R v Culligan, 2018 MBCA 60

Citation: R v Culligan, 2018 MBCA 60 Date: 20180518 Docket: AR17-30-08935 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) R. I. Histed ) for the Applicant ) (Respondent) Respondent ) A. L. Kindle Pejovic and ) O. A. Siddiqui - and - ) for the Respondent ) PATRICK SHAMUS CULLIGAN ) Chambers motion heard: ) December 7, 2017 ) (Accused) (Appellant) Applicant ) Decision pronounced: ) May 18, 2018 BEARD JA I. THE ISSUE [ 1 ] The accused wishes to challenge the lawfulness of his arrest and the related search, in which he was found to be in possession of 12 rocks of crack cocaine.

After a trial in the Provincial Court, he was convicted by a Provincial Court judge (the trial judge) on February 4, 2016, of possession of cocaine under section 4(1) of the Controlled Drugs and Substances Act , SC 1996, c 19, resisting a peace officer under

section 129 (

a) of the Criminal Code and failing to comply with an undertaking by failing to keep the peace under section 145(5.1) of the Criminal Code . He was acquitted of uttering a threat under

section 264.1(1) (

a) of the Criminal Code and causing a disturbance in a licenced premises under section 120(4) of The Liquor Control Act , CCSM c L160 (since repealed and replaced by

section 28 of The Liquor and Gaming Control Act , CCSM c L153). He was sentenced to 18 months of supervised probation and a fine totalling $396. [ 2 ] The accused appealed his convictions by way of

summary conviction appeal to the Court of Queen’s Bench, where his appeal was dismissed. This is a motion for leave to appeal the decision of the

summary conviction appeal judge (the appeal judge) under section 839(1) of the Criminal Code . Thus, it is a second-level appeal. [ 3 ] The proposed grounds of appeal are as follows: (

i) the appeal judge erred in law in finding that the trial judge did not apply a stricter standard of scrutiny to the evidence of the accused and his witnesses than he used to assess the evidence of the Crown witnesses; and (ii) the appeal judge erred in law in upholding the finding of the trial judge that the arrest or detention of the accused was lawful on the basis that the issue was not raised at trial. II. THE FACTS [ 4 ] The trial judge summarized the case as follows: The Crown’s case against [the accused] is summarized as follows.

On January 12th, 2014 Constable Norman was on duty working in plainclothes capacity with a partner to enforce the provisions of The Liquor Control and Gaming Act at Teasers Bar in Winnipeg. Constable Norman entered the bar and saw [the accused] standing in the bar with other people. Constable Norman believed he recognized [the accused] from previous dealings. Constable Norman received prior information that [the accused] was pending on criminal charge and on release with conditions. Mr.

Norman requested -- or Constable Norman rather, requested that two supporting uniform officers enter the bar and spot check [the accused] to confirm his identity and determine if he was breach[ing] any of its release conditions.

When requested to produce identification [the accused] failed to comply and quickly became verbally aggressive and failed to respond to directions to calm down. Shortly thereafter [the accused] moved to approach Constable Norman and uniform officers physically restrained him fearing for the physical safety of Constable Norman. The accused was detained for causing a disturbance in a licensed premise pursuant to the provisions of The Liquor and Gaming Control Act . [ 5 ] Following the arrest, there was a scuffle outside that led to the charge of resisting a peace officer.

The accused was searched and the police found the cocaine in his pocket, leading to the charge of possession of cocaine. As the accused was subject to a court order to keep the peace, he was charged with breaching that provision. [ 6 ] The accused contested this version of events, testifying that the police officers did not explain why they were asking for identification and that he questioned why they were doing so. He denied that he became combative before being arrested, denied that he had cocaine in his pocket and denied that he attempted to head-butt an officer when they were outside.

