R. v. Pottie, 2013 NSCA 68

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Pottie , 2013 NSCA 68 Date: 20130530 Docket: CAC 405174 Registry: Halifax Between: Adam Frederick Pottie Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice David P.S. Farrar Appeal Heard: April 3, 2013 Subject: Criminal Law. Appeal from

Summary Conviction Appeal Court, s. 839 of the Criminal Code of Canada , R.S.C. 1985, c. C-46 . Prerequisites for Granting Leave to Appeal.

Summary: The appellant pled guilty to the offence of assault causing bodily harm. At sentencing he sought a conditional discharge. The sentencing judge rejected this request and imposed a suspended sentence with a 16-month period of probation. The appellant appealed to the

Summary Conviction Appeal Court alleging the sentencing judge applied too restrictive a test when considering his request for a conditional discharge. The SCAC appeal was dismissed. The appellant appealed to this Court, essentially arguing the same grounds of appeal argued before the SCAC. He sought leave to appeal and, if granted, to appeal the decision of the SCAC. Held: Leave to appeal denied. There was nothing exceptional about this case that warranted leave to appeal being granted. The issues raised by the appellant deal with settled law and are not significant to the administration of justice.

No further guidance was required about who can or should receive a conditional discharge. Further, there was no clear error on the face of the

Summary Conviction Appeal Court Justice’s decision. The appellant was simply attempting to re-argue the decision of the sentencing judge.

This information sheet does not form part of the court ’ s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 11 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Pottie , 2013 NSCA 68 Date: 20130530 Docket: CAC 405174 Registry: Halifax Between: Adam Frederick Pottie Appellant v. Her Majesty the Queen Respondent Judges: Fichaud, Beveridge and Farrar, JJ.A. Appeal Heard: April 3, 2013, in Halifax, Nova Scotia Held: Leave to appeal denied per reasons for judgment of Farrar, J.A.; Fichaud and Beveridge, JJ.A. concurring. Counsel: Ian D. Hutchison and David C.

Hamel-Smith , Articled Clerk, for the appellant Timothy S. O’Leary, for the respondent Reasons for Judgment: [ 1 ] The appellant, Adam Pottie, is a drywall contractor. On November 16, 2010, he met Gary Couch at a job site where Mr.

Couch was a site supervisor for another contractor. Mr. Couch made a comment. Mr. Pottie took the comment as a taunt and attacked Mr. Couch punching him repeatedly in the face and ribs. The assault ended when Mr. Pottie was pulled off Mr. Couch by two other individuals who were on site. [ 2 ] Mr. Couch suffered injuries which included swollen eyes, a sore chest and three separate fractures to a bone in his face. [ 3 ] The appellant was charged with assault causing bodily harm. The Crown proceeded summarily. [ 4 ] On March 14, 2011, Mr. Pottie pled guilty. [ 5 ] The sentencing hearing commenced on May 24, 2011.

Mr. Pottie requested a conditional discharge. The Crown recommended a six to nine month sentence of incarceration. [ 6 ] The Honourable Provincial Court Judge Barbara Beach adjourned the sentence hearing on that date to “try and come to terms with what is the appropriate sentence”. [ 7 ] After the adjournment of the sentencing hearing, Mr. Pottie obtained new counsel who presented the sentencing judge with letters of reference, a risk assessment and written submissions in support of Mr. Pottie’s request for a conditional discharge. [ 8 ] The sentencing hearing resumed on November 10, 2011.

The sentencing judge heard further submissions from counsel for Mr. Pottie including detailed submissions on his request for a conditional discharge. She then sentenced Mr. Pottie to a suspended sentence with a 16-month period of probation and what she considered to be a “lenient but appropriate” sentence. [ 9 ] On December 6, 2011, the Crown filed a notice of appeal on the grounds that the sentencing judge failed to grant a DNA order. On December 23, 2011, Mr.

Pottie filed a notice of cross-appeal on the ground that the sentencing judge failed to impose a conditional discharge. [ 10 ] On June 20, 2012, the appeal and cross-appeal were heard by the

summary conviction appeal court (SCAC). Supreme Court Justice Kevin Coady granted the appeal for the DNA order and dismissed the cross-appeal for a conditional discharge. [ 11 ] On July 24, 2012, the appellant filed a notice of appeal to this Court from the decision of the SCAC. [ 12 ] In his factum, Mr. Pottie states the issues as follows: 1. Was the appellant eligible to receive a conditional discharge? 2. Is the application of too restrictive a test for a conditional discharge an error of law? 3. Did the

Summary Conviction Appeal Court Judge err in law by failing to find that the Sentencing Judge applied too restrictive a test as to the availability of the conditional discharge? [ 13 ] The Crown acknowledges that Mr. Pottie was eligible to receive a conditional discharge. For the purposes of my analysis I would restate the issues on appeal as follows: 1. Should leave to appeal be granted? 2. If leave to appeal is granted, did the SCAC judge err in law by failing to find that the sentencing judge had applied too restrictive a test as to the availability of a conditional discharge?

