R. v. Burry

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: R. v. Burry, 2025 NLCA 23 Date: June 25, 2025 Docket Number: 202301H0052 Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. BETWEEN: DEVON BURRY APPLICANT/APPELLANT AND: HIS MAJESTY THE KING RESPONDENT Coram: L.R. Hoegg, F.J. Knickle and D.M. Boone JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador General Division 202101G0354 (2023 NLSC 120) Appeal Heard: February 12, 2025 Judgment Rendered: June 25, 2025 Reasons for Judgment by: L.R. Hoegg J.A. Concurred in by: F.J. Knickle and D.M. Boone JJ.A. Counsel for the Applicant/Appellant: Self-represented Counsel for the Respondent: Jeffrey A. Summers Page 2 Authorities Cited: CASES CITED: R. v. Newfoundland Recycling Limited, 2009 NLCA 28; R. v. Quinlan Brothers Ltd., 2011 NLCA 22; R. v. Crews, 2015 NLCA 56; R. v. Francis, 2011 NSCA 113; R. v. C.S.M., 2004 NSCA 60; R. v. McLean, 2020 NLCA 39; R. v. Ralph, 2008 NLCA 70; R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405; R. v. R.R., 2008 ONCA 497; R. v. Pottie, 2013 NSCA 68; R. v. Burry, 2022 NLCA 11, leave to appeal to SCC refused, 40249 (29 September 2022). STATUTES CONSIDERED: Criminal Code, RSC 1985, c. C-46, sections 839, 486.3(2); Canada Evidence Act, RSC 1985, c. C-5. TEXTS CONSIDERED: E.G. Ewaschuk, “Criminal Pleadings & Practices in Canada, 3rd Edition” (4 June 2025) online: (Proview) Thomson Reuters Canada. L.R. Hoegg J.A.: INTRODUCTION [1] Devon Burry was convicted in Provincial Court of criminal harassment and a breach of probation. He appealed his convictions to the Summary Conviction Appeal Court (the “SCAC”) and they were upheld. He seeks to appeal the SCAC decision to this Court pursuant to section 839 of the Criminal Code, RSC 1985, c. C-46 (the “Code”). THE LAW [2] The pertinent part of section 839 of the Code reads: Appeal on question of law 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 judge thereof, 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; … [3] As shown, section 839 of the Code does not confer a right to appeal a decision of an SCAC. Rather, an appeal of an SCAC decision can only be taken if this Court Page 3 grants leave to do so. Further, the section requires that such an appeal can only “be taken on any ground that involves a question of law alone”. [4] This was explained in R. v. Newfoundland Recycling Limited, 2009 NLCA 28, by Rowe J.A. (as he then was), who stated: [13] First, given the requirement in s. 839(1) that an appeal to this Court can only “be taken on any ground that involves a question of law alone”, this Court has no jurisdiction to go beyond questions of law into questions of fact or mixed law and fact. … [5] In Newfoundland Recycling, nine grounds of appeal were alleged, of which six were dismissed as not involving questions of law despite assertions that they did, Rowe J.A. explained: [12] Notwithstanding that all nine grounds of appeal are stated to be questions of law, grounds (iii) to (viii) are questions of fact or mixed law and fact wherein counsel for the appellant seeks to have this Court review the evidence and make findings different from those of the trial judge. … [6] This Court ruled that the three remaining grounds of appeal involved two questions of law: (1) whether the test for strict liability was properly applied, and (2) how words in an Information affected the elements of the offence to be proved. These grounds of appeal alleged errors respecting whether the SCAC Judge applied the wrong law and in determining whether something was required to be proved. These were clear questions of law. [7] In R. v. Quinlan Brothers Ltd., 2011 NLCA 22, Mercer J.A. of this Court reasoned that the question of law alone required to meet the leave criterion involved whether the SCAC Judge misstated or misapplied the law pertaining to the asserted grounds of appeal. Quinlan Brothers Ltd. was convicted by the Provincial Court of breaching section 63(1) of the Fisheries Act, RSC 1985, c. F-14, by making a false or misleading statement in writing to an authority designated by a fishery officer and its appeal of that decision to the SCAC was dismissed. Quinlan Brothers Ltd. sought leave to appeal the SCAC decision in this Court on the basis that the SCAC Judge had rejected its due diligence defence. In denying leave to appeal, Mercer J.A.: [10] …[t]here was no contention, nor any basis for such contention, that either the trial judge or the Summary Conviction Appeal Court judge misstated the law pertaining to the defence of due diligence. The submissions centered on whether the Page 4 appellant exercised reasonable care, i.e., due diligence – in the circumstances. That is a matter of mixed fact and law and leave to appeal should therefore be denied … . (Underlining added.) [8] The Court went on to reject Quinlan Brothers Ltd.’s second argument for leave, which concerned the relevance of the roles of other parties to its actions. The Court ruled that the roles of other parties did not detract from Quinlan Brothers Ltd.’s obligations, and accordingly, did not raise a question of law respecting application of the legal principles of due diligence (at paras. 