R. v. Green (M.), 2015 MBCA 60

Citation: R. v. Green (M.), 2015 MBCA 60 Date: 20150619 Docket: AR15-30-08376 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) M. Green ) on his own behalf (Respondent) Respondent ) ) R. D. Lagimodière and ) J. Myskiw - and - ) for the Respondent ) ) Chambers motion heard: MARTIN GREEN ) May 28, 2015 ) (Accused) (Appellant) Applicant ) Decision pronounced: ) June 19, 2015 MICHEL A. MONNIN J.A. [ 1 ] The applicant seeks leave to appeal from a decision of a

summary conviction appeal judge’s dismissal of his appeal of a conviction by a provincial court judge under the provisions of The Petty Trespasses Act , C.C.S.M., c.

P50 (the Act ). [ 2 ] In January of 2013, the applicant, who had enrolled as a student in the University of Winnipeg’s Faculty of Education (the University) in 2011, was barred indefinitely from attending the premises of the University as a result of his conduct in and out of the classroom. [ 3 ] On February 7, 2013, the applicant, with full knowledge and understanding of the ban against him, attended on the premises of the University, which brought about the charge of trespassing under the provisions of the Act . [ 4 ] At trial before the provincial court judge (the trial judge), the applicant took the position that he was not guilty of the charge against him because the barring notice was imposed based on lies and for a malicious purpose.

Following a five-day trial, the applicant was found guilty of trespassing and the trial judge imposed a reprimand as a penalty. [ 5 ] In her 30-page written reasons for decision, the trial judge conducted an extensive review of the facts, including an analysis of whether the applicant was afforded due process and procedural fairness by the University. She came to the conclusion that the University had not acted maliciously or arbitrarily in banning the applicant from its premises.

There being no doubt that the applicant was on the University premises on February 7, 2013, in direct contravention of the ban, the trial judge found the applicant guilty of the charge. [ 6 ] The applicant brought an appeal of his conviction. In dismissing the applicant’s appeal, the

summary conviction appeal judge stated the following: …. However, this is not a hearing de novo, where I am able to insert my own findings for those of [the trial judge]. The purpose of a

summary conviction appeal is to determine if [the trial judge] made a palpable or overriding error in reaching her decision. …. [ 7 ] The

summary conviction appeal judge went on to say in his oral reasons that:

…. She accepted evidence that people had expressed genuine concerns, even if [the applicant] had challenged the assertions of those witnesses. But she did so by undertaking a thorough and complete examination of the evidence, and reached the conclusion that she was required to make to determine the issue. And in those decisions, she was entitled to make.

I find nothing in those reasons which should warrant [appellate] intervention. [ 8 ] He then went on to conclude as follows: [The trial judge], reached the conclusion that the Barring Notices were reasonable under the circumstances, to provide for the safety and security of those present on campus. For the reasons that I have stated, she did not make any overriding or palpable error in reaching her conclusion. …. [ 9 ] The test to be met before leave to appeal from a

summary appeal court decision is granted is set out in s. 839 of the Criminal Code (the Code ), and in the cases of R. v. Schalla (K.T.) , 2007 MBCA 104 at para. 1 , 220 Man.R. (2d) 69 ; R. v. Langlois (D.J.) , 2008 MBCA 72 , 228 Man.R. (2d) 256 ; and R. v. McCorriston (G.J.) , 2010 MBCA 3 , 251 Man.R. (2d) 106 , and is as follows: 1) Pursuant to s. 839 of the Code , the decision of the

summary appeal court judge may be appealed, with leave, to the Court of Appeal on any ground that involves 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) There must be something exceptional about the arguable case warranting a second appeal hearing (see R. v. R.W.M. , 2011 MBCA 74 at paras. 26 , 32, 34, 270 Man.R. (2d) 29).

Since the case has already been reviewed by a judge of the Court of Queen’s Bench, which is the primary appellate court to review such matters, there should be an exceptional circumstance or compelling reason to allow this second level of appeal. [ 10 ] Furthermore, i f the question of law that has been put forward does not raise a question of law of general application, leave should be denied as in R. v. Hartt , 2009 ONCA 500 at para. 4 (QL) . In R. v. Paterson , 2009 ONCA 331 (QL) , the court stated (at paras. 1-2): Under s. 839(1)(

a) of the Criminal Code leave to appeal ... is to be granted sparingly. …. …. While the issues may be dressed up as legal questions that appear of general application and importance, nothing takes this proposed appeal beyond its singular facts. [ 11 ] In his written brief filed in support of his leave application, as well as in his lengthy oral argument, the applicant, in my view, failed to demonstrate that the issue he wishes this court to address is a question of law alone.

What he, in fact, challenges is the validity of the notice barring him from the University premises. [ 12 ] The trial judge, after reviewing the barring notice and after hearing much evidence surrounding its issuance, concluded that it was reasonably issued. The

summary conviction appeal judge also concluded that the barring notice was reasonably issued. The applicant is now seeking to have this court review that same barring notice. A second-level appeal is not the appropriate venue for this type of inquiry and the provisions of s. 839 of the Code were not enacted to permit a further review of factual findings made by a trial judge and confirmed by an initial appeal judge. [ 13 ] The applicant also briefly argued that his rights under the Canadian Charter of Rights and Freedoms ( the Charter) had been denied. That issue was not argued before the

summary conviction appeal judge, although the trial judge found that the applicant had not established any Charter breach. There is no basis to disturb that finding, nor to grant leave to the applicant on that basis. [ 14 ] Accordingly, the applicant’s request for leave to appeal is denied. J.A.