the role played by the Supreme Court of Canada in appellate proceedings inindictable matters. Both the parallel statutory provisions and policy dictate that this court should, in exercising its discretion to grant asecond appeal in a

summary conviction proceeding, adopt a similar approach to that taken by the Supreme Court of Canada onapplications for leave to appeal in indictable offences. Furthermore,

summary proceedings are intended to be expeditious. Routinelygranting a second full appeal on the merits from the trial decision hardly furthers that goal. The requirement that the applicant obtain leave to appeal in s. 839 provides the mechanism whereby this court can control its

summaryconviction appeal docket. Access to this court for a second appeal should be limited to those cases in which the applicant candemonstrate some exceptional circumstance justifying a further appeal. [underlining added] 25 That explanation has been adopted by this court (see Merasty, McCorriston and Denys, among other cases). 26 Thus, the standard which must be met by the applicant seeking a second appeal is quite high. Not only must the applicantdemonstrate a likely error of law by the first-level appeal judge, but they must also show that there is something exceptional about thecase warranting a second appeal hearing.

2. Has the Crown advanced an arguable case that the Appeal Judge erred? 27 The reasons of the appeal judge must be read in context, taking into account the submissions made to him and the exchangewith counsel during those submissions.

Reading the reasons in context, I conclude that, regarding its proposed first question of law, theCrown has shown an arguable case that the appeal judge erred in his understanding of the sentencing judge’s reasons. 28 If his reasons are read on their own, and not in the context mentioned, it would be fair to conclude that the appeal judgesimply misspoke when he said (see para. 13 above) that the sentencing judge had decided that, based on the facts a conditional sentencewas not “available,” and that what he should be understood to have meant was that she had decided it was not “appropriate.” In otherparts of his reasons it seems clear that he understood the sentencing judge knew that a conditional sentence was available, especiallysince he was aware that, once the 18-month term had been accepted by her, whether to impose a conditional sentence or jail had been thesole issue before her.

He said that she had “consider[ed] the availability of a conditional sentence … and that he would be a primecandidate,” but that she found that “based on the facts … it would be inappropriate to impose a conditional sentence.” Read in the lightof those comments, his subsequent statement that she had found that based on the facts of the offence a conditional sentence was notavailable could be seen to be simply an incorrect choice of a word. 29 Read in context of the exchange quoted in detail at para. 12 above, however, it arguably becomes less clear that the appealjudge accepted that the sentencing judge knew of the availability of a conditional sentence and made a deliberate choice not to imposeone.

I need not repeat the pertinent parts of the exchange. It is enough for present purposes to say that the Crown has made out anarguable case that the appeal judge erred when he held that the sentencing judge had found that a conditional sentence was not availablein this case because of the facts of the offence. A misinterpretation of a trial judge’s reasons on an issue of law is itself an error of law(see R. v. McCullagh (1990), (ON CA), 53 C.C.C. (3d) 130 (Ont.

C.A.)). 30 On the second proposed question, the Crown argued that the appeal judge’s failure to defer to the sentencing judge’sdecision was an error of law alone. I do not agree. His reasons show an awareness of the principles of deference applicable to anappellate tribunal. He was not simply substituting his judgment for hers. His non-deference was not based solely on amisunderstanding (if, indeed, there was one) of her reasons, which would then have been an error of law.

Rather, his reasons disclosethat he found error in principle in the sentencing judge’s assessment of the relevant factors, including the emphasis to be placed on them,and mainly for that reason he did not defer to her decision. Appellate judges who find that a sentencing judge underemphasized arelevant factor are entitled to intervene (see R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 90).

Assuming that hisnon-deference was an error, in my view it was not an error of law alone. 31 Finally, on the third proposed question, I do not agree with the Crown that the appeal judge’s reasons disclose amisunderstanding of the test for the imposition of a conditional sentence. His reasons show that he was aware of the applicableprinciples, and even if they were not as fully articulated as they might have been, I would find that it was not necessary for thisexperienced judge to have done so. 3.

Should There be a Second Appeal? 32 Assuming that the appeal judge did err in misunderstanding the sentencing judge’s reasons, the Crown must stilldemonstrate something exceptional about this case to warrant the matter being sent for a full, second appeal. As Steel J.A. said inMcCorriston (see para. 23 above) (at para. 16): …. Since the case has already been reviewed by a judge of the Court of Queen’s Bench, which is the primary appellate court to reviewsuch matters, there should be a compelling reason to allow this second level of appeal.

One compelling reason would be that the issueraises matters that are of significance to the administration of justice or the development of the law beyond this case. .... 33 See also the comments of my colleague Chartier J.A. in R. v. Forsythe, 2009 MBCA 62, 79 M.V.R. (5th) 15 (at paras. 3, 6-8): … [A]n application for leave under s. 839 should be granted sparingly and with good reason. This case has already been reviewed by ajudge of the Court of Queen’s Bench, which is the primary appellate court to review such matters (see R. v. Suberu, 2007 ONCA 60, 85O.R. (3d) 127 (Ont. C.A.), and R. v.

Langlois, 2008 MBCA 72, 228 Man.R. (2d) 256 (Man. C.A. [In Chambers])). Here, the granting ofleave would bring about a second-level appeal. As was recently stated by Freedman J.A. in R. v. Denys, 2009 MBCA 39 (Man. C.A.[In Chambers]), when considering a s. 839 chambers leave application, “[t]he policy of the law is clearly to discourage second-levelappeals in the absence of some compelling reason to conclude otherwise” (at para. 32). ....

