2013 SKCA 142 Date:, 2013 SKCA 142

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 142 Date: 2013-12-31 Between: Docket: CACR2267 Terrance Gilchrist Appellant - and - Her Majesty the Queen Respondent Coram: Jackson, Ottenbreit and Caldwell JJ.A. Counsel: Michael W. Owens for the appellant W. Dean Sinclair for the respondent Appeal: From: 2011 SKQB 445 Heard: May 16, 2013 Disposition: Leave to appeal denied Written Reasons: December 31, 2013

By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Caldwell OTTENBREIT J.A. [1] The facts and background of this case are straight forward. Terrance Gilchrist was charged with two offences: (

i) impaireddriving contrary to s. 253(1)(

a) of the Criminal Code; and (ii) operating a motor vehicle with a blood alcohol concentration exceeding 80milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1)(

b) of the Criminal Code. When the trial of these chargescommenced in the Provincial Court, Mr. Gilchrist made a preliminary application for a stay of both charges. He argued that his s. 7Charter rights had been breached as a result of the erasure by the police of a certain video which had been recorded at the RCMPdetachment on the day and at the time Mr. Gilchrist was present at the detachment in connection with his charges. [2] At issue before the trial judge was whether Mr.

Gilchrist had discharged the onus upon him to show that the police video whichhad been erased might have contained evidence relevant to his right to make full answer and defence, and whether such erasureprejudiced that right thereby mandating a stay of the charges. [3] The trial judge granted Mr. Gilchrist’s application for a stay on the basis that the video contained evidence respecting thecondition of Mr.

Gilchrist with respect to impairment by alcohol and evidence respecting the provision to him of his rights to counsel. [4] The Crown appealed the decision of the trial judge to the Court of Queen’s Bench pursuant to s. 813 of the Criminal Code. Thesummary conviction appeal court judge, in a decision found at 2011 SKQB 445, allowed the appeal on the basis that there was noevidence before the trial court at that time that the erased video had contained content related to whether Mr.

Gilchrist had been given hisright to counsel and there was no evidence generally demonstrating how the contents of the video might have been relevant or useful toMr. Gilchrist in making full answer and defence to the charges. The

summary conviction appeal court judge set aside the stay withoutprejudice to Mr. Gilchrist’s right to pursue the stay once trial evidence had been adduced. He remitted the matter to the Provincial Courtfor trial. [5] Mr. Gilchrist now appeals to this Court under s. 839(1) of the Criminal Code which reads as follows: 839(1) Subject to subsection (1.1), an appeal to the court of appeal, as defined in

section 673 may, with leave of that court or a judgethereof, be taken on any ground that involves a question of law alone, against (

a) a decision of a court in respect of an appeal under

section 822; or (

b) a decision of an appeal court under

section 834, except where that court is the court of appeal. [6] An appeal under s. 839 can therefore only be taken on a question of law alone and then only with leave of this Court. [7] It is well accepted that where the burden of proof is on the accused it is an error of law for the trial judge to make a finding offact for which there is no evidence. R. v. H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197; R. v. B.(G.), (SCC), [1990] 2S.C.R. 57; R. v. Schuldt, (SCC), [1985] 2 S.C.R. 592. [8] Mr. Gilchrist’s grounds of appeal can be fairly said to raise the following question of law: Did the

summary conviction appealcourt judge err in finding that the trial judge erred by determining that there was any evidence that the content of the video may havebeen relevant or useful to him to make full answer and defence and that Mr. Gilchrist had discharged his onus to prove that the erasure ofthe video constituted a s. 7 Charter breach. [9] The Crown argues that leave to appeal should be denied in this case because the

summary conviction appeal court judge saidnothing more than Mr. Gilchrist had failed to prove the missing evidence was relevant and had failed to demonstrate why a stay wasappropriate. The Crown submits that even if Mr. Gilchrist’s appeal raises a question of law, that question of law has little realsignificance beyond the facts of this case. The Crown argues that this Court should therefore exercise its discretion and refuse leave toappeal. [10] If in fact Mr. Gilchrist has raised a question of law, that does not mean that the Court must grant leave.

The relevant jurisprudenceregarding leave has been summarized by Doherty J.A. in R. v. R.(R.), 2008 ONCA 497, 234 C.C.C. (3d) 463, at paras. 29-30: 29 … In R. v. Zamfirov (1996), (ON CA), 92 O.A.C. 317 (C.A.), Carthy J.A. was faced with such a motion. Inrefusing to grant leave to appeal under s. 839, he said at paras. 6-7: [T]he applicant presents fact oriented questions of law which have no general application and, while the grounds are not frivolous, it ismy opinion that the chances of success in setting aside the verdicts is very modest.

This is the type of case that should not be treated as one deserving a third hearing. 30 The two factors identified by Carthy J.A., the significance, beyond the specific case, of the proposed question of law to theadministration of justice in the province, and the strength of the appeal have featured prominently in other provincial appellate courtdecisions that have considered applications under s. 839: see R. v. Hunt (1998), (BC CA), 108 B.C.A.C. 218 (C.A.)(Hall J.A. in chambers); R. v. Breeden, 2008 BCCA 145 , [2008] B.C.J.

No. 582 (QL) (C.A.) (Lowry J.A. in chambers); R. v.Open Sky Inc. (1996), (MB CA), 110 Man. R. (2d) 153 sub nom. R. v. O’Connor (C.A.) (Lyon J.A. in chambers); R.v. Watson (2007), 2007 PESCAD 18 , 50 C.R. (6th) 340 sub nom. R. v. Biroc (P.E.I. Sup. Ct. App. Div.); and R. v. Joehnck,2006 SKCA 68. Our Court has, in R. v. Mellquist (No. 2) (1988), (SK CA), 68 Sask. R. 200 (C.A.), and R. v. Vandal, 2009 SKCA 79,331 Sask. R. 171, also held that the point of law must be of sufficient importance to warrant the grant of leave. [11] The Crown makes a cogent submission respecting the denial of leave.

This is an appeal where there is only a modest chance ofsuccess and the questions of law raised by Mr. Gilchrist are not of sufficient importance to warrant granting of leave. Leave to appeal istherefore denied. DATED at the City of Regina, in the Province of Saskatchewan, this 31st day of December, A.D. 2013. “Ottenbreit J.A.” Ottenbreit J.A. I concur “Ottenbreit J.A.” for Jackson J.A. I concur “Caldwell J.A.” Caldwell J.A.