2022 QCCA 372, 2022 QCCA 372

Azubuike c. R. 2022 QCCA 372 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007736-224 ( 500-36-009971-212 , 500-36-009910-210, 500-01-207497-204) MINUTES OF HEARING DATE: March 14, 2022 CORAM: THE HONOURABLE MARIE-JOSÉE HOGUE, J.A. STÉPHANE SANSFAÇON, J.A. CHRISTINE BAUDOUIN, J.A. APPELLANT EKENS AZUBUIKE Unrepresented RESPONDENTS COUNSEL HER MAJESTY THE QUEEN Mtre DENIS TROTTIER ( Directeur des poursuites criminelles et pénales ) By videoconference COPART CANADA INC.

Me NICOLAS MANCINI ( Fasken Martineau DuMoulin ) By videoconference On appeal from a judgment rendered on January 21, 2022 by the Honourable Pierre Labrie of the Superior Court , District of Montreal . DESCRIPTION: Application to dismiss an appeal (Rule 50

(2) R.C.A.Q.M.C .) Urgent motion for stay of execution of order dated January 21, 2022 (Rule 47 R.C.A.Q.M.C .) Notice of presentation of constitutional questions Clerk at the hearing : Robert Osadchuck Courtroom: Pierre-Basile-Mignault

HEARING 9:30 Commencement of the hearing. Identification of the parties. 9:30 Submissions by Mtre Trottier. 9:35 Submissions by Mr. Azubuike. 9:36 Submissions by Mtre Mancini. 9:45 Reply by Mtre Trottier. 9:48 Recess of the hearing. 9:57 Resumption of the hearing. 9:57 By the Court: judgment – see page 4. Robert Osadchuck, Clerk at the hearing JUDGMENT [ 1 ] The Court is seized with three motions: 1) an urgent motion for stay of execution of order dated January 21, 2022, on grounds that appeal is not automatic stay, 2) a notice of presentation of constitutional question , both presented by the Appellant Mr.

Ekens Azubuike ("Mr. Azubuike"), and, 3) a motion to dismiss appeal presented by the Crown alleging that the Court lacks jurisdiction to entertain the appeal filed. *** [ 2 ] On January 28, 2021, Copart Canada Inc. presented a motion from lawful owner to return seized things under section 490(10) Cr . C . [ 3 ] Although Mr. Azubuike opposed this motion, it was granted by the Court of Quebec (the Honourable Justice Lori-Renée Weitzman) on April 9, 2021. [ 4 ] On April 13, 2021, Mr.

Azubuike brought this judgment to appeal before the Court but a motion to dismiss his appeal was granted by the Court on June 18, 2021, on the ground that the appeal should have been brought before the Superior Court. [ 5 ] Mr.

Azubuike, on June 21, 2021, brought an appeal to the Superior Court but it was dismissed on January 21, 2022 (the Honourable Justice Pierre Labrie). [ 6 ] On January 24, 2022, he filed a notice of appeal of the Superior Court judgment and, thereafter, filed the above-mentioned urgent motion for stay of execution and notice of presentation of constitutional questions. *** [ 7 ] It is a well-known principle that in criminal law there is no appeal without a text. It is also essential that a second level of appeal, if it exists, be provided clearly by law. [ 8 ]

Section 490 C.Cr . provides for an appeal of the initial order before the Superior Court but does not provide for an appeal of the Superior Court judgment. In R. c. Blanchette [1] , the Court ruled that such a right of appeal from the Superior Court’s judgment does not exist. [ 9 ] Therefore, the Court lacks jurisdiction to entertain the appeal filed by Mr. Azubuike. Lacking jurisdiction over the appeal, the Court also lacks jurisdiction over both the motion to suspend the execution of the Superior Court’s judgment and the notice of presentation of constitutional question.

FOR THESE REASONS, THE COURT: [ 10 ] GRANTS the motion to dismiss the appeal ; [ 11 ] DISMISSES the appeal; [ 12 ] DISMISSES the urgent motion for stay of execution of order ; [ 13 ] DISMISSES the notice of presentation of constitutional question .

MARIE-JOSÉE HOGUE, J.A. STÉPHANE SANSFAÇON, J.A. CHRISTINE BAUDOUIN, J.A.