R. v. Ackman, 2015 MBCA 61

Citation: R. v. Ackman, 2015 MBCA 61 Date: 20150624 Docket: AR15-30-08348 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) D. Ackman ) on his own behalf (Respondent) Respondent ) ) N. M. Cutler ) for the Respondent - and - ) ) Chambers motion heard: DARRELL ERWIN ACKMAN ) June 11, 2015 ) (Accused) (Appellant) Applicant ) Decision pronounced: ) June 24, 2015 HAMILTON J.A. [ 1 ] The applicant (the accused) seeks leave to appeal the decision of a

summary conviction appeal judge (the appeal judge) dismissing his appeal of two convictions for breach of a recognizance. The Trial [ 2 ] After a three-day trial, the trial judge convicted the accused of two counts of breaching the condition in his recognizance that he not attend any school or school grounds. She was satisfied beyond a reasonable doubt that the accused attended the school grounds of Grant Park High School on April 2, 2013, and the school grounds of the University of Winnipeg on April 23, 2013. [ 3 ] The accused admitted at trial that he refers to himself as “Mr. Jetz” and that he places “Mr.

Jetz” posters around the City of Winnipeg for various purposes, including inviting people to contact him to audition for movies. [ 4 ] The critical issues with respect to the count concerning Grant Park High School were whether the Crown had proved beyond a reasonable doubt that a Mr. Jetz poster was located on Grant Park High School property and whether the accused put up the poster on April 2, 2013. [ 5 ] Two Grant Park High School staff members testified that on April 2, 2013, they found a Mr. Jetz poster on the fence of the high school parking lot and took a photograph of it.

They then turned the poster in to school officials. They also testified that just before they saw the poster in the high school parking lot, they had seen a person in the Safeway parking lot, which is across the street from Grant Park High School, leave a car that was “reddish” in colour, put up an identical poster on a fence on that property and return to the car. They each positively identified the accused, by way of photo pack and in court evidence, as the person who put up the poster on the Safeway parking lot fence.

Video surveillance of the Safeway parking lot for this specific time period was tendered as evidence. It also included images of the high school parking lot.

The trial judge found that the video shows a person getting out of a reddish car at the high school parking lot in the area the poster was found and then immediately drive across the street, get out of the car and go to the area of the Safeway parking lot fence where that poster was found. [ 6 ] The critical issue with respect to the count concerning the University of Winnipeg was whether the accused attended a school or school grounds by attending the University of Winnipeg campus on April 23, 2013. The University of Winnipeg includes The Collegiate, which is a high school.

The accused acknowledged that he attended the University of Winnipeg campus that day to go to the bookstore. He also acknowledged that he put up Mr. Jetz posters around the campus. [ 7 ] After the close of evidence and submissions, the trial judge reserved her decision for several days. Just before giving her oral reasons, the accused advised the trial judge that he wished to tender into evidence a photograph (the new evidence photo) depicting the Grant Park High School parking lot to dispute the authenticity of the photographs tendered by the Crown. The trial judge denied the request and gave her decision.

[ 8 ] She explained that the testimony of the Grant Park High School staff satisfied her that the Mr. Jetz poster that had been removed by them had been on the fence located on the Grant Park High School parking lot on April 2, 2013. She explained that there was no direct evidence from a witness that the accused had put the poster on the high school fence that day. She did not accept the accused’s evidence that he did not put up the poster nor did it raise a reasonable doubt about that. She found that the evidence was “overwhelming” and led to the logical inference that the same person who put the Mr.

Jetz poster on the Safeway parking lot fence on April 2, 2013, put the Mr. Jetz poster on the Grant Park High School parking lot fence the same day. [ 9 ] With respect to the University of Winnipeg, she found that the University of Winnipeg was a school ground because it included a high school, and that given his own evidence at trial about his familiarity with the campus, the accused knew, or reasonably should have known, that The Collegiate was part of the University of Winnipeg. The

Summary Conviction Appeal [ 10 ] The appeal judge did not permit the accused to tender the new evidence photo at the appeal hearing. In his brief reasons, he explained that the appeal was not a “retrying” of the case and that the accused had to identify errors on the part of the trial judge, which he had not done. He dismissed the accused’s appeal of his convictions. Leave to Appeal the

Summary Conviction Appeal [ 11 ] The test for leave to appeal to this court from a

summary conviction appeal judgment creates a high threshold because an applicant is seeking a second-level appeal. The criteria to be met were stated in R. v. McCorriston (G.J.) , 2010 MBCA 3 , 251 Man.R. (2d) 106 (at para. 16 ): ....

(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 reviewed by a judge of the Court of Queen’s Bench, which is the primary appellate court to review such matters, there should be a compelling reason to allow this second level of appeal.

One compelling reason would that the issue raises matters that are of significance to the administration of justice or the development of the law beyond this case. …. [ 12 ] The accused stated the following proposed ground of appeal in his notice of application for leave: “To introduce fresh evidence - to prove that the applicant did not breach.” He confirmed at the hearing before me that the fresh evidence is the new evidence photo.

At the hearing, I permitted the accused to file a handwritten brief which contains more proposed grounds of appeal, which he also addressed in his oral argument. [ 13 ] I would summarize his proposed grounds of appeal as follows: 1. That the appeal judge erred by not admitting the new evidence photo as fresh evidence. 2. That the appeal judge erred in not finding that the trial judge erred when she did not reopen the trial to permit him to tender the new evidence photo. 3.

That the appeal judge erred in not finding that the trial judge misapprehended the evidence, particularly with respect to the Grant Park High School parking lot and the video surveillance. 4. That the appeal judge erred in not concluding that the evidence before the trial judge was insufficient and misleading. [ 14 ] None of these proposed grounds of appeal meet the high threshold required for leave to appeal to be granted to the accused. [ 15 ] The first two proposed grounds of appeal concern discretionary rulings and, as such, they would be entitled to deference on appeal unless error can be demonstrated.

The record of the proceedings before the trial judge and the appeal judge provide the context for their rulings not to admit the new evidence photo into evidence.

When I review the record of these proceedings, I see no arguable question of law. [ 16 ] With respect to the third and fourth proposed grounds of appeal, the accused has not demonstrated an arguable question of law arising from the appeal judge’s conclusion that the trial judge thoroughly and carefully reviewed the evidence, made inferences from that evidence and that the accused had not demonstrated any reversible error. [ 17 ] Furthermore, I agree with the Crown that none of the accused’s proposed grounds of appeal are of sufficient importance to merit the attention of the full court. [ 18 ] Therefore, I dismiss the accused’s application for leave to appeal the dismissal of his

summary conviction appeal.

J.A.