The trial judge found the accused’s evidence to be not credible and accepted the version of events contained in the evidence of the police witnesses. III. THE TEST FOR A SECOND-LEVEL APPEAL [ 7 ] There is no right to appeal from the decision of a

summary conviction appeal judge; rather, leave to appeal is required (see section 839(1) of the Criminal Code ). The test for granting leave to appeal under section 839(1) is well known, consisting of three criteria: (

i) Any ground of appeal must involve a question of law alone. (ii) Even if a question of law does arise, leave should only be granted if the matter raises an arguable case of substance. (iii) 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 be that the issue raises matters that are of significance to the administration of justice or the development of the law beyond this case. (See, for example, R v R (R) , 2008 ONCA 497 at paras 16-38 ; R v Dickson (WA) , 2012 MBCA 2 at para 14 ; R v Fenske (HB) , 2015 MBCA 113 at paras 11-12 ; and R v Rule , 2017 MBCA 86 .) [ 8 ] The first criterion is contained in section 839(1). It defines the jurisdiction of the provincial courts of appeal to hear appeals from

summary conviction judges and is, therefore, mandatory. The second two criteria are found in the jurisprudence dealing with the implementation of this right of appeal. [ 9 ] The test which must be met by an applicant seeking a second-level appeal is quite high and requires that the applicant show both that there is an arguable case of substance and that there is something exceptional about the case warranting a second appeal hearing. The jurisprudence is clear that not all questions of law merit a second appeal—a second appeal in a

summary conviction proceeding should be the exception and not the rule. [ 10 ] The reason for these criteria was explained by Doherty JA in R (R) . To summarize, he stated that, while appeals are an integral part of the criminal justice system to protect against wrongful convictions and enhance the fairness of the process, they come at a cost. That cost is the prolonging of the criminal proceedings and the attendant uncertainty and anxiety to the accused, complainants and witnesses caused by the delayed finality of the matter.

A final determination may come only years after the events at issue, such that, by the time that the final decision is rendered, it has little connection to the people affected (see paras 16-17). [ 11 ] Doherty JA concluded that there must be a balancing of the benefits of permitting appeals and the negative effects of delays to the criminal justice system (at para 18): Canadian criminal law policy balances the benefits of appellate review and the negative effects inherent in that process by distinguishing between first and second levels of appeal in criminal proceedings.

Access to the former is virtually carte blanche. Access to the latter is narrowly restricted. [ 12 ] Doherty JA likens the second-level appeal of a

summary conviction, which is to the provincial courts of appeal, to the second-level appeal of an indictable conviction, which is to the Supreme Court of Canada. That Court has adopted a strict test for granting leave, requiring that the proposed question have a significant potential impact on the administration of justice beyond the specifics of the case. He finds that that same test should apply to the second-level appeal of a

summary conviction appeal to the provincial courts of appeal, and it is encompassed in the third criterion set out above (see paras 20-26). This reasoning has been widely adopted by provincial appellate courts across Canada, including by this Court. [ 13 ] There are occasions, however, when the decision of an appeal court is, in effect, a decision of first instance. This will occur, for example, where an appellate court reverses a decision of a trial court by substituting an acquittal for a conviction (see R v O’Meara , 2012 ONCA 420 at para 25 ; and R v MacKay , 2012 ONCA 671 at paras 21-22 ). In that case, the Crown will not have had the occasion to appeal the acquittal.

[14] A similar situation arises where an appellate court allows a Crown appeal of an acquittal and orders a new trial. Theaccused will not have had the opportunity to appeal the order for a new trial, so his appeal of that issue to the provincial court of appealwill, in reality, be a first-level appeal. [15] The test to be applied in an appeal of a new issue arising at the

summary conviction appeal arose in R v Fryza, 2012MBCA 47. Freedman JA rejected the Crown’s argument that there had to be exceptional circumstances before leave should be granted,stating that an appeal of those issues arising for the first time at the

summary conviction appeal would not, in substance, constitute asecond-level appeal (see paras 11-12). (See also R v Steuart (N), 2014 MBCA 7 at para 55.) [16] It is important to note that the decision being appealed is that of the appeal judge and not that of the trial judge. (See R(

R) at para 24.) [17] In this case, the first ground of appeal is a second-level appeal, so it is subject to the test applicable to a second-levelappeal. The second ground of appeal, however, raises an issue not dealt with by the trial judge and is, in effect, a first-level appeal. Thus, I would find, consistent with the decision in Fryza, that the third criterion should not apply. IV.