12-14). The Court denied leave to appeal, saying: [15] This appeal involved a question of mixed fact and law for which an appeal does not lie to this Court. … [9] In R. v. Crews, 2015 NLCA 56, Rowe J.A., quoting from another case, again stated that “[t]he error in law required to vest jurisdiction in [the Court of Appeal] is an error of law on the part of the Summary Conviction Appeal Court judge, not the trial judge.” (at para. 4). [10] Similarly, in R. v. Francis, 2011 NSCA 113, the Nova Scotia Court of Appeal, reiterating its previous ruling in R. v. C.S.M., 2004 NSCA 60, stated that the issue in a section 839 appeal is “whether the SCAC erred in law in the statement or application of the principles governing the review by the SCAC of the trial verdict” (Francis, at para. 7; C.S.M., at para. 26). [11] In C.S.M., Fichaud J.A. explained that the question of law to obtain leave is error in the SCAC Judge’s statement or application of the law: [26] Under s. 839(1), the issue is whether the SCAC has erred in “law alone”. The Court of Appeal is considering an appeal from the SCAC, not a de novo appeal from the trial court. This Court must determine whether the SCAC erred in law in the statement or application of the principles governing the review by the SCAC of the trial verdict. … [12] In R. v. McLean, 2020 NLCA 39, the appeal was based on factual error alleged to have been made by the trial judge, and which the SCAC Judge had addressed in his review of the trial judge’s decision. In denying leave to appeal, Welsh J.A. stated: Page 5 [9] … Ms. McLean’s appeal does not raise a question of law. On that basis alone, leave to appeal would be denied. … [13] See also R. v. Ralph, 2008 NLCA 70, where one of the grounds of appeal was whether the appellant had established due diligence in ensuring that a reasonable process existed for not exceeding his quota of snow crab. This Court denied leave on the basis that the question was one of mixed fact and law, and not one of law alone (at para. 16). [14] Questions of law typically arise in section 839 appeals when the law governing a live issue or ground of appeal has been misstated or misapplied by the SCAC Judge. This is not a closed category. Matters of jurisdiction, statutory interpretation, and misapprehension of evidence are also questions of law. However, posing abstract questions respecting legal concepts that have no relationship to the proposed appeal does not mean that questions of law alone are involved. The question of law alone that is asserted in a ground of appeal “must relate directly and concretely to the judgment being appealed” E.G. Ewaschuk, “Criminal Pleadings & Practices in Canada, 3rd Edition” (4 June 2025) online: (Proview) Thomson Reuters Canada, at s. 23:17). [15] What “a question of law alone” is was recently addressed by the Supreme Court of Canada in R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, which involved a Crown appeal of an accused’s acquittal of a charge of dangerous driving causing death. In Chung, the Court explains: [11] Errors of law arise, for example, where “the legal effect of findings of fact or of undisputed facts raises a question of law” and where there is “an assessment of the evidence based on a wrong legal principle” (J.M.H., at paras. 28-30). These two types of errors are somewhat similar; they both address errors where the trial judge’s application of the legal principles to the evidence demonstrates an erroneous understanding of the law, either because the trial judge finds all the facts necessary to meet the test but errs in law in its application, or assesses the evidence in a way that otherwise indicates a misapprehension of the law. [16] Even when a proposed appeal of an SCAC decision involves a question of law alone, section 839 provides an appellate court with discretion respecting whether to grant leave. It is important to appreciate why this is so. [17] The law provides that all persons convicted of criminal offences have a right to appeal their convictions. If a person is convicted of a summary conviction offence, Page 6 the appeal is to the SCAC. If a person is convicted of an indictable offence, the appeal is to the Court of Appeal. Both the SCAC and the Court of Appeal have the same broad powers to review the proceedings of the court below and the same broad powers to correct errors and effect a remedy. [18] Leave to appeal SCAC decisions is granted selectively because not all appeals of SCAC decisions merit a second full appeal. SCAC decisions involve summary conviction offences, which are less serious than indictable offences, and attract lower penalties. If appeals from SCAC decisions were as of right, an appellant appealing an SCAC decision would enjoy two full appeals – first to the SCAC and then to the Court of Appeal – respecting a relatively minor matter, whereas an appellant convicted of a serious indictable offence would have only one appeal to the Court of Appeal. This does not make sense, nor is it fair, as Doherty J.A. observed in R. v. R.R., 2008 ONCA 497, saying that “no sensible criminal law policy … would justify more extensive rights of appeal in relatively minor criminal matters than those available in the most serious criminal cases” (at para. 26). [19] The Nova Scotia Court of Appeal came to the same conclusion in R. v. Pottie, 2013 NSCA 68: [20] … 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, [parties to] summary matters would essentially have more appeal rights than [parties to] some of the most serious criminal cases at the Supreme Court of Canada… [20] In considering how Courts of Appeal must exercise their discretion when a question