Background
Peter Hirny was convicted in the Provincial Court of British Columbia of two counts of assaulting a peace officer. The charges arose from a December 2020 altercation after officers attended his father’s apartment and apprehended Hirny under s. 28(1) of British Columbia’s Mental Health Act. His father had reported a recent assault, displayed red marks on his neck, and told police that Hirny had schizophrenia, was not taking medication, and was behaving increasingly erratically.
Hirny argued that the officers were not acting in the lawful execution of their duties because the statutory conditions for a warrantless mental-health apprehension were not satisfied. The trial judge rejected that argument, relying on the information supplied by Hirny’s father and the officers’ observations, and convicted him. The British Columbia Supreme Court dismissed his summary conviction appeal in 2024.
Hirny then sought leave under s. 839 of the Criminal Code to bring a further appeal. He argued that the summary conviction appeal judge wrongly declined to consider whether police should have pursued the warrant procedure under s. 28(3) of the Mental Health Act and erred in upholding the legality of the s. 28(1) apprehension.
The Court’s Holding
Justice Abrioux, sitting in chambers, dismissed the application for leave to appeal. Although Hirny’s proposed grounds raised questions of law alone, the court found no error in the summary conviction appeal judge’s discretionary refusal to consider the s. 28(3) argument. That argument was legally and factually distinct from the issue litigated at trial, had not been raised before the trial judge, and would have required a materially different evidentiary and interpretive record.
The court acknowledged that the relationship between the warrantless apprehension power in s. 28(1) and the warrant procedure in s. 28(3) presented an arguable statutory-interpretation question. It nevertheless held that the interests of justice did not support deciding that question for the first time in this case.
The court also found no legal error in the conclusion that Hirny’s apprehension was justified under s. 28(1). The summary conviction appeal judge applied the correctness standard, considered the full evidentiary record, and used the required objective reasonable-person standard. Because the proposed appeal did not justify the exceptional step of permitting a second summary conviction appeal, leave was denied.
Key Takeaways
- Leave for a second appeal in a summary conviction proceeding is granted sparingly and depends ultimately on the interests of justice.
- An appellate court may decline to consider a new argument when it was not litigated at trial and would require a different evidentiary and statutory-interpretation record.
- The legality of a warrantless apprehension under s. 28(1) of British Columbia’s Mental Health Act is assessed objectively using the information received and the officers’ observations in their totality.
Why It Matters
The decision reinforces the narrow scope of second appeals in Canadian summary conviction matters: identifying a question of law is not enough without sufficient importance and merit to make appellate review consistent with the interests of justice.
It also leaves unresolved the broader question whether police must consider the warrant procedure in s. 28(3) before using the warrantless apprehension power in s. 28(1). The court treated that issue as arguable but concluded that this case lacked the record needed to decide it.