R v Hyra (J), 2017 MBCA 1

Citation: R v Hyra (J), 2017 MBCA 1 Date: 20170103 Docket: AR14-30-08291 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Mr. Justice William J. Burnett BETWEEN: HER MAJESTY THE QUEEN ) J. Hyra ) on his own behalf Respondent ) ) R. N.

Malaviya- and - ) for the Respondent ) ) Appeal heard:JASON HYRA ) October 28, 2016 ) (Accused) Appellant ) Judgment delivered: ) January 3, 2017 On appeal from 2014 MBQB 213 MONNIN JA [1] This is an appeal from the dismissal of an application seeking post conviction disclosure. [2] In addition, at the hearing of the appeal, the accused sought a change of venue to another province. The applicationwas summarily dismissed. The accused offered no evidence to support his assertion that he could not obtain an unbiased hearing beforethis Court.

More importantly, in our view, there is no statutory or jurisprudential authority to permit what the accused was seeking. [3] In addition, the accused brought an application seeking to adduce fresh evidence with respect to the disclosureappeal. [4] In August of 2004, the accused was charged with criminal harassment that occurred between December 2000 andAugust 2004. [5] In May of 2006, following a trial, he was convicted of criminal harassment. See R v Hyra, 2006 CarswellMan 493(WLNext Can)(QB).

In convicting the accused, the trial judge stated (at paras 27-28): I begin with the analysis of the fact that, in this case, the accused has testified. Because the accused has testified, I must consider the testset out in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 (S.C.C.). If I believe the accused, and his denials, the accused isentitled to an acquittal. If I do not believe the accused, but his evidence nonetheless raises a reasonable doubt, he is still entitled to anacquittal.

If his evidence does not raise a reasonable doubt, I must consider whether the remaining evidence proves the offence has beencommitted by the accused beyond a reasonable doubt. I have already stated that I do not believe the accused. However, I find it interesting that. Even if I had, his own evidence shows that hehad initiated several communications with the complainant after he was aware of her fear of him. His evidence seems to have beenadvanced to show either that she was not fearful or that her fear was unreasonable because his communications with her were friendly orinnocuous.

He clearly admitted, however, having communicated with the complainant after she had gone to the police in April 2001 and

again February 2003. I do not accept his version of events during that period. I do not accept that the complainant constantly sought himout at the gym to workout silently beside him. The only person who testified to support the accused on that point got the year wrong. I donot accept the accused’s version that he was being victimized by the complainant during this period in that way. [6] The accused appealed his conviction to this Court in June of 2007. See R v Hyra (J), 2007 MBCA 69, 214 ManR(2d) 215.

In dismissing the appeal, Chartier JA (as he then was) wrote (at para 4): I would be remiss if I were not to comment on the issue raised by the accused with respect to the trial judge having erred in hisassessment of credibility. Though the trial judge enunciated the R. v. D.W., (SCC), [1991] 1 S.C.R. 742 . . . approachcorrectly, it is clear from a review of his oral reasons that the application was carried out without a consideration of steps two and threeof the D.W. analysis.

That inadequacy is not determinative on this appeal because the trial judge founded his decision on the accused’sown uncontested testimony and letters that were filed as exhibits.

None of this evidence was dependent upon findings of credibility orreliability. [7] And he went on as follows (at paras 11, 14, 26-27): While the factual inaccuracies expressed by the trial judge are concerning in that it is not obvious to what extent they formed a premiseas to the somewhat conclusory statement expressed in his reasons with respect to her fear, they are not determinative of this appeal inlight of my review of the evidence. There is sufficient evidence on the fourth element to justify the judge’s finding that the accused’sconduct caused the complainant to fear for her safety.

In his reasons, the trial judge chose to disregard “the conflict in the evidence as to the events that occurred prior to the end of January2001.” Rather, he relied on the accused’s own uncontested testimony and letters that were filed as exhibits (which were not dependentupon findings of credibility or reliability) relating to the period of time from the end of January 2001 to the beginning of August 2004.

In the end, it is apparent from the evidentiary record that there was a basis for the conclusion drawn by the trial judge when he stated inhis reasons that “the fear the complainant felt was reasonable given its nature and repetitiveness, particularly in the face of herpolice complaints.” There was sufficient evidence on all elements of the offence so that it was reasonable for a properly instructed trier of fact actingjudicially to convict the accused of the offence charged. [8] The accused then sought leave to appeal the dismissal of his appeal to the Supreme Court of Canada.

Thatapplication was denied. [9] The accused then made an application under

section 696.1 of the Criminal Code for ministerial review based on amiscarriage of justice. That application was also denied. [10] The accused has since pursued numerous avenues to address what he believes was a wrongful accusation andconviction. In his reasons dismissing the accused’s application for post conviction disclosure, the judge described the path pursued bythe accused in the following words (at para 2): These avenues included many complaints to the Professional Standards Unit of the Winnipeg Police Service, the Law Society ofManitoba, the Manitoba Ombudsman, and the Law Enforcement Review Agency.

He made numerous requests under The Freedom ofInformation and Protection of Privacy Act, C.C.S.M. c F175, and complaints of others respecting that Act. When his s. 696.1application for ministerial review was denied, he sued the Attorney General of Canada for negligence. Further, in numerous other civilactions he sued his lawyers, the police, and Crown attorneys. He filed and defended peace bonds or protection orders.

