R. v. Hyra (J.), 2013 MBCA 59

Citation: R. v. Hyra (J.), 2013 MBCA 59 Date: 20130620 Docket: AR 12-30-07794 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton B E T W E E N: HER MAJESTY THE QUEEN ) J. Hyra ) on his own behalf Respondent ) ) N. P.

Steen ) for the Respondent- and - ) ) Appeal heard and ) Decision pronounced:JASON HYRA ) June 18, 2013 ) (Accused) Appellant ) Written reasons: ) June 20, 2013 CHARTIER C.J.M. [1] The accused appeals the decision of the motions judge granting the Crown’s motion for judicial review of thecommittal decision of the preliminary inquiry judge. The preliminary inquiry judge had discharged the accused of a criminal harassmentcharge and instead ordered that he stand trial on a charge of harassing telephone calls.

The motions judge accepted the Crown’sargument that the preliminary inquiry judge had exceeded her jurisdiction by failing to commit the accused on the criminal harassmentcharge. He quashed the committal on the harassing telephone calls offence and ordered the accused to stand trial on the criminalharassment charge. [2] In addition to appealing the decision of the motions judge, the accused has also moved to introduce fresh evidence atthe appeal hearing.

This evidence appears to assist the accused in his defence of a criminal harassment charge. [3] After hearing the matter, we denied the fresh evidence application and dismissed the appeal with brief reasons tofollow. These are those reasons. [4] We can quickly address the fresh evidence motion. This is an appeal from a decision of a motions judge on a judicialreview of a preliminary inquiry judge’s committal decision on a harassment charge. It is not an appeal from a conviction on that charge. Appellate courts have long frowned upon attempts to bifurcate criminal proceedings (see R. v.

Deschamps (M.B.), 2003 MBCA 116 atparas. 27-29, 177 Man.R. (2d) 301). The reason for this policy is the danger of delay in the trial process. [5] The accused is asking us to consider potential trial evidence before the trial is heard. The proper forum to considerthat evidence will be at his trial; not here, not now. We are all of the view that the interests of justice will not be served by the admissionof this evidence. We will leave for another day the argument presented by the Crown that fresh evidence motions on appeal can only beconsidered after a trial (see R. v.

S. (G.) (1991), (ON SC), 5 O.R. (3d) 97 at 110 (C.A.)). [6] On the appeal proper, the accused has raised a number of grounds, but the critical issue is whether the motions judgeexceeded his jurisdiction by ordering the accused to stand trial on the criminal harassment charge. The accused had been discharged onthat charge because the preliminary inquiry judge had found that the Crown had failed to adduce any evidence of one of the essentialelements of the offence, namely that the complainant was reasonably fearful of her safety as a result of the accused’s conduct.

[ 7 ] The standard of review to be applied to the motions judge’s decision can succinctly be stated as follows: if the correct standard was selected and if it was properly applied, then great deference will be owed to the decision of the motions judge (see R. v. Eckstein (S.M.) , 2012 MBCA 96 at paras. 5-16 , 288 Man.R. (2d) 26). [ 8 ] In his reasons, the motions judge correctly stated the legal principles to be applied on a judicial review of an order of committal. He also selected the proper standard of review and, in our view, correctly applied it.

He examined the totality of the evidence in relation to the reasonableness of the fear the complainant may have for her safety and concluded that there was sufficient evidence to commit on the criminal harassment charge. [ 9 ] Critical to his decision was his finding that the preliminary inquiry judge had overlooked some of the evidence when she said that there was “certainly evidence that she was stressed and upset by the accused’s repeated contact.” We agree with the motions judge that there was certainly more evidence in relation to the complainant’s fear for her safety.

The motions judge correctly pointed out that the evidence also shows that the complainant stated she was “very afraid,” “scared,” “threatened” and “very, very frightened” (at para. 21). [ 10 ] The evidentiary threshold to commit an accused to stand trial is very low; there need only be some or a scintilla of evidence on each essential element of the offence (see Eckstein at para. 10 and R. v. Hickey , 2007 ONCA 845 at para. 5 (QL)).

We do not accede to this ground of appeal. [ 11 ] The other grounds raised by the accused relate, in our view, either to issues which should first be decided at trial or to slight errors of fact which do not vitiate the motions judge’s essential conclusion that there was some evidence that the complainant reasonably feared for her personal safety as a result of the accused’s conduct. [ 12 ] As a result, we denied the motion for fresh evidence and dismissed the appeal. _____________________________ C.J.M. I agree: _______________________________ J.A. I agree: _______________________________ J.A.