Standard of Review [ 14 ] This is an appeal under s. 839 of the Criminal Code of Canada , R.S.C. 1985, c. C-46. It is restricted to questions of law alone, with leave of this Court. The standard of review we apply is correctness ( R. v. MacNeil , 2009 NSCA 46 , ¶8). [ 15 ] In the recent decision of R. v. Francis , 2011 NSCA 113 , Fichaud, J.A. considered the standard of review to be applied in an appeal pursuant to s. 839(1) (

a) of the Criminal Code . In

summary, there are two standards of review at play in

summary conviction matters; the first is the standard of review to be applied by the SCAC judge when reviewing the trial decision; and the second being the standard we apply to the decision of the SCAC judge. [ 16 ] The standard of review for the SCAC judge when reviewing the trial judge’s decision, absent an error of law or miscarriage of justice, is whether the trial judge’s findings are reasonable or cannot be supported by the evidence.

In undertaking this analysis the SCAC court is entitled to review the evidence at trial, re-examine it and re-weigh it, but only for the purposes of determining whether it is reasonably capable of supporting the trial judge’s conclusions. The SCAC is not entitled to substitute its view of the evidence for that of the trial judge. [ 17 ] Our jurisdiction is grounded in the error alleged to have been committed by the SCAC judge. It is not a de novo appeal from the trial judge.

This Court must determine whether the SCAC judge erred in law in the statement or application of the principles governing its review (see Francis , ¶7; see also R. v. R.H.L. , 2008 NSCA 100 ; R. v. Travers , 2001 NSCA 71 ; R. v. Nickerson , 1999 NSCA 168 , ¶6). This distinction is important when considering whether to grant leave; the error we must identify is in the SCAC judge’s decision. Issue #1 - Should leave to appeal be granted?

[ 18 ] In MacNeil , this Court referred to the Ontario Court of Appeal’s decision in R. v. R.R. , 2008 ONCA 497 when discussing the issues surrounding an application for leave to appeal from a decision of the SCAC: [9 ] The Ontario Court of Appeal in R. v. R. R. (2008), 234 C.C.C. (3d) 463, 238 O.A.C. 242, 2008 ONCA 497 , explains when leave may be granted: [37] In

summary, leave to appeal pursuant to s. 839 should be granted sparingly. There is no single litmus test that can identify all cases in which leave should be granted. There are, however, two key variables - the significance of the legal issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal. On the one hand, if the issues have significance to the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, though the grounds must at least be arguable.

On the other hand, where the merits appear very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty. [ 19 ] In R. v.

R.E.M. , 2011 NSCA 8 , this Court cited MacNeil and R.R. with approval at ¶47: …In deciding if leave will be granted, the panel will examine if the questions of law raised transcend the borders of the specific case and are significant to the general administration of justice; or leave may also be granted where a "clear" error is apparent… [ 20 ] The rationale for selectively granting leave to appeal in order to limit access to provincial appellate courts is understandable. When a

summary conviction matter is granted a second appeal to a provincial appellate court, it becomes the third court involved in the proceedings. If leave to the provincial appellate courts is not granted selectively,

summary matters would essentially have more appeal rights than some of the most serious criminal cases at the Supreme Court of Canada. (see R. v. R. R. , at ¶20 and ¶24-27; R. v. Dickson , 2012 MBCA 2 at ¶14). [ 21 ] The Crown, in its factum, has accurately summarized the principles that have emerged from the case law to guide provincial appellate courts when deciding whether to grant leave to appeal from a SCAC decision. They are: 1. Leave to appeal should be granted sparingly. A second appeal in

summary conviction cases should be the exception and not the rule. [see R. R. at ¶25 and ¶37; R. v. Chatur , 2012 BCCA 163 at ¶18; R. v. Paterson , 2009 ONCA 331 at ¶1] 2. Leave to appeal should be limited to those cases in which the appellant can demonstrate exceptional circumstances that justify a further appeal. [see R.R. , ¶27; R. v. Dickson , 2012 MBCA 2 , ¶14; R. v. M. (R.W.) , 2011 MBCA 74 , ¶32] 3. Appeals involving well-settled areas of law will not raise issues that have significance to the administration of justice beyond a particular case. [see R. v. Zaky, 2010 ABCA 95 at ¶10; R. v. Im , 2009 ONCA 101 at ¶17; R. v. Hengeveld , 2010 ONCA 60 at ¶5; R.