He attemptedprivate prosecutions of dozens of charges against 11 people, including the victim of his criminal harassment, the Crown prosecutor, andsenior justice officials, including the Attorney General of Manitoba. Except for having one protection order against him vacated,ironically by me ([McKay] v. Hyra, 2012 MBQB 260, 283 Man.R. (2d) 177. ), I understand the complaints and actions he launched haveall been materially unsuccessful.

Nevertheless, [the accused] carries on. [11] In dismissing the accused’s request for further disclosure, the judge referred to the trial judge’s reasons at paras 24 and25 and then stated (at para 16): It should be obvious, from this passage and the decision as a whole, particularly when read with the trial decision, that [the accused]’sposition that he will be exonerated with disclosure of the nature sought here is a fallacy. He was convicted on his own evidence. No

amount of disclosure will change that. Nonetheless, I now turn to his specific requests for disclosure. [12] He then goes on as follows (at paras 18, 20): What [the accused] proposes goes far beyond the scope of any prosecutorial duty. There is no legal foundation for it and, materially,there is no factual foundation for it. To the extent that he cobbles together a supposed factual foundation, it is in reality nothing morethan a fanciful distortion of speculation and argument repeatedly built one upon the other.

For instance, as part of his October 2014 letterto me, [the accused] wrote that I have been “presented with a signed confession from the Complainant in this matter detailing who wasactually committing the harassment— . . . that being the Complainant and her boyfriend (now husband) . . .”. This is nonsense, there isno such “confession”.

And, most critically, whether viewed generally or through the prism of a McNeil [R v McNeil, 2009 SCC 3, [2009] 1 SCR 66] orO’Connor [R v O’Connor, (SCC), [1995] 4 SCR 411] application, the success of a post-conviction disclosureapplication such as this one would in any event depend on [the accused] demonstrating the likely relevance of the information,particularly at this stage, given all of his unsuccessful appeals, ministerial review and other legal initiatives. [The accused] has failed toestablish that any of the material he wants is even remotely relevant to his claim of innocence or a credible doubt respecting hisconviction (i.e. either in breach of the common law or Charter rights or the Crown’s disclosure policy).

Whether he realizes it or not, hisrequest for disclosure is effectively a fishing expedition—he wants to see if there is anything there, as he suspects there must be based onhis perception. [13] The accused argued before us that, in order to properly advance his appeal, he needed to adduce fresh evidence. Following argument, we adjourned his request, pending the hearing of his substantive appeal on the issue of further disclosure. [14] The test to be applied when considering an application to adduce fresh evidence is well established.

It was set out bythe Supreme Court of Canada in Palmer et al v The Queen, (SCC), [1980] 1 SCR 759. McIntyre J wrote as follows (at p775): Parliament has given the Court of Appeal a broad discretion in s. 610(1)(d). The overriding consideration must be in the words of theenactment “the interests of justice” and it would not serve the interests of justice to permit any witness by simply repudiating or changinghis trial evidence to reopen trials at will to the general detriment of the administration of justice.

Applications of this nature have beenfrequent and courts of appeal in various provinces have pronounced upon them—see for example Regina v. Stewart (1972), (BC CA), 8 C.C.C. (2d) 137 (B.C.C.A.); Regina v. Foster (1977), 1977 ALTASCAD 300 , 8 A.R. 1 (Alta. C.A.); Reginav. McDonald, (ON CA), [1970] 3 C.C.C. 426 (Ont. C.A.); and Regina v. Demeter (1975), (ON CA),25 C.C.C. (2d) 417 (Ont. C.A.) [affirmed (SCC), [1978] 1 S.C.R. 538]. From these and other cases, many of which arereferred to in the above authorities, the following principles have emerged:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [ (SCC), [1964]SCR 484].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [15] The evidence that the accused wishes to adduce is set out in a two-volume affidavit consisting of some 21 differentdocuments.

Those documents are described by the accused in the affidavit filed in support of his application in the following terms: The general nature of the evidence sought to be introduced as further evidence in this appeal can be laid out as: evidence obtained fromthe Winnipeg Police Service (WPS) in the form of Freedom of Information and Protection of the Privacy Act (FIPPA) requests,decisions in recent court cases for the Accused, transcripts, phone records, subpoenas, gym records, correspondence between theAccused and the WPS and their Professional Standards Unit (PSU), recorded voicemails, documented witness statements, characterwitnesses, documented evidence of the Accused, faxes, Protection Order documentation, and the Judicial decisions of the Justices in thisproceeding.

[ 16 ] A closer scrutiny of those documents reveal them to be materials that either predate the accused’s trial, or are documents created for, or in furtherance of, the many proceedings initiated by the accused since his conviction as referred to in para 10 of these reasons.

Many are self-serving and, in my view, are not to be considered as reliable. [ 17 ] With respect to those documents that predate the accused’s trial, he now argues that, although the documents existed at the time of his trial, they were not relied upon by him on the advice of counsel who, he now alleges, badly represented him at his trial. [ 18 ] This allegation of incompetency of counsel is a matter that is now being raised before this Court for the first time, long after his appeal was dismissed. [ 19 ] In my view, none of the evidence that the accused wishes to adduce as fresh evidence meets any of the Palmer requirements.

Accordingly, I would dismiss his application to have that evidence adduced in our consideration of his appeal seeking post conviction disclosure. [ 20 ] This now brings me to the accused’s appeal on the issue of post-conviction disclosure. The judge provided thorough, cogent and well-explained reasons for denying the accused’s request. He committed no error in arriving at the conclusion that he did for the reasons he set out. [ 21 ] The accused’s appeal is devoid of any merit and is accordingly dismissed. JA I agree: JA I agree: JA