On the first question, although the issue (whether the appeal judge correctly applied the principles related to the legal concept ofpalpable and overriding error) is a question of law alone (see Denys), I remain unconvinced, in the particular circumstances of this case,that it warrants the attention of a full panel of this court. On the third question, disregarding the evidence or failing to appreciate the evidence will amount to an error in law alone only if that“failure is based on a misapprehension of some legal principle” (see R. v. Morin, (SCC), [1992] 3 S.C.R. 286 (S.C.C.),at 295).

Again, although the issue raised may be a question of law alone, and while there may be arguable merit to the Crown’scontention, I have not been persuaded that this question in this case is of sufficient importance to grant leave.

Unlike the second question, these other two questions do not raise matters that are significant to the administration of justice beyond thiscase. The Crown has been unable to demonstrate that there exists compelling reasons to allow a second-level appeal on the first andthird questions. 34 I would add that “exceptional,” or “compelling,” in the present context, should focus more on the significance of the issuethan its uniqueness.

That is my view of the meaning of the comment by Doherty J.A. in R. (R.) and other judges who have written onthis issue. 35 In R. (R.), Doherty J.A. noted that the authorities (at para. 31): ... [C]orrectly focus on the broader potential significance of the question of law on which leave is sought and the apparent merits (or lackthereof) of the proposed appeal as central questions on the application for leave to appeal. I also find helpful the observation of RussellJ.A. in R. v. Chaluk, 1998 ABCA 253 , [1998] A.J. No. 862, 237 A.R. 366 (C.A.), at para. 7:

Section 839 of the Criminal Code confines leave to issues of law alone. Courts have further confined leave to matters of publicimportance. This public aspect underscores both the insufficiency of mere error, as well as the need to demonstrate the potential forsignificant impact on the administration of justice. Well settled principles of law do not present that sort of further potential.

But it isalso of public importance that injustices flowing from clear errors of law not be condoned. .... [underlining added] 36 He continued, with comments that, to an extent, have particular relevance to the present application for leave (at paras. 32-34): Russell J.A. makes the important point that the power to grant leave to appeal in

summary conviction proceedings is broad enough toreach two quite different categories of cases. Leave to appeal may be granted where the merits of the proposed question of law arearguable, even if not strong, and the proposed question of law has significance to the administration of justice beyond the four corners ofthe case. Leave to appeal may also be granted where there appears to be a “clear” error even if it cannot be said that the error hassignificance to the administration of justice beyond the specific case.

The public interest in granting leave to appeal in the first category of case described above is obvious. It is this court’s function, subjectof course to decisions of the Supreme Court of Canada, to settle questions of law of general application. In doing so, the court performs avaluable function for the administration of justice beyond its error correcting function in the individual case. The value to the administration of justice in granting leave to appeal in the second category of case described above is also clear.

Summary proceedings can result in criminal convictions that carry strong social stigma and serious penalties, including significantincarceration.

The interests of justice require that a person who stands convicted of a serious criminal offence and has perhaps lost his orher liberty should have access to this court to review the merits of that conviction if he or she can show a strong likelihood that theconviction was sustained at the first level of appeal because of an error in law. [underlining added] 37 The proposed question of law, in my opinion, has no significance beyond the present case, thus it does not fall within thefirst category referred to above.

As for the second category, I am satisfied that, while the Crown has shown an arguable case, it is nostronger than that, and reading the appeal judge’s reasons in their entirety, it is not clear and obvious that there is error.

Moreover, theconviction is not at issue in light of the guilty plea and I see no “value to the administration of justice” in granting the Crown’sapplication. 38 The Crown argued (see para. 19 above) that clear direction should be given to sentencing judges, and that, if the appealjudge was correct, it is important that sentencing judges receive direction on how to exercise their discretion. Given my view that theappeal judge may have erred, my denial of leave should not be taken as a conclusion that the sentencing judge did not exercise herdiscretion on proper grounds.

I see no need for this court to reiterate in the context of the present case, for the benefit of any sentencingjudge, how sentencing principles are to be applied. 39 As well, the law regarding deference by an appellate tribunal to the sentencing decision of a judge was understood by theappeal judge, according to his reasons. That law has been clearly, and frequently, explained by appellate courts, and by the SupremeCourt, and I see no pressing need for a further articulation of the applicable principles. See, e.g., R. v.

Nasogaluak, 2010 SCC 6 at para.46, [2010] 1 S.C.R. 206. 40 After careful consideration, I have concluded that there is nothing about this case that meets the high standard warranting asecond appeal.

There is no compelling reason for this case to be heard on appeal again, nor do I see anything especially significant aboutit (apart from its obvious importance to the parties) or about the error that may have been made by the appeal judge. 41 While arguably the appeal judge erred in law by misunderstanding the reasons of the sentencing judge, and partially on thebasis of that misunderstanding imposed a sentence different than she had imposed, in my opinion that does not constitute an exceptionalcircumstance such as would justify a further appeal.

While in an ideal world all errors of law would be corrected by a further appeal

decision, as the reasons of Doherty J.A. make clear there are sound policy considerations militating against such further appeals, unless exceptional circumstances exist. I see no exceptional circumstances here. 42 For these reasons I would deny leave to appeal. J.A.