R v Dilk, 2015 MBCA 111

Citation: R v Dilk, 2015 MBCA 111 Date: 20151202 Docket: AR15-30-08498 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: HER MAJESTY THE QUEEN ) J. M. Mann ) for the Applicant ) (Appellant) Applicant ) No appearance ) for the Respondent- and - ) ) Chambers motion heard:MARK CHARLES DILK ) November 19, 2015 ) ) Decision pronounced: (Accused) (Respondent) Respondent ) December 2, 2015 LEMAISTRE JA [1] This is a motion by the Crown under section 839(1) of the Criminal Code (the Code) for leave to appeal the decisionof the

summary conviction appeal judge (the appeal judge). [2] The appeal judge dismissed the Crown’s appeal from the decision of the trial judge acquitting the accused of twocounts of breaching a prevention order pursuant to

section 127 of the Code. [3] Leave may only be granted on questions of law alone (see section 839(1) of the Code). If there is a question of lawalone, it has to raise an arguable issue of substance that merits the attention of the full court. See R v H (CR), 2002 MBCA 58; R vGiftwares Wholesale Co Ltd (No 2) (1980), (MB CA), 53 CCC (2d) 380 (Man CA); and R v Schalla (KT), 2007MBCA 104, 220 ManR (2d) 69. Further, an appeal to this Court is from the judgment of the appeal judge, not the trial judge (R v Emery(1981), (BC CA), 61 CCC (2d) 84 (BC CA), leave to appeal to SCC refused, [1981] SCCA No 72 (QL)).

As a result,there must be an exceptional circumstance or compelling reason to allow this second level of appeal. See R v RWM, 2011 MBCA 74 atparas 26, 32, 34, 270 ManR (2d) 29. [4] The Crown seeks leave to appeal on the following ground, which it submits is a question of law alone: 1.

Did the appeal judge err by finding that the accused had a lawful excuse for breaching the prevention order? [5] The pertinent parts of the prevention order made pursuant to The Domestic Violence and Stalking Act, CCSM c D93,read as follows: [The accused] is enjoined and restrained from entering upon any premises where [the complainant] may be living separate and apart from[the accused]. [The accused] shall not have contact or communication with [the complainant] except to discuss major decisions affecting [the children]or to make arrangements regarding [the accused] exercising access to [the children]. [6] In finding that the accused had a lawful excuse for breaching the prevention order, the trial judge held that thecomplainant and the accused had “loosely interpreted” the order and made “tolerances” for what he described as technical breaches over

an “eight year practice”. [ 7 ] At the

summary conviction appeal hearing, the appeal judge found that the accused breached the prevention order when he entered the residence of the complainant and had contact or communication with the complainant and that deference was owed to the decision of the trial judge in finding that there was a period of acquiescence which constituted a lawful excuse.

He further found that parties to a civil order often vary the conditions of an order informally by their conduct, and that notice should be given when one party wishes to rely upon the order if there has been tolerance for breaches in the past. [ 8 ] Although he was duly served with the Crown’s notice of motion and supporting material, the accused did not appear for the hearing of this motion. [ 9 ] The Crown asserts that, in finding that the accused had a lawful excuse, the appeal judge relied upon findings of fact by the trial judge for which there was no evidence.

Furthermore, it says the appeal judge relied upon findings where the trial judge failed to consider all of the evidence in relation to the ultimate issue of guilt or innocence. [ 10 ] Whether there was a material misapprehension of the evidence and whether acquiescence is a lawful excuse are questions of law. In my view, there is an arguable issue of substance in this case.

As I will grant leave, I will not elaborate any further other than to cite these two decisions from this Court: R v Custance (JD) , 2005 MBCA 23 , 192 ManR (2d) 69 , leave to appeal to SCC refused, [2005] SCCA No 156 (QL); and R v Fairchuk (CL) , 2003 MBCA 59 , 173 ManR (2d) 274 , leave to appeal to SCC refused, [2003] SCCA No 339 (QL). [ 11 ] Therefore, I grant leave on the following questions of law: 1. Did the appeal judge err by misapprehending the evidence? 2. Did the appeal judge err by finding that the accused had a lawful excuse for breaching the prevention order within the meaning of

section 127 of the Criminal Code ? JA