THE FIRST GROUND OF APPEAL [18] The first ground of appeal alleges that the appeal judge erred in law in finding that the trial judge did not apply a stricterstandard of scrutiny to the evidence of the accused and his witnesses than to the evidence of the Crown witnesses. I would agree thatthis error raises question of law. (See R v CAM, 2017 MBCA 70 at para 33.) [19] In my view, however, this ground of appeal does not meet the second and third criteria for a second-level appeal.

Theappeal judge gave complete and thorough reasons explaining her finding that the trial judge did not apply a different level of scrutiny tothe evidence of the defence than to that of the Crown. She also reviewed the factual findings of the trial judge and found that there wereno palpable and overriding errors. I am satisfied, after reviewing her reasons and the arguments of the parties, that this ground of appealneither raises an issue of substance nor is of sufficient importance to merit the attention of the full court. I am, therefore, dismissing themotion for leave to appeal on this ground. V.

THE SECOND GROUND OF APPEAL Question of Law [20] The second ground of appeal alleges that the appeal judge erred in law in upholding the finding of the trial judge thatthe arrest or detention of the accused was lawful on the basis that the issue was not argued at trial. [21] It is clear that, if an appeal judge misinterprets a trial judge’s reasons, the appeal judge has failed to exercise his or herappellate jurisdiction properly, which is an error on a question of law. (See R v McCullagh (1990), (ON CA), 53CCC (3d) 130 at 135 (Ont CA); R v M (RW), 2011 MBCA 74 at para 29; R v Lariviere, 2011 SKCA 19 at para 14; R v Cullen, 2015SKCA 142 at para 19; and R v Lange, 2016 SKCA 70 at para 13.) [22] In this case, the accused is arguing that the appeal judge erred by finding that the issue upon which he appealed had notbeen argued at trial.

In my view, this error, if it had occurred, would also lead to the conclusion that the appeal judge had failed toexercise his or her appellate jurisdiction properly. I would find that this error also raises a question of law. Arguable Case [23] The accused argued at trial that his initial arrest was unlawful and, therefore, that all of the police actions that followedwere also unlawful. The lawfulness of a detention and arrest can be challenged either as a defence to a charge or by way of anapplication for relief under the Canadian Charter of Rights and Freedoms (the Charter).

The accused has clearly and consistentlymaintained the position that he is not applying for any relief under the Charter. He has, however, also consistently challenged thelegality of his initial detention and arrest as a defence to the lawfulness of the police action and the charges that followed. [24] In this case, the lawfulness of the arrest could be challenged on two bases apart from the Charter. The first is based onthe defence evidence that, factually, there was no disturbance, no threats, no head-butting of an officer and no cocaine in the accused’spocket.

At trial, the bulk of the evidence and argument related to the credibility of the evidence of the witnesses as to what happenedbetween the accused and the police, and the trial judge dealt with those issues in his reasons. [25] The accused’s second position is that, even if the Crown evidence is believed, the police evidence demonstrates that theofficers detained him without adequate grounds, and therefore unlawfully, to get his identification, so that all that followed that unlawfuldetention was also unlawful.

This argument was not dealt with by the trial judge, and it is this argument that the appeal judge found hadnot been put forward at the trial. This was explained by the appeal judge as follows: . . . The second issue is a challenge to the trial judge’s finding that the police were acting in their lawful duties when they arrested[the accused]. If the police were not acting in their lawful duties when they arrested him, [the accused] would have been legally justifiedin resisting the arrest.

The main focus of the argument on the appeal is that the police unlawfully detained [the accused] when theyasked him for his identification and that [the accused] had a right to refuse and that [the accused]’s response to the unlawful detentioncannot then be used to justify his arrest. The first difficulty with this argument is that it was not raised at trial. This point is conceded in the factum that was prepared onbehalf of and relied on by [the accused].