of law is raised on an appeal in Newfoundland Recycling, Rowe J.A. set out the test for when this Court should exercise its discretion to grant leave when a question of law alone is involved in a proposed appeal: [9] Thus, to obtain leave to appeal pursuant to s. 839(1): (a) the appeal must “be taken on a ground that involves a question of law alone”, and (b) the ground(s) of appeal must be such that: (i) either the ground of appeal has a “reasonable possibility of success”, or Page 7 (ii) “the proposed question of law [has significance] to the administrative of justice”. [21] In Newfoundland Recycling the Court went on to consider whether the grounds of appeal that had raised questions of law had a reasonable possibility of success or whether they had significance to the administration of justice. The Court ruled that the SCAC Judge’s decision respecting the application of the test for strict liability was clear and persuasive so there was no reasonable possibility of success on the ground involving application of the law of strict liability, and that the impugned words in the Information were “mere surplusage” that could not affect the verdict as it was proved regardless, meaning that that ground had no reasonable possibility of success (Newfoundland Recycling, at paras. 15-19). [22] Some appellate courts emphasized that leave should be granted sparingly. In Newfoundland Recycling, Rowe J.A. stated he would not go so far as to say that. Rather, he stated that an “intended appellant must meet the appropriate test for leave” …, and that the “test should not be unduly stringent” (at para. 7). [23] In R. v. Burry, 2022 NLCA 11, leave to appeal to SCC refused, 40249 (29 September 2022), this Court stated: [11] Respectfully, I am of the view that in its determination of whether a ground of appeal “involves a question of law alone”, the Court: - conducts a straight forward characterization of the grounds of appeal; - does not apply an unduly stringent test; and - does not conduct a merits assessment of the grounds of appeal at this stage of the analysis. [24] In summary, jurisdiction to hear an appeal of an SCAC decision is vested in this Court when a question of law alone is raised. This Court has no jurisdiction to hear appeals based on factual errors or questions of mixed fact and law. Asking this Court to revisit evidence and come to a different conclusion than that of the SCAC Judge does not involve a question of law alone. If a question of law is raised, then this Court may grant leave if the appeal has a reasonable possibility of success, and/or the question of law has significance to the administration of justice. Page 8 ANALYSIS [25] Mr. Burry alleges six grounds of appeal. I will address each in turn. [26] The first ground of appeal relates to the Crown’s pre-trial application to have court-appointed counsel cross-examine the complainant. Section 486.3(2) of the Code provides for the Court to appoint counsel if requested by the Crown when a defendant or accused is self-represented. [27] The SCAC Judge ruled that it was an oversight for the applications judge to not hear Mr. Burry on the section 486.3(2) application before stating she was granting it, but the oversight could be cured because there was no miscarriage of justice. Mr. Burry says the SCAC Judge erred in failing to find miscarriage of justice. [28] The applications judge did hear from Mr. Burry on the Crown’s application. He had filed a written submission before the application was heard requesting Jonathan Noonan, and at the hearing he “piped up” (as he says) that he wanted Jonathan Noonan appointed as counsel because he was familiar with him. A discussion ensued, and Mr. Noonan was appointed. While the SCAC Judge was mistaken in saying that Mr. Burry was not heard before she made the order, she made no error in dismissing this ground of appeal. No question of law has been raised in this ground of appeal. [29] Secondly, Mr. Burry alleges that the SCAC Judge erred by concluding that although the trial judge provided inadequate assistance to him respecting whether he should testify in his own defence, there was no miscarriage of justice. The SCAC Judge ruled that the trial judge should have advised Mr. Burry of the risk of being cross-examined on his criminal record before he decided to testify, and further, that the trial judge ought to have invited Mr. Burry to make submissions on how his criminal record could be used. The errors identified by the SCAC Judge were not the basis for this ground of appeal because Mr. Burry agreed with the SCAC Judge that the trial judge had erred in how he handled the matter; it was the conclusion of the SCAC Judge that this did not result in a miscarriage of justice that Mr. Burry challenged. [30] After the Crown closed its case before the trial judge, the Crown submitted that he wanted to cross-examine Mr. Burry on his criminal record to establish the identity of the complainant as the victim of Mr. Burry’s previous conviction on which the breach of probation charge was based, in order to support the Crown’s Page 9 contention that the complainant feared Mr. Burry (fear being relevant to the criminal harassment charge). The Crown further explained that Mr. Burry’s criminal record in this regard was already before the Court given the breach of probation charge, and also that the complainant’s name was stated in the criminal harassment