Docket: 1827-CR Gordon Coates Appellant - v. -, 2010 SKCA 152

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 152 Date: 20101213 Between: Docket: 1827-CR Gordon Coates Appellant - and - Her Majesty the Queen Respondent Coram: Lane, Smith & Caldwell JJ.A. Counsel: Robert L. Stevenson for the Appellant W. Dean Sinclair for the Respondent Appeal:

From: 2009 SKQB 193 Heard: November 18, 2010 Disposition: Leave to appeal denied Written Reasons: December 13, 2010 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Smith Caldwell J.A. [1] At trial, the judge convicted the appellant on two counts of making repeated telephone calls without lawful excuse and with theintent to harass, contrary to section 372(3) of the Criminal Code. The appellant appealed the conviction and sentence to the

summaryconviction appeal court, the Court of Queen’s Bench, and sought leave of that Court to adduce fresh evidence on the issue of lawfulexcuse and to show that, if there was harassment, it was not on the part of the appellant. [2] The

summary conviction appeal court judge allowed the conviction appeal and ordered a new trial but, in doing so, he saw noreason to rule on the application to adduce fresh evidence (see R. v. Coates, 2009 SKQB 193, 334 Sask. R. 167). [3] The Crown successfully appealed the order for a new trial to this Court and this Court remitted the matter back to the

summaryconviction appeal court judge to make a determination on the appellant’s application to adduce fresh evidence (see R. v. Coates, 2009SKCA 128, 343 Sask. R. 228). [4] By way of an affidavit dated April 23, 2009, the appellant sought to adduce evidence of previous charges of a similar nature thatwere brought against him but of which he was acquitted or that were stayed, the conduct of the trial judge, the Crown’s failure todisclose transcriptions of telephone messages, a variation order made with respect to the appellant’s access to his daughter, and matters of opinion.

By way of a second affidavit dated March 4th (presumably of this year) the appellant sought to introduce as exhibitstranscriptions of the four telephone messages that were disclosed after trial and an obituary notice. [5] The

summary conviction appeal court judge issued a fiat (March 10, 2010 - unreported) dismissing the appellant’s appeals againstconviction and sentence and dismissing the appellant’s application to adduce fresh evidence. The appellant now seeks leave to appealfrom that decision. [6] Section 839(1) of the Criminal Code and the case law are clear: An appellant must obtain leave of this Court to appeal from adecision of the

summary conviction appeal court and the right of appeal is limited to those questions of law alone that arise from thesummary conviction appeal court decision. See: R. v. Custer, (SK CA), [1984] 4 W.W.R. 133 (Sask. C.A.), R. v.Kroeger (1992), (SK CA), 97 Sask. R. 263 (C.A.), R. v. Emery (1981), (BC CA), 61 C.C.C. (2d) 84(B.C.C.A.), and R. v. Travers, 2001 NSCA 71, 154 C.C.C. (3d) 426, among others. It follows that this Court does not have thejurisdiction to entertain a

summary conviction sentence appeal based on the appropriateness or fitness of a sentence, see R. v. Nistor,2010 SKCA 62, 350 Sask. R. 238 at para. 4. [7] Given the up-and-down history of this case, the appellant’s application for leave to appeal gave rise to several knotty issues as to thescope of appeal and the questions that this Court could properly consider.

We reserved our decision on the leave application and heardsubmissions from counsel on all matters that they might wish to address. [8] If we cut through the procedural knots to the heart of this matter, there is no doubt that the appellant made repeated telephone callsto his ex-wife’s telephone number and that the voicemail messages he left were harassing in nature. The evidence in this respect wasuncontradicted at trial and is not contradicted by any of the fresh evidence the appellant seeks to adduce.

With that in mind, even if thisCourt were inclined to grant leave, and to allow the application to adduce fresh evidence, and to accept that fresh evidence as the truth,the evidence the appellant seeks to adduce does not establish or support his contention that he had lawful excuse to make repeated

telephone calls with the intent to harass. [ 9 ] Given the foregoing, I would deny the application for leave to appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 13 th day of December, A.D. 2010. “Caldwell J.A.” ______________________ CALDWELL J.A. I concur. “Lane J.A.” LANE J.A. I concur. “Smith J.A.” SMITH J.A.