At the trial the thrust of the defence was that the police officers were not credible and that theyhad concocted the disorderly conduct allegation to justify an unlawful arrest of [the accused]. This is quite different from the claim

made on appeal that [the accused] was unlawfully detained when asked for his identification and his response was therefore justified and therefore his subsequent arrest unlawful. [ 26 ] This case was presented in a somewhat disjointed manner, in that the accused was represented by one lawyer at the trial, while a second lawyer filed the notice of appeal and then a third lawyer prepared and filed a factum. The accused argued the

summary conviction appeal himself, and then retained his trial counsel to argue the motion for leave to appeal to this Court. [ 27 ] While the factum for the

summary conviction appeal states that the argument now at issue regarding the lawfulness of the arrest was not advanced at the trial, the accused argues that that statement in the factum related only to the decision not to advance a Charter motion and not to the alternative challenge regarding the lawfulness of the arrest.

He argues alternatively that, if the statement in the factum was not so limited, it was and is just wrong in its understanding of the arguments put forward at trial. [ 28 ] This, in turn, raises the question of whether the argument at issue regarding the lawfulness of the arrest and detention was, in fact, raised at the trial. The transcript of the defence submissions at the trial contains the following (trial transcript, vol 3): [at p 3, lines 1-4:] THE COURT: . . . is it the, ultimately going to be your position that there’s no basis for the arrest, the officer’s [ sic ] not in the lawful execution of his duty?

MR. HISTED: Yes. . . . [at p 7, lines 32-34 to p 8, lines 1-5:] MR. HISTED: . . . Right from the beginning, in my respectful submission, what you have here is an intention to detain all three of these individuals regardless of whether they produced identification. Constable Norman confirmed in his cross-examination that he understood a spot check to include in these circumstances being contained [ sic ] that they would not have had the choice about leaving and that’s exactly what took place. . . . [at p 8, lines 31-34:] MR.

HISTED: . . . [B]oth of them . . . acted out of spite and malice and having [the accused] detained irrespective of whether or not he was breaching any orders. Whether he was breaching the order was secondary. [at p 9, lines 6-15:] MR. HISTED: . . . [W]hat took place here was that Constable Norman, assuming that my client was a member of the Zigzag Crew or still active in those circles, just didn’t give it any serious consideration to whether or not he ought to be detaining him in the way he did at that time.

He testified that a spot check was a detention, he understood that, and he understood that [the accused] was going to be detained by Tymyshyn, and whether that detention took place in the bar or took place outside . . . [at p 16, lines 8-12:]

. . . MR. HISTED: Well, before I go on, so it’s clear as soon as the conversation happens between Constable Norman and Constable Tymyshyn, these three people are going to be detained and these three people are going to be taken out and investigated. . . . . . . [at p 50, lines 31-34 to p 51, lines 1-9:] MR. HISTED: There is an even bigger problem with the resistance if there was a resistance because from the outset, the detention was, in my respectful submission, unlawful. . . . The reasonable grounds were lacking. [The accused], if you found him to have resisted, had every right to resist.

He had every right to resist an unlawful arrest to the extent of struggling in a way that he did if you find that.

In my respectful submission, [the accused] has denied that, and whether you find that on the balance on whole, Your Honour, I think there’s a defence to that, even if you don’t except [ sic ] [the accused]’s evidence about that. [ 29 ] In my view, these excerpts could suggest that the issue of whether the police had unlawfully detained the accused when they asked him for identification was raised at the trial. [ 30 ] There was evidence from the police officers that could support the argument that they were of the view that the accused and his friends were being detained, that they were required to provide the police officers with identification and they were not free to disregard the demand to produce identification. [ 31 ] I am of the view that the accused has raised an arguable case in relation to his second ground of appeal.

Given that the issue of the nature of the argument at trial was raised for the first time at the

summary conviction appeal, I would not apply the criteria that the issue must be either substantial or of importance to the administration of justice beyond this case. [ 32 ] I am, therefore, granting leave to the accused to appeal on the following ground: The appeal judge erred in law in upholding the finding of the trial judge that the arrest or detention of the accused was lawful on the basis that the issue was not raised at trial ______________________________ JA