charge. [31] The trial judge explained to Mr. Burry that he could testify, and that if he did, he could be cross-examined by the Crown. The trial judge also explained the law respecting the use of a criminal record as per the Canada Evidence Act, RSC 1985, c. C-5. [32] The trial judge ruled that the Crown could cross-examine Mr. Burry on his previous conviction respecting the complainant. There was a discussion, and the cross-examination proceeded. [33] Judges have a duty to assist self-represented accused persons, but this duty does not extend to providing legal advice, nor, as is contended in this case, to identifying risks an accused person is taking by testifying. Such explanation is in the nature of legal advice, which a judge as a neutral arbitrator is not permitted to give. In this case, the trial judge met his obligation to Mr. Burry, by saying: THE COURT: So, Mr. Burry, that’s the case for the Crown. So at this juncture in any criminal trial, the accused has the option to testify, if they wish. No accused person is obliged to testify if they don’t wish to. If you do testify, of course you could be subject to being cross-examined by the Crown attorney. Likewise, the thing to remember is that things that are said from the body of the court, like where you’re sitting now, they can’t be evidence. The only part that can be evidence is evidence that’s given under oath through the witness box. So it’s a decision for an accused person to make and it’s up to you at this point as to whether or not you wish to give evidence or to call a witness. MR. BURRY: I’ll testify. THE COURT: Alright, sir. So did you want to come forward and get in the witness box, sir? Did you have any notes you wanted to bring with you or anything? MR. BURRY: No. [34] Mr. Burry was fully aware of the charges he was facing, the evidence before the Court, and risks associated with being cross-examined. Page 10 [35] In the result, there was no error on the part of the trial judge on which a miscarriage of justice could rest. Although the SCAC Judge erred in identifying an error, she did not err in dismissing this ground of appeal. No question of law is raised by this ground of appeal. [36] Thirdly, Mr. Burry argues that the SCAC Judge did not consider the cumulative effect of the procedural errors she found that the trial judge had made, saying that, taken together, they caused unfairness such that a stay or acquittal must be ordered. The record shows that this is not so. In fact, the SCAC Judge did consider whether errors she found had cumulatively caused an unfair trial, and ruled that they did not. Even if the SCAC Judge was correct in finding errors by the trial judge, she would still have been correct in finding that they would not amount to a miscarriage of justice. Mr. Burry simply wants this Court to review the record and come to a different conclusion. This ground of appeal raises no question of law. [37] Fourthly, Mr. Burry alleges that the SCAC Judge erred in concluding that the trial judge’s reasons sufficiently explained material inconsistencies in the complainant’s evidence, and by not addressing his allegation that the complainant had a motive to fabricate. The sufficiency of reasons is, in principle, a question of law. However, Mr. Burry’s appeal is based on his view that the facts found by the trial judge were wrong. The SCAC Judge decided that the facts were soundly supported by the evidence. Mr. Burry has neither asserted nor shown how the SCAC Judge misstated or misapplied the law or misapprehended the evidence respecting this ground of appeal. The SCAC Judge fully considered the trial judge’s factual findings in her review of his decision. Mr. Burry simply disagrees with the SCAC Judge’s conclusion, and wants this Court to revisit the trial judge’s factual findings and come to a different conclusion. That is not this Court’s role. No question of law is raised in this ground of appeal. [38] Fifthly, Mr. Burry alleges that the SCAC Judge erred in ruling that the trial judge’s conviction on the harassment charge was reasonable. The reasonableness of a verdict is a question of law. However, Mr. Burry does not assert or show any error in the SCAC Judge’s approach to or analysis of this issue. He simply disagrees with her conclusion and wants this Court to revisit the trial judge’s decision and come to a different result. This argument does not raise a question of law. [39] Sixth, Mr. Burry alleges that the SCAC Judge erred in concluding that police officer Abbott had reasonable and probable grounds to charge him with criminal harassment. Mr. Burry raised this issue for the first time in the SCAC. He put Page 11 forward no legal basis for his argument in the Provincial Court, the SCAC, or this Court. Mr. Burry’s bald and unsupported allegation that no grounds existed to lay the charges against him has no concrete relationship to his appeal. [40] The time is long past for consideration of whether grounds existed for the charges laid against Mr. Burry. He has been convicted of the charges, and as will be clear from this decision, the convictions will stand. No question of law arises from this ground of appeal. DISPOSITION [41] In the result, I would deny Mr. Burry’s application for leave to appeal. _____________________________ L.R. Hoegg J.A. I concur:_____________________________ F.J. Knickle J.A. I concur:_____________________________ D.M. Boone J.A.