R) at ¶31] 4. If the appeal does not raise an issue significant to the administration of justice, an appeal that is merely “arguable” on its merits should not be granted leave to appeal. Leave to appeal should only be granted where there appears to be a clear error by the SCAC. [see M. (R.W.) at ¶37; R.R. at ¶32] 5. A second level of appeal is an appeal of the SCAC justice. It is to see if he or she made an error of law. The second level of appeal is not meant to be a second appeal of the provincial court decision. [see R.R. at ¶24; Chatur at ¶17] 6.

The fitness or leniency of a sentence is a factor a provincial appellate court can consider when deciding whether to grant leave. [see Chatur at ¶19; Im at ¶22] [ 22 ] To decide whether the appellant should be granted leave to appeal, I agree with the Crown’s submission that the following questions must be answered: a. Does this case raise an issue that is significant to the administration of justice? b. Are the merits of the appellant's case strong; is there a "clear" error of law? c.

Does the appellant face a significant deprivation of his liberty if he is not granted leave to appeal? [ 23 ] I will now address each question individually. A. Does this case raise an issue that is significant to the administration of justice? [ 24 ] This appeal may be important to the appellant. However, it does not raise an issue beyond the four corners of this case. It does not raise an issue that affects the administration of justice. [ 25 ] This appeal deals specifically with whether a conditional discharge could have been granted for a violent offence.

The Crown acknowledges that it was available to the judge. That specific issue has been dealt with a number of times in the past. Counsel for the appellant has provided us with a number of cases where conditional discharges have been granted for violent offences. There are also a large number of cases involving violent offences where conditional discharges were found to not be appropriate. A few examples of such cases referred to by the Crown are R. v. Rodrigues , 2008 CarswellOnt 3088 ; R. v. Aidaruse , 2012 ONCJ 415 ; R. v. Teclesenbet , 2009 ABCA 389 ; R. v. Dean , 2008 SKQB 201 ; and R. v.

MacIsaac , 2011 NSSC 345 . Unfortunately for Mr. Pottie, this is one of the cases where the sentencing judge chose not to impose a conditional discharge. [ 26 ] There is no new principle advanced here that has significance to the administration of justice. This case simply involves the application of well-established principles that are applicable to the singular circumstances of this case.

B. Are the merits of the appellant's case strong; is there a clear error of law? [ 27 ] There is no clear error of law by the SCAC judge. This is not a case where the appellant is alleging the SCAC judge applied the wrong standard of review or did not embark on a relevant consideration. This is a case where the SCAC judge disagreed with the appellant’s argument that the trial judge was predisposed not to grant a conditional sentence. [ 28 ] The SCAC judge clearly understood the position of the appellant. In his oral decision he said: I interpret the Defence’s position to be twofold.

One is being that the learned trial judge did not properly apply the public interest factor on these facts and on the basis of the offender as stated in

Section 730, somewhat a fitness of sentence analysis. And two, more specifically I think, Mr. Arnold would argue that the learned trial judge was under the impression that there was a prohibition on the availability of a discharge for Mr. Pottie. (p. 7) [ 29 ] The SCAC judge articulated the standard of review he was to apply and set out the statements made by the sentencing judge relied upon by the appellant to evidence the sentencing judge’s error. He then addressed the appellant’s argument: I do not consider this to be a statement that suggests Mr.

Pottie was not eligible for a Conditional Discharge as a starting proposition. I see these words as a statement that this offender, on these facts, should not get a Conditional Discharge. That

interpretation is borne out by the last sentence which I quote: “I don’t see it but I am prepared to hear you further if you’ve got anything further if you’ve got anything else you want to add.” And that’s from May 24 th as well. And later in in the context of a Conditional Sentence discussion: I am going to take a few days to think about this, not because I think a Conditional Discharge is appropriate. ... She said she wanted this time to “come to terms with what is the appropriate sentence”.

It’s my impression that the learned trial judge was focusing on jail or no jail. (p. 11) [ 30 ] The SCAC judge also addressed the sentencing judge’s comments about the message she considered Parliament to be sending to the courts.

In her decision she said: I think I must also consider that the message from Parliament of late is that there should be a movement away from community-based sentences for violent offences. ... (p. 43) [ 31 ] The SCAC judge had this to say about that comment: I am not sure why these words were used but I find they do not detract from the analysis she was doing, that being jail or no jail.

And they do not indicate that she was of the view that a Conditional Discharge was not available for violent offences and only available for trivial matters or cases of extreme provocation. (p. 13) [ 32 ] Finally, the SCAC judge, when addressing the public interest factors in light of Mr. Pottie’s many positive attributes, concluded: It was very obvious that the sentencing judge concluded that the degree of the assault and injury required an element of deterrence to others and therefore that a discharge was inappropriate.

This was an exercise of her discretion. ... (p. 15) [ 33 ] The appellant does not identify any error of law on the part of the SCAC judge. The appellant in this appeal is arguing the sentencing judge found the appellant was not eligible to receive a conditional discharge. This argument was rejected by the SCAC judge. [ 34 ] In essence, the appellant is asking this Court to undertake the exact same analysis the SCAC judge undertook and come to a different conclusion. That is not our role.

That is the same situation the Ontario Court of Appeal found itself in when it decided not to grant leave to appeal in R.R. (see ¶15). [ 35 ] Even if I were to assume that the appellant has raised an “arguable” error of law that does not mean it is an error worthy of a second appeal. As Chief Justice MacDonald said in R. v. T.R.A. , 2011 NSCA 115 , it is not every question of law which merits a second appeal.

In that case leave to appeal was denied specifically noting that the denial of leave should not be construed as an agreement with the state of the law as expressed by the SCAC. [ 36 ] I am not satisfied the appellant has identified a clear error of law on the part of the SCAC judge. C. Does the appellant face a significant deprivation of his liberty if he is not granted leave to appeal? [ 37 ] The appellant's 16 month probation order was concluded on March 9, 2013. [ 38 ] The only remaining consequence of the sentence for the appellant will be that he has a criminal record.

Is that a "significant deprivation of liberty"? In R. v. Im , another case involving a sexual assault, the appellant received a 6-month conditional sentence followed by a period of probation. In denying leave, the Ontario Court of Appeal found that the sentence did not amount to a “significant deprivation” of his liberty (¶22). I am of the same view in this case. The appellant received a community-based sentence. The conditions of his probation order were not overly restrictive.

The appellant's liberty was not "significantly" deprived. [ 39 ] The fitness of a sentence is also a factor we can consider in granting leave. R. v. Chatur is very similar to this case. In Chatur , the appellant pled guilty to assault causing bodily harm and uttering threats. He requested a conditional discharge. He was sentenced to a five month conditional sentence order. His appeal was denied at the SCAC. At the time of seeking leave to appeal to the British Columbia Court of Appeal, his conditional sentence order was complete. The British Columbia Court of Appeal refused to grant

leave to appeal. The court said the following: In my view, Mr. Chatur does not meet the test for leave to appeal on any of the proposed grounds of appeal, as none of them rise to the level of questions of law alone. Nor in my view do they raise important questions of law beyond Mr. Chatur's appeal or meet the requirement of any reasonable prospect of success.

More significantly, I am not persuaded that it would be in the interests of justice to grant leave to appeal from a sentence that falls within the range of appropriate sentences for offences of this nature and that has already been served. (¶19) (Emphasis added) [ 40 ] The appellant's sentence, here, falls within the appropriate range. The sentencing judge noted that it was a "lenient" sentence. She correctly noted that a term of jail was not unusual where there are offences of violence that result in some significant injury to an individual.

Like the British Columbia Court of Appeal, I am not persuaded that it is in the interests of justice to grant leave where the sentence is within the range of appropriate sentences and has already been served. Conclusion [ 41 ] Leave should be granted sparingly. There is nothing exceptional about this case. The issues raised by the appellant dealt with settled law and are not significant to the administration of justice. No further guidance is needed about who can or should receive a conditional discharge. [ 42 ] There is no clear error on the face of the SCAC judge's decision.

The appellant is attempting to re-argue the decision of the sentencing judge. The appeal of the decision of the sentencing judge has already been dismissed by the SCAC and should not be the focus of a further appeal to this Court. [ 43 ] I would deny leave to appeal. As a result, it is not necessary to address the merits of the appeal. Farrar, J.A. Concurred in: Fichaud, J.A. Beveridge, J.A.