Thursday, October 4, 2012

Leave to appeal from a summary conviction matter where accused acquitted at trial and convicted at first appeal

R. v. MacKay, 2012 ONCA 671 deals with leave to appeal to the Court of Appeal by an accused who was acquitted at trial but convicted on appeal.  The Court holds such cases are looked on more favorably, from a leave perspective, than cases where the accused is appeal a second time:


[20]       The leading case on this issue is R. v. R.(R.), 2008 ONCA 497, 90 O.R. (3d) 641. The starting point for the analysis, as stated by Doherty J.A. at para. 27, is that in the summary conviction appeal context, “[a]ccess to this court for a second appeal should be limited to those cases in which the applicant can demonstrate some exceptional circumstance justifying a further appeal.” Doherty J.A. went on to say, at para. 37, that leave to appeal should be granted in two categories of cases: (1) those with an arguable question of law that is significant to the general administration of justice; and (2) those where the summary conviction appeal judge seems to have made a clear error of law, even if the error may not have significance to the administration of justice.


[21]       The appellant submits that this case is different from R.(R.), and indeed most proposed appeals from decisions by summary conviction appeal judges, in that this will not be his second appeal since he was acquitted at trial. I agree with this submission; it is, in my view, an important contextual factor within which to address the two-part R.(R.) test.


[22]       Support for this conclusion is found in the recent decision of this court in R. v. O’Meara, 2012 ONCA 420, a drinking and driving case in which the accused was convicted at trial. The appeal was allowed and the summary conviction appeal judge entered an acquittal. The Crown sought and was granted leave to appeal and M. Brown R.S.J. (ad hoc) stated, at para. 25: “As well, I think there is some significance to the fact that while this is the second appeal of this matter, it is the Crown’s first appeal.” The appellant here is in the same position as the Crown was in O